Gotcha moment du jour: O’Donnell, separation of church and state, and the First Amendment
If you go to memeorandum right now, you’ll see that their lead story is a bunch of articles on Christine O’Donnell’s alleged ignorant/stupid/shocking faux pas in her debate with Coons, where she allegedly had no idea that the Constitution establishes the separation of church and state in the First Amendment. Here’s the quote:
The comment came during a debate on WDEL radio with Democratic opponent Chris Coons, who argued that local schools should teach science rather than religion, at which point O’Donnell jumped in. “Where in the Constitution is the separation of church and state?” she asked…
The audience at Widener Law School was taken aback, with shouts of “whoa” and laughter coming from the crowd.
Coons then pointed to the First Amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
“You’re telling me the First Amendment does?” O’Donnell interrupted to ask.
Following the next question, Coons revisited the remark ”” likely thinking he had caught O’Donnell in a flub ”” saying, “I think you’ve just heard from my opponent in her asking ”˜where is the separation of church and state’ show that she has a fundamental misunderstanding.”
“That’s in the First Amendment?” O’Donnell again asked.
“Yes,” Coons responded.
I have read several stories in the MSM that report on the exchange, and so far I have yet to see a discussion of the very real issue that O’Donnell appears to be referencing here. Here’s a typical piece, in the WaPo, which quotes constitutional law professor Erin Daly, as saying that:
…while there are questions about what counts as government promotion of religion, there is little debate over whether the First Amendment prohibits the federal government from making laws establishing religion.
“She seemed genuinely surprised that the principle of separation of church and state derives from the First Amendment, and I think to many of us in the law school that was a surprise,” Daly said. “It’s one thing to not know the 17th Amendment or some of the others, but most Americans do know the basics of the First Amendment.”
I’m genuinely surprised to hear that Daly is surprised by Donnelly, because by his use of the phrase “derived” rather than “stated,” he shows his own awareness that the phrase “separation of church and state” does not appear in the First Amendment. I assume he is also aware that there is a school of conservative thought (one with which he probably disagrees, but still, it is a bona fide knowledge-based position) that points out that the phrase does not appear in the First Amendment, which is interpreted more strictly by them as doing two things only:
(1) banning any interference with citizens’ freedom to practice the religion of their choice, as long as the practice does not violate the law of the land (human sacrifice, for example, would be a major problem)
(2) banning the establishment of a state religion (a practice that was common in Europe at the time of the formation of this country)
In other words, it protects the religious individual from state restrictions, and it protects all individuals from the state elevating one particular religion to official status. Let’s look at the words of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The words “separation of church and state” do not appear there, which Christine O’Donnell’s campaign manager Matt Moran later said was what O’Donnell meant. I don’t have a transcript of the entire debate, so I don’t know if she attempted to clarify this, but if she didn’t, she should have.
However, I think it’s pretty clear from the part of the exchange I have seen that that was the basis of her statement, and that she had in mind the argument by some conservatives that the intent of the First Amendment was never to prohibit the insertion of some religious elements into public schools and public life, and that the courts have gone too far in that regard.
If you actually take a look at those words in the First Amendment, it seems fairly clear that the narrower, conservative interpretation is a valid one. The entire intent of the amendment appears to be to stop the state from interfering with various freedoms of expression, of which religion is but one, rather than to ban religion from public life and public utterance (the founders themselves made constant reference to it, for example). And it is a historical fact that it wasn’t until the twentieth century that the courts extended the prohibition on promotion of a particular religion to the states; before that it was allowed.
Now let’s look at the phrase “separation of church and state:”
The modern concept is often credited to the writings of English philosopher John Locke, but the phrase “separation of church and state” is generally traced to an 1802 letter by Thomas Jefferson to the Danbury Baptists…
So it does not appear in the Constitution; only some time afterward. And what Jefferson meant by it does not appear to have been what the phrase has come to mean now in all its manifestations. His letter can be found here, and his words appear to reiterate the aforementioned two principles established by the First Amendment, calling it a “wall of separation between Church & State.”
