Friday, October 22, 2010

The Constitution and the Separation of Church and State

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.
Christine O'Donnell has been widely mocked for expressing doubt as to the presence in the Constitution of separation of church and state. As you can see from the First Amendment, quoted in full above, she is correct and her critics are mistaken. Not only do the words not appear in the Constitution, the idea does not appear either. Establishment of religion was a well understood concept; it meant an official state church, supported by government money. England had had such an arrangement since at least the sixteenth century and still does. So, currently, do Denmark, Norway, and Iceland (all Lutheran), as well as lots of Muslim countries. When the First Amendment was passed, Connecticut and Massachusetts had established churches.

Teaching creationism in the public schools—not a burning issue in those pre-Darwin and pre-public school days—is not an establishment of religion. Nor is having the government contract with religious groups to do things it wants done. The modern concept of the separation of church and state, based on a phrase used by Jefferson, is a creation of the courts that goes well beyond the language of the First Amendment. For details, see this post by Jim Lindgren, who teaches law at Northwestern.

That so many observers took it for granted that O'Donnell was demonstrating her ignorance rather than theirs is testimony to the power of that particular civic myth.

19 Comments:

At 1:40 AM, October 22, 2010, Anonymous David said...

Exactly. And while we're at it, let's dismiss the myth that any of the authors of the constitution believed in "separation of powers," "checks and balances" or "limited government". None of those exact phrases appear in the constitution or its amendments, so it clearly is not what the founding fathers believed in.

 
At 2:43 AM, October 22, 2010, Anonymous Miko said...

I could argue against your pseudo-history, but I won't bother, since as Lysander Spooner noted,

"The intentions of the framers of the constitution...have nothing to do with fixing the legal meaning of the constitution. That convention were not delegated to adopt or establish a constitution; but only to consult, devise and recommend. The instrument, when it came from their hands, was a mere proposal, having no legal force or authority. It finally derived all its validity and obligation, as a frame of government, from its adoption by the people at large."

If the constitution is to mean anything, it has to mean what it says, even if this is not what the authors of the document intended. If it says it prohibits any law respecting an establishment of religion, the fact that the framers of the document (allegedly) had a poor understanding of the full extent of what that implied is irrelevant.

 
At 6:01 AM, October 22, 2010, Blogger Alan deLespinasse said...

Here's a more complete, and mostly concurring, blog post on the subject from an expert. (I don't actually know if it's 100% correct.)

I think O'Donnell was probably demonstrating her ignorance of politics. Though I still need to dig up footage or a transcript of the actual debate.

 
At 6:47 AM, October 22, 2010, Blogger Michael F. Martin said...

Actually, I think she was ignorant since she failed to defend herself by pointing out what you just did. And because it's such a thin defense of the argument.

On the history here, it's worth reading the first chapter of the first volume of David Currie's history of Congress. The Founders didn't have the same sense of what separation would mean that we do now. But remember why so many of their ancestors left Europe in wooden ships.

 
At 6:56 AM, October 22, 2010, Anonymous Dave Orr said...

It seems to me that if half a century of high profile supreme court law has said that separation of church and state is located in the first amendment, then it is certainly reasonable and not mistaken to say that the first amendment requires the separation of church and state, even if some people think it doesn't actually mean that. So her critics are not mistaken.

Now, one could still argue otherwise, as you and people you link to are, without being ignorant. But this wasn't the case with O'Donnell: she had no idea that there was any relation between the first amendment and the separation of church and state. Given that one of her issues is government repression of her religion, this seems like woeful ignorance.

You seem to be taking the position that if there is any remotely plausible interpretation of her various strange positions and remarks that she must be a reasonable person believing those interpretations. But from a bayesian perspective, the much more probable explanation for someone making a bunch of seeming ignorant or bizarre statements is that they in fact are ignorant, or nutty, or both. It's certainly still possible that she's a perfectly reasonable person who has a lot of unusual positions and knowledge gaps, but I would want to see some pretty strong evidence of that before abandoning the more natural explanation, which the media has followed.

For instance, if she had said, "Actually the first amendment doesn't quite say that, it saws no establishment, and liberals in the supreme court, legislating from the bench, imposed separation on us," then I might have a different view. But when someone says something that anyone with the least education in the area has heard repeatedly, and your response is, "Buh... what?", it's hard to see how that's anything but rank ignorance.

 
At 8:21 AM, October 22, 2010, OpenID Josh said...

And yet Thomas Jefferson, someone who was certain in a position to know the exact intent of what is written in our Bill of Rights, specifically said that the first amendment did indeed create a separation between church and state. His exact words were:
"Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & State."

http://www.usconstitution.net/jeffwall.html

 
At 8:41 AM, October 22, 2010, Blogger Daveon said...

I don't think she defended herself like that because I genuinely don't think she actually had thought of that.

She knew that the words "separation of church and state" don't appear, but it was obvious from the video that she didn't really understand the correct point that Coons was making.

She's a sub-par candidate who's going to probably lose what would have been a safe gain for the GOP.

 
At 9:48 AM, October 22, 2010, Blogger jimbino said...

David @1:40pm is right, but he forgot to mention that none of the founding fathers--certainly not Madison--believed the Supreme Court to be the final arbiter of what is and is not Constitutional.

The First Amendment is ungrammatical by today's standards and difficult to parse correctly. It has commas in the wrong places and lacks parallel structure. It should read something like:

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 interfering with the right of the people peaceably to assemble and to petition the Government for a redress of grievances.

 
At 10:31 AM, October 22, 2010, Anonymous Anonymous said...

This is, bluntly, nonsense on stilts.

