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    What If Christine O’Donnell Were Right About The First Amendment?

    What If Christine O’Donnell Were Right About The First Amendment?

    The mainstream media and blogosphere have erupted because in a radio debate Christine O’Donnell appeared to dispute whether “separation of church and state” was required by the First Amendment.  (O’Donnell’s campaign walked back the position after the debate, saying O’Donnell merely meant that the words were not in the First Amendment.)

    The concept of separation of church and state is not, indeed, in the wording of the First Amendment.  Rather, as explained in the 1984 U.S. Supreme Court decision in Lynch v. Donelly:

    This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is

    to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.

    Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

    At the same time, however, the Court has recognized that

    total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.

    Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [p673]

    The Court has sometimes described the Religion Clauses as erecting a “wall” between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [n1] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

    The reference to Jefferson relates to this passage from a letter Jefferson wrote in 1802, as recited in the 1878 case Reynolds v. United States (emphasis mine):

    “Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

    So, O’Donnell unquestionably did not agree with the popular liberal conception that the First Amendment by its written terms requires a “separation of church and state,” but she was not wrong.

    And what an embarrassment to Widener Law School that as soon as O’Donnell questioned whether “separation of church and state” was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter. 

    And if O’Donnell’s imperfect — or perhaps nuanced? — understanding of the First Amendment were so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O’Donnell:

    “Government shall make no establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads “Congress shall make no law respecting an establishment of religion.”)

    Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment  which led to O’Donnell’s supposed major gaffe about the Establishment Clause, and how the press has taken O’Donnell’s comments out of context:

    O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.

    Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.

    A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.

    Update:  See also:

    Update 10-21-2010:  In an interview with ABC News, O’Donnell explained her position in terms evidencing a nuance and understanding far beyond those of the Widener Law School crowd:

    During Tuesday night’s debate with Democratic opponent Chris Coons, O’Donnell challenged Coons to show where the Constitution requires separation of church and state, drawing swift criticism from her opponent, laughter from the audience and yet another media firestorm.

    “It’s really funny the way that the media reports things,” she told ABC News. “After that debate my team and I we were literally high fiving each other thinking that we had exposed he doesn’t know the First Amendment, and then when we read the reports that said the opposite we were all like ‘what?'”

    O’Donnell explained her line of questioning to Coons was not because she didn’t know the First Amendment, but to the make the point the phrase “separation of church and state” does not appear anywhere in the Constitution. The Supreme Court has interpreted the First Amendment’s declaration that Congress “shall make no law respecting an establishment of religion” as a legal separation between government and faith.

    “I asked him where in the Constitution is the phrase ‘separation of church and state,'” O’Donnell recounted. “He said the First Amendment. I followed up with, ‘Can you name the five freedoms that are guaranteed to us that are protected by the First Amendment?’ And he could not.”

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    Comments


    Many who attack Christine O'Donnell in the comments section here seem to want to believe that she really wasn't familiar with the first amendment when she challenged Coons with "That's in the First Amendment?"

    They want to believe that Christine wasn’t challenging the "government" part of Coons misquote and was instead really unfamiliar with the "make no establishment of religion" part.

    But this is ridiculous:

    (1) She fully knew that criticism about here support of creationism was headed her way. And she clearly understood that liberals like Coons believe that creationism = religion. And she knew that this would lead Coons to attack her with the phrase "separation of Church and State". This should be obvious. A 3rd grader would have anticipated this.

    (2) The way she challenged Coons about him not knowing all the protections of the first Amendment means that she was "banking" on him not knowing… and this was obviously part of her pre-planned response to his "separation of church and state" assertion. Therefore, her debate prep would have included re-reading the 1st amendment about 100 times during the debate prep. Think about it… if you were planning to embarrass (even ambush!) your opponent about his lack of knowledge of a section of law about the size of a short paragraph, wouldn't you pretty much memorize that paragraph just before the debate–so as to prevent yourself from putting your own foot in your mouth? This is also a "given". So when Coons changed the word "Congress" to "government"… it would have sounded totally about of place to someone who would have just read the actual passage 100 times in the previous days! And her reaction then makes perfect sense. One commenter stated that she couldn't have been so fast to react. But if you've just read something 100 times, it is easy to QUICKLY recognize a glaring misquote and challenge your opponent on that.

    To think that, instead, she was questioning the existence of "make no establishment of religion"… especially under THESE circumstances… is ridiculous. Anyone who believes that is dumb.