I have noticed a trend in the MSM that goes like this: the press decides that certain candidates on the right are idiots (Palin and O’Connell come to mind, and Bush before them). There is then a sort of lying-in-wait for the absurd utterance to reveal the utterly moronic nature of that person. However, since the press and pundits are not necessarily brilliant critical thinkers themselves, the utterance they fasten in is often (not always, but often) actually more intelligent than they realize. They may not agree with it, but it is seldom based on nothing, and they reveal their own ignorance in their laughing derision of it.
But the goal is not to understand what the genuine arguments and disagreements are. The goal is to discredit. And in this, they have an ally in the current state of American education on our own traditions and their origins. It is certainly a valid point of view to believe that the development of constitutional law regarding the separation of church and state, and its current state of prohibition on any public or publicly-sponsored official religious expression, is an organic and valid expression of the intent of the Constitution. But to ignore the argument to the contrary, ridicule it, misrepresent it, and/or believe it is laughable, is ignorant. Unfortunately, they get away with it, and in the process we are all harmed.
[NOTE: There’s much more information on the Founders and separation of church and state here and elsewhere online. It’s a huge and complex subject, not easily simplified, except in gotcha politics. For one small example, there’s this:
In setting up the University of Virginia, Jefferson encouraged all the separate sects to have preachers of their own, though there was a constitutional ban on the State supporting a Professorship of Divinity, arising from his own Virginia Statute for Religious Freedom.[28] Some have argued that this arrangement was “fully compatible with Jefferson’s views on the separation of church and state;” however, others point to Jefferson’s support for a scheme in which students at the University would attend religious worship each morning as evidence that his views were not consistent with strict separation.]
[ADDENDUM: Ace agrees. And Michelle Malkin makes a good point about Coons.]
It’s “freedom OF” not “freedom FROM” religion. Simple as that.
stumbley: actually, it’s not as simple as that. As I wrote in my piece, it has two parts. One is indeed “freedom of,” with restrictions on that freedom in order to ban illegal acts. But there is a “freedom from” part, and it means at minimum “freedom from the establishment of an official state religion.” How much further it goes is a matter of debate.
The Founders did not want a State religion,and thankfully so, but let us not forget- or allow the left to continue to hide, that both of the two major founding documents, Declaration of Independence and US Constitution referenced Deity in the positive. Last Paragraph of the US Constitution:
“Done in convention by the unanimous consent of the states present the seventeenth day of September in the year of our Lord one thousand seven hundred and eighty seven and of the independence of the United States of America the twelfth.”
And dont let them say unchallenged “thats just how they talked back then’ and in the next sentence say “There can be no reference to God in Public documents because the Founders wanted it that way”
When I said “State” above I was speaking of Nation-State , what we call the Federal level.
Neo, according to non otherthan the Library of Congress, Jefferson attended Church services that were being held inside of the House of Representatives….
“Within a year of his inauguration, Jefferson began attending church services in the House of Representatives. Madison followed Jefferson’s example, although unlike Jefferson, who rode on horseback to church in the Capitol, Madison came in a coach and four. Worship services in the House–a practice that continued until after the Civil War–were acceptable to Jefferson because they were nondiscriminatory and voluntary. Preachers of every Protestant denomination appeared. (Catholic priests began officiating in 1826.) As early as January 1806 a female evangelist, Dorothy Ripley, delivered a camp meeting-style exhortation in the House to Jefferson, Vice President Aaron Burr, and a “crowded audience.” Throughout his administration Jefferson permitted church services in executive branch buildings. The Gospel was also preached in the Supreme Court chambers.”
http://www.loc.gov/exhibits/religion/rel06-2.html
If you look at how the founders conducted themselves in govt, you can’t possibly interpret the first amendment as a church/state wall. That would be like the founders proclaiming a prefered meat for mealtime not be establised and the modern liberal interpreting that as conclusive proof they intended all of us to be vegetarians.
Also, i see “prohibiting the free exercise thereof” as a way of recognising that the culture coming out of the folk can and does have every right to establish a majority religion. It is in fact mathematically impossible that one religion not be a majority. We were and are a Christian nation and got there without government coersion or input. As it should be.
“an establishment”
Presumes there are or could be establishments of religion. Which, of course, there are.