David, if you've actually viewed the video of the exchange, there's no way to honestly make this defense. It is clear and obvious that she wasn't making a claim about the specific wording of the Constitution.

I don't know if you're doing this out of partisanship, some quixotic desire to promote the ability of clueless slackers to join the Senate, or something more obscure, but it it making me reevaluate what I thought of your judgement.

 
At 11:13 AM, October 22, 2010, Anonymous William H. Stoddard said...

jimbino: I don't see any reason to describe the actual wording as ungrammatical. It's a little old-fashioned in language, but it has only two points I would pause at if I had to deal with it professionally as a copy editor; and on both, I would accept it as falling within author's choice, unless the publisher specifically required otherwise.

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.

Your suggested rephrasing takes out the commas. But both open punctuation, which would remove them as unnecessary, and close punctuation, which would accept them on the ground that a speaker would likely pause there, are recognized as legitimate punctuation styles. Whether to say "A and B" or "A, and B" is a matter on which styles differ.

Your suggested rephrasing inserts "interfering with" into the third clause. But the third clause can be read perfectly well as an elliptical construction that omits the verb from the second clause, as understood, rather than repeating it: or [abridging] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. I think "abridging" makes perfect sense in that third clause, so I don't see any problem with the wording.

I grant that it's odd to put all those into one amendment, instead of having three separate amendments. But that's not really a grammatical issue; it's more an organizational one.

 
At 12:58 PM, October 22, 2010, OpenID hudebnik said...

Establishment of religion was a well understood concept; it meant an official state church, supported by government money....

Teaching creationism in the public schools—not a burning issue in those pre-Darwin and pre-public school days—is not an establishment of religion.


Not in name, but teaching the beliefs of one particular religion as fact in a taxpayer-funded school certainly carries some of the stench of establishment. And if it were allowed, it would be an invitation to use more taxpayer money to further the ends and beliefs of one particular religion, resulting in a de facto establishment of religion.

Nor is having the government contract with religious groups to do things it wants done.

Here things are murkier: if two organizations, one religious and one not, bid the same price to perform the same service equally well, there's no obvious reason they shouldn't get equal consideration. The question is whether the organization will actually perform the service as directed by the customer (the government), or whether its own principles (religious or otherwise) trump the customer's wishes.

 
At 7:04 PM, October 22, 2010, Anonymous Anonymous said...

How about a blog post on this?

 
At 9:40 PM, October 22, 2010, Anonymous Andy Hallman said...

David, I don't think your theory holds up if you actually watch the video.

http://www.youtube.com/watch?v=miwSljJAzqg

At the 7 minute mark:

O'Donnell: You're telling me the separation of church and state is found in the First Amendment?

Coons: The government shall make no establishment of religion.

O'Donnell: That's in the First Amendment. (questionable intonation at the end. Hard to tell if she was questioning Coons's paraphrasing [which she had done earlier] or if she was now agreeing with him)

David, would you mind giving us an example of something that does violate the Establishment clause if teaching creationism doesn't count?

 
At 9:44 PM, October 22, 2010, Anonymous Andy Hallman said...

Ok, ignore my last question.

 
At 1:25 AM, October 23, 2010, Blogger David Friedman said...

Andy asks me to give "an example of something that does violate the Establishment clause if teaching creationism doesn't count?"

That depends on whether you mean "violates the plain meaning of the clause, as understood when it was written" or "violates the Court's current interpretation of the implications of the clause."

For the second, I expect teaching creationism in the public schools would count. For the first, having the federal government set up an official state church, funded at least partly by government money--the current situation in the U.K., Norway, etc.

An established church at the state level, surely closer to a violation than having state schools teach creationism, wouldn't violate the First Amendment itself, since it only applied to the federal government. It would violate the first amendment plus the reconstruction era amendments plus the doctrine of incorporation, since that doctrine holds that parts of the bill of rights, including the First Amendment, now restrict the states.

How much of the Bill of Rights that applies to is still an open question.

 
At 2:08 PM, October 23, 2010, Anonymous Hammerhead said...

I confess I'm ignorant of exactly the content of a course in public school that calls itself 'creationism'? Are they reading passages straight from Genesis as literal truth? Is it a case of promoting a specific religion, or a case of presenting dumbed-down bad science (ignoring Darwin, for example) that is not supported well by evidence? If it's the latter, it is hardly the only discipline suffering from this defect. I'd argue that teaching Marxist ideas of 'laws of history' is peddling a form of religious pseudo-science. Some of the environmental dogma being taught in schools is also on par with this stuff.

 
At 5:57 PM, October 23, 2010, Blogger Karl said...

I'm curious.

Suppose a school were to incorporate into its science curriculum the idea that the sun is closer to the earth than the moon is. This is apparently doctrine taught by the ISKCON (International Society of Krishna Consciousness = "Hare Krishna").
Suppose further that several members of the Board are members of ISKCON.
It may be plausibly argued that this is an attempt to replace established science with religious doctrine.

Would you agree with this interpretation?
Would you consider this a violation of the First Amendment?

 
At 7:02 PM, October 23, 2010, Blogger Neil Parille said...

Josh,

As I recall reading, Jefferson was in France when the Bill of Rights was drafted, so I'm not sure he was in a great position to know the original intent of the first amendment.

-Neil Parille

 
At 8:52 PM, October 23, 2010, Blogger David Friedman said...

Karl asks about a school teaching that the sun is closer to the earth than the moon. I don't think that would violate the First Amendment as understood at the time, or its literal meaning now. It would probably violate separation of church and state as interpreted by the courts.

 

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