    (3) Finally, within the Conservative and Libertarian limited-Gov't circles, talk about how the Bill of Rights referring to "Congress shall" is a common topic. We discuss all the time how the Bill of Rights originally placed ONLY limitations on the Federal Gov't –AND–during those SAME discussions about this which Conservatives and Libertarians have, someone always brings up that the phrase "separation of Church and State" doesn't appear in the Constitution or in any written law. (it was merely in an obscure letter Jefferson wrote)

    Therefore, it is TOTALLY believable and consistent that O'Donnell would have been very aware during the debate that the Bill of Rights used the term "Congress shall" and NOT "Government shall"… and she correctly thought that she was scoring points when she called Coons out on that… and Coons' language switcheroo really does fundamentally change the meaning of the 1st Amendment, which is why Christine called him on that.

    The fact that liberals don't understand this only shows how stupidly indoctrinated they are by their liberal professors–not knowing that actual text and original intent–but being well familiar with liberal orthodoxy cliches.

    Any liberal who reads this and STILL thinks that O'Donnell wasn't calling Coons on the "government" part of that quote is hopelessly biased and can't handle the truth.

    I'm trying to find where she or the moderators specifically challenged him to name the 5 freedoms in the first amendment. If he couldn't then shame on him, but I can't seem to find a debate transcript or video that shows that. I see the exchange with the separation of church and state discussion, but haven't found anything with a specific question on the "five freedoms", as O'Donnell and others say that she followed up with.

    @Maggie
    There IS a very good reason for not teaching what you (and other creationists call) "Creation Science" along side of evolution. It's simply not science; adding the word doesn't make it so.

    Okay found it. He basically blew her off from the 5 freedoms question. I saw no fumbling and I can't really discern whether he could not answer the question or did not deign to do so. It was weird though. They were just done talking about whether or not faith-based organizations have a role providing services with federal money to those in need. That discussion was kinda relevant to the 1st amendment topic but her question seemed out of context. That might have worked if she asked it earlier but seems like it was an afterthought. If there was a "1st amendment" strategy she was way off the mark on when she really should have asked that question.

    @serfdood

    Please read what I said again… I am a Catholic and I do not believe in Creation Science.

    When I was at school we learned about the Creation story in religious instruction. We read the Bible in context, and we understood that there was a wider meaning to that context.

    The argument that "It is simply not science" is pithy to say the least.

    If you have ever come across people who do in fact advocate Creation Science alone you would discover that they have gone into "the science" to try and prove others wrong!!

    My point is that if you open students up to both sides then they should be given the ability to test the theories of both sides.

    BTW Evolution is also NOT SCIENCE. It is nothing more than a theory. The theory, especially the the Darwinism theory requires rigorous testing. So far Darwinism has been failing because there are gaps. On the other hand, Creationism fails because of the belief in the young earth, and I disagree with that belief.

    It is something like this belief in the young earth which is why I believe that both should be taught, compared and contrasted. In that way students get the wider view.

    Liberals are stifling real scholarship by the stance that they take. At the same time, those fundamentalist Creationists are also stifling scholarship by refusing to allow their children to explore what we all know about the evolution of the earth.

    FYI as I Catholic, (and Christine O'Donnell is a Catholic too), I believe that Genesis (which is where you find the belief in Creation Science) can be reconciled to evolution of the earth, but not to Darwinism. The Creationists believe that each day is a literal 24 hour period. However, this is not how Genesis should be interpreted. A day, or where it says that day turned into night and then it was morning, represents in my view the passing of perhaps millions of years which is the passing of each era of the earth.

    If such comparisons were taught then people would be more comfortable with Genesis which is indeed story-telling, or giving a simple explanation for a complex situation to describe what has taken place over a long period of time.

    serfdood,

    You are entitled to your opinion, but this is probably not the forum to argue creation vs. evolution, or whether creationism can be called a science.

    What is important, and actually relevant to this blog post, is that O'Donnell believes that this is a matter that should be left up to the States and the people, and simply isn't the job of the federal gov't.

    In contrast, if O'Donnell were running for school superintendent, or governor.. you'd then have a point worth discussing.

    But since she is running for a position in the Federal gov't –AND– her position that the Federal gov't should stay out of such matters.. this trumps whatever her personal opinion may be regarding creationism vs. evolution.

    Personally, I find it refreshing that a candidate for higher office in the Federal Gov't actually understands the 9th and 10th amendments… and doesn't have the goal of endlessly expanding the Fed's power… delving into all aspects of our lives… and I also like the fact that she actually values the Constitution and desires to follow it!

    Sadly, such candidates like O'Donnell seem to be nearing extinction.


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