Didn’t refer to the states, some of which had semi-preferred denominations.
Other than forbidding congress from devising a national church, or making laws referring to existing churches…that’s all there is.
Everything else is an expansion in practice, until a school principal might send a kid home for handing out “Jesus loves you” Christmas candies.
Coons is an idiot.
The First Amendment isn’t the 5th or 10th amendment.
You’d think that Coons would know what was in the 1st amendment at least.
Blasted idiot.
http://www.riehlworldview.com/carnivorous_conservative/2010/10/chris-coons-1st-amendment-views-betray-his-marxist-beliefs.html
The expression “separation of church and state” needs more definition than is normally provided. Jefferson defined “state” in the expression to mean the federal state only and thereby the individual states were left free to establish and promote religion.
Jefferson stated in his second Inaugural Address, delivered in March 1805:
In matters of religion, I have considered that its free exercise is placed by the constitution independent of the powers of the general government. I have therefore undertaken, on no occasion, to prescribe the religious exercises suited to it; but have left them, as the constitution found them, under the direction and discipline of State or Church authorities acknowledged by the several religious societies.
The 14th amendment has been used to demand state constitutions incorporate the bill of rights. Hugo Black, in the landmark case of Everson v. Board of Education (1947), did this with regards to the “make no law respecting an establishment of religion.” Thereafter, government, state or federal, shall make no law respecting an establishment of religion. But in so doing, the justices of that decision also stated that the wall must be kept high and impregnable.
Thus the paradox of how keeping one part of the constitution inviolate led to denying another part. Because it is quite clear today that government is prohibiting the free exercise of religion.
Meanwhile, the Maryland governor calls “illegal immigrants” “NEW AMERICANS” 🙂
What does Gwen Ifill and Megan McCain have to say about that wacky comment from the Maryland governor?
I’ll keep looking to them for guidance…
There is a chapel on the grounds of the University of Virginia.
Apparently, it did not bother Jefferson that people might exercise their religious freedom on state owned property.
Limbaugh played extensive sound bites from the O’Donnell/Coons debate. It was pretty clear that O’Donnell was chiding Coons for his misreading of the First Amendment.
Current usage of the First Amendment does not change the wording of the Constitution. And remember all it takes is a decision by 5 people in black robes to change the interpretation.
The other point that the Media beat O’Donnell around about was teaching Creationism. That, of course, is a loaded word much favored by Liberals. But, what O’Donnell actually discussed was teaching Intelligent Design as an alternate theory to Evolution. As we know, intelligent design accommodates non-Christians and a host of others. Many Scientists who think there had to be more than a big bang to explain our universe, accept the theory of intelligent design. Jefferson has been sometimes been described as a Deist; so he would subscribe to intelligent design. Never heard him described as dumb. O’Donnell is not dumb, no matter how hard the MSM work to paint her as such.
Neo, I should have specified that I meant that the Constitution did not prohibit the exercise of religion in government areas, as in “freedom from religion everywhere except churches.” As Curtis has noted above, the government is now actually prohibiting the “free exercise of religion” by preventing folks from praying in school, for instance. Somehow forgetting that they’ve got a chapel in the Pentagon, foot washing areas (for Muslims) in the Minneapolis airport, etc. etc. etc.
Or that the House of Representatives opens with a prayer every day.
You’re right, Neo. And the video proves it. The facial expressions tell much of the story:
http://www.youtube.com/watch?v=t4rPBhkIGRI&feature=player_embedded
http://www.youtube.com/watch?v=miwSljJAzqg&feature=player_embedded#!
via michelle malkin
Chris Coons can’t name the five freedoms in the First Amendment
http://michellemalkin.com/2010/10/19/chris-coons-cant-name-the-five-freedoms-in-the-first-amendment/
Neo,
Good point on your second-hand surprise.
I think the Professor’s confused confusion may stem from legal academia’s tendency to view Establishment Clause case law as beginning with the 1940’s case in which KKK alum Hugo Black was able to make “separation” a permanent part of 1st Amendment vocabulary. At least, that was the way it was taught to me.
The courts would not have to go through their periodic contortions if the First Amendment employed legalistic “separation” language, instead of the murkier “establishment” nomenclature. “Separation” would beg the courts to engage in heavy-handed line-drawing. But who knows what “establish” means? Just look at the good ‘ol 9th Circuit’s problems with the recent “Newdow” Pledge of Allegiance case.
I’m also pretty sure that Jefferson’s “separation” pronouncements were irrelevant to most pre-WWII Establishment cases. As I recall, until that time, the Clause was viewed as a restriction only on the federal government Most Establishment cases, however, involve state and local requirements and prohibitions. Until that time, Jefferson’s musings may have had some bearing on whether Richmond schools could teach the Ten Commandments (assuming he had something to say about Virginia’s version of the 1st Amendment), but not on what Omaha schools could do.
Does religion solve or create problems?
If you are constrained to either of those two choices, your answer is a good indicator of whether you are a constitutionalist like Roberts or a judicial oligarch like Kagan. The former fear life without religion more than with it. The latter merely fear religion.
Therefore, while the former deny to government the power to establish or deny religion and seek to leave it to the people, the latter merely seek to deny religion completely. It is a bad thing and must be abolished. The awful irony is that a religion has been established: the secular religion of humanism which funds progressive jurisprudence.
More correctly, it’s not just humanism which is okay with progressive jurisprudence. Islam seems to be–as well as humanistic or New Age types of religion. What it comes down to, seemingly, is this dilemna that religious liberty seems to only work upon the Judeo-Christian foundation. Get too many non-believers or Muslims in there and there will no longer be a Constitution of the United States. Some might say there already isn’t.
The problem with the train of thought O’Donnell is representing on the 1st Amendment is that its specifically the train of thought aggressively promoted by the evangelical right for the last couple decades, specifically Falwell and Dave Barton. I have little doubt that O’Donnell, given her evangelical background, was not only personally referring to that train of thought but honestly had no idea that it wasn’t strictly relegated to the evangelical echo chamber. She hasn’t had a conversation about the topic with anyone that doesn’t agree with her before, and its frankly astounding that it never crossed her mind that maybe not everyone made the convoluted leaps in logic it takes to subscribe to this particular view.
chester: I’m hardly an evangelical. But it doesn’t require any convoluted leaps of logic to follow an argument that the First Amendment refers to those two principles I described. In fact, the argument is simplicity itself.
Agreeing or disagreeing with it is a different matter. But the argument itself is very easy to understand.
This is why liberals discourage students from reading the text of the constitution and drawing the obvious conclusions.
Abraham Lincoln, in his third “Annual Message to Congress” (December 8, 1863), took note of recent developments in the federal government’s relations with various American Indian tribes:
“The measures provided at your last session for the removal of certain Indian tribes have been carried into effect. Sundry treaties have been negotiated which will, in due time, be submitted for the constitutional action of the Senate. They contain stipulations for extinguishing the possessory rights of the Indians to large and valuable tracts of land. It is hoped that the effect of these treaties will result in the establishment of permanent friendly relations with such of these tribes as have been brought into frequent and bloody collision with our outlying settlements and emigrants.”
The first Republican president continued (emphasis added):
“Sound policy and our imperative duty to these wards of the government demand our anxious and constant attention to their material well-being, to their progress in the arts of civilzation, and, above all, to that moral training which, under the blessing of Divine Providence, will confer upon them the elevated and sanctifying influences, the hopes and consolation of the Christian faith.”
Collected Works VII 47-48.
Reference to a deity is not a reference to Christianity, a reference to a deity, God in general terms, is deism which is not a religion. “No establishment of religion” respects the right to practice any, all, or none … which makes America a Secular Republic in our earliest and most cherished laws of being a Republic. But because we come from a history and monopoly of religion, and over-lapping authorities of religion and government, it’s something we are constantly pushing back against. Thank goodness for America and our Constitution!
nyomythous said “Reference to a deity is not a reference to Christianity, a reference to a deity, God in general terms, is deism which is not a religion. ”
Like I said before, I am thankful we do not have a State religion.
However, your argument above, in favor of some non-descript “deist” God, could at best be applied only to the Declaration of Independence. (And even that is questionable )
The reference in the Constitution itself is “…in the year of our Lord one thousand seven hundred and eighty seven…”.
Thats a pretty specific Deity, unless you argue the Deist calender is based on some non-descript Deity who just happened to be born 18 centuries before the Constitution was signed!
I think you deliberately deny the obvious!
When I first started practicing law in a small town in the Sandhills of Nebraska, the local Knights of Columbus put a Nativity scene on the Courthouse lawn every Christmas and on Good Friday every business, including the Courthouse and city offices closed so folks could attend church services. The small town was 98% of Polish descent, 98% Catholic and the county was about 90% Democrat. This is what the Founders intended – local control of local matters in regard to religion. The so-called “wall” of separation was to shield religion from state interference, not the other way around. O’Donnell was correct – the rabid liberals are wrong.
The video clip shown on TV puts O’Donnell in a bad light. I think it was a gaffe, but no worse than many made by every politician who’s been on a campaign. The MSM are re-playing it ad nauseam, as is their custom when they disapprove of a candidate. When politics is reduced to a game show we are all losers.
Jon,
Would you say that a description of time change the nature of time? Isn’t it an even much greater leap to say that a description of time implies a specific deity — what would be the proof of this? Where are the teachings of this specific deity woven into the Constitution or Declaration of Independence?
You deny the obvious religious monopoly that religion has had on western history. It is a reference to a description of time a political one at that. It was necessary to make concessions to a faith-based thinking world which had begun waning more forcefully since the Enlightenment. The new Republic was forced to make similar concessions on the topic of slavery. Was it right, no. What it necessary to secure a foothold to grow until it was strong enough to push back against religious bullying and the stultification of our founding documents and laws, yes!
Don,
You are so SOOOOO dead wrong.
The separation of church and state is based on Jefferson’s Virginia Statue on Religious Freedom, which was based on a letter written to Jefferson by the Baptist of Danbury, Connecticut who were pleading for protection from another Christian sect. It was to protect us from the Religious bullying of our secular laws which respect the rights of all practice their religion or non-religion.
The small town was 98% of Polish descent, 98% Catholic and the county was about 90% Democrat. This is what the Founders intended – local control of local matters in regard to religion. The so-called “wall” of separation was to shield religion from state interference, not the other way around.
Well how about local Sharia law, where is your definition of a wall of separation now???
When you cut down the law for convenience, where will you turn to when you actually need that law? It won’t be there because you cut it down.
Keeping faith-based thinking out of public policy-making is our first civic priority because the faith-based community requires us to make it so.
The seperation of Church and state does appear in the Constitution:
ARTICLE 124. In order to ensure to citizens freedom of conscience, the church in the U.S.S.R. is separated from the state, and the school from the church. Freedom of religious worship and freedom of antireligious propaganda is recognized for all citizens.
It just happens to be the Soviet Constitution, chapter X Article 124, which appears to be the model most liberals prefer.
Nazi soldiers were sometimes known to reprimand children who were caught being cruel to animals with, “Don’t do that, it’s not nice.”
And your point is….?
nyo.
If you’re referring to trebuchet, you’re being deliberately obtuse. Which is to say, transparently so.
The constitution which mentions the separation of church and state, 1, isn’t ours, and, 2, was the supposed founding document of a vicious tyranny.
IOW, no connection between “separation” and our constitution; a point O’Donnell was justified in making and the audience, being libs and lawyers, predictably to miss.
FWIW Christine O’Donnell is Roman Catholic not Evangelical, Western history is a subset of Christian history and the Abolitionists were right-winged Christians who bullied the government into ending legal slavery based on the principal of the sanctity of life (a Christian belief).
NYO,
1) First you imply there is no reference to the Christian God in the Founding Documents: 11:10 PM “Reference to a deity is not a reference to Christianity, a reference to a deity, God in general terms, is deism which is not a religion”
2) Then you reiterate that that point : “Isn’t it an even much greater leap to say that a description of time implies a specific deity – what would be the proof of this? ”
3) Then you admit it was there by saying “It is a reference to a description of time a political one at that. It was necessary to make concessions to a faith-based thinking world which had begun waning more forcefully since the Enlightenment. ”
So is the reference to “our Lord” and a calender system that was built with its start date aprroximately at his birth (within 3-5 years) not a reference to a specific Deity or was it a “concession”? The reference cannot both NOT exist and exist as a “concession” at the same time!
There are a lot of things I don’t know – even probably a lot of things I think I know that aren’t true. I do know that I don’t care whether she knew the legal derivation of the separation of church and state. I’m also pretty sure her interpretation of what it means and how it should be applied in governing differ a great deal from Obama’s and his crowd. What’s important to me is that when she’s a Senator she will vote to cut taxes, cut spending even more, and vote in ways generally that will please me and piss Obama and his ilk off.
…….Richard Aubrey ….obviously I understand that Trebuchet is not referring to the U.S. Constitution….
…are YOU being eliberately obtuse…??
NJcon … Abolitionists were right-winged Christians who bullied the government into ending legal slavery based on the principal of the sanctity of life (a Christian belief).
….. and the moral warrant for slavery comes from Religion too. So religion creates and solves the problem. Thank you for the depth of your observation.
3) Then you admit it was there by saying “It is a reference to a description of time a political one at that. It was necessary to make concessions to a faith-based thinking world which had begun waning more forcefully since the Enlightenment. ”
But on 3 is where you make you BIG mistake. I don’t admit it, I observe it from historical writings [and present day observations], faith-based thinking is observable. Are you really saying these terms are synonymous?
If you sneeze I may say, “Bless you.”
… does this make me a theist? I don’t have the power to bless you. The traditional meaning of the expression is a polite, yet nonetheless, appeal to the divine. I don’t claim to have that connection nor would I fully trust anyone who said they did … though watered down it is still a polite thing to say, “Bless you.”
I humbly appeal to reason on this point to continue demeans the intelligence of the other readers.
And after all this, the other side (referring to Democrats and Republicans) can be lower.
And the Democrats have been lower.
That’s why I will more than likely vote Conservative/Republican.
nyo
Then why respond at all?
It’s as if you were trying to dismiss the fact that the concept of separation, and the words, do not exist in the US constitution.
The Nazi soldiers said something or other has what, exactly, relevance to trebuchet’s point?
His point is that the concept of separation does exist, along with the words, elsewhere.
You pretend he’s saying something nice about the Sov constitution….
Oh, hell. You know the steps in the dance as well as I do. Why am I explaining how to fail at a snarky dismissal so abysmally that everybody but you sees it?
The O’Donnell incident is a great opportunity for a “refudiation” moment. (I love it!) It’s a great opportunity to examine the original texts and history of the issue. Not many minds will be changed but something important may occur: The truth.
O’Donnell is right by asserting that the separation of church and state is not explicitly expressed in our constitution; however, the doctrine has become constitutional law as much as Dred Scott was constitutional law at one time. It is up to us to articulate a better and more balanced law, teach it, and peacefully strive to make that version the new constitutional law.
Richard Aubrey
…The Nazi soldiers said something or other has what, exactly, relevance to trebuchet’s point?
…that even in heart of evil there are inconsistent slivers of goodness. Ex. the USSR separations of church and state — and the example of the Nazi soldier scolding a child for the child being cruel to an animal.
Repetition of the obvious is tiring.
doctrine has become constitutional law as much as Dred Scott was constitutional law at one time. It is up to us to articulate a better and more balanced law, teach it, and peacefully strive to make that version the new constitutional law.
“Better”? For whom, for Polish Catholics like Dan Janousek describes? Thank you, I already ran from them once; their Anti-Semitic Western-Ukranian brethren were the reason I immigrated as a refugee to this country.
Nyomythus is right again. That would be a dark day indeed if de-facto separation of religious institutions (not just Christian churches0 and state was abandoned. I’ll do all I can to NOT let it happen.
Tatyana, I thank ye kindly!
I’ll just bet that the last time Nyo waxed their floor they rubbed a hole in it.
I did not, lol
O’Donnell was right; Coons was wrong:
http://www.humanevents.com/article.php?id=39596#
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