10.20.2010

In Sort-Of Defense of Christine O'Donnell (A Special One-Time-Only Event)

I’m no fan of Christine O’Donnell (the Tea Party sweetheart, anti-masturbation crusader,Republican nominee for the U.S. Senate from Delaware, not to mention the recipient of some damn fine auto-tuning--more on that later). But I come to her defense because I think she is being unfairly lambasted for not knowing anything about the First Amendment. During a debate with her opponent she made some comments that would appear on their face as if she did not know that the separation of church and state was rooted in the Establishment Clause of the First Amendment. This is what was said (you can watch video here, starting at the 2:37 mark):

"Where in the Constitution is separation of church and state?" O'Donnell asked. Upon hearing her words, the audience in the room burst into laughter.

"I also think you just heard, in the answers from my opponent, and in her attempt at saying 'where is the separation of church and state in the constitution' reveals her fundamental misunderstanding of what our Constitution is, how it is amended and how it evolved. The First Amendment establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades --"

O' Donnell then interrupted. "The First Amendment does?" she asked, skeptically.

Coons continued his explanation, and O'Donnell interrupted again. "So you're telling me that the separation of church and state is found in the First Amendment?"

Coons went on to cite cases the Supreme Court had decided that backed up the position of a wall between church and state.

"Let me just clarify," O'Donnell pressed. "You're telling me that the separation of church and state is found in the First Amendment?"

"The government shall make no establishment of religion," Coons said, summarizing the gist of the specific words in the First Amendment's establishment clause.

"That's in the First Amendment?" O'Donnell asked again, eliciting further laughter from the room.

I think it is pretty clear that what O’Donnell was getting at was that the words “separation of church and state” themselves do not literally appear in the First Amendment.  But she didn't do a very good job of articulating that point.  Instead, her comments, coupled with her stated lack of knowledge about the 14th Amendment (which provides due process and establishes that everyone born in the United States is a citizen; go to the 2:13 mark here) make her sound nothing like the semi-constitutional scholar that she purports to be (she claims to have a "graduate fellowship from the Claremont Institute in Constitutional Government." Whatever that means.)

On the narrow topic of the separation of church and state, Ms. O'Donnell is correct:  those words do not appear in the Constitution. The First Amendment provides, in relevant part:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

But that does not mean that the concept of the separation of church and state does not live in the First Amendment. It certainly does; that sentence limits the government's ability to become excessively involved in religious matters.

While the Constitution may not specifically mention the term "separation of church and state," the United States Supreme Court has repeatedly relied on historical examples of religious persecution and intolerance toward minority religions to support the separation of church and state perspective. In fact, in the 1947 case Everson vs. Board of Education of Ewing Township, the Court specifically referred to a "wall of separation between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.” The metaphor itself was first used by Thomas Jefferson over 200 years ago.

O’Donnell does not capitulate to the fact that the Establishment Clause = separation of church and state. And that her opponent did not clarify that the exact phrasing “separation of church and state” was not in the Constitution will, I’m sure, be used against him. In the meantime, Christine O’Donnell may not be a constitutional scholar (duh), but she isn’t the joke that everyone is making her out to be, at least with respect to this issue. But this matter raises a larger issue: saying you are an expert or an authority on something does not make it so. We have to look beyond the literal words and ask what they mean. If Christine O'Donnell says she is a constitutional expert, she must be taken to task on that.  Then if she doesn't know what the 14th Amendment does, that should be broadcast loud and clear and she must own up to it. Anything less is dishonest.

Other Tea Party candidates like Joe Miller make a lot of noise about a literal interpretation of the Constitution, making the separation of church and state argument, railing against the right to privacy (code for saying the Constitution does not protect reproductive choice), claiming that almost any government action not specifically laid out in the Constitution is unconstitutional. But critics like Miller pick and choose their spots. The Constitution does not mention the Internet, but I doubt Mr. Miller would claim that the right to free speech does not exist in this medium. Or would he?

To some, the Constitution may appear to be just a bunch of words on a piece of paper that can be disregarded as the political winds shift. Or re-interpreted to pursue an agenda. But the Constitution is really a pact--a social contract between the government and the governed. Interpretation of its terms and amendments to its provisions are not undertaken lightly. So when people disregard years of judicial interpretation and talk in sound bites about how the phrase "separation of church and state" is not in the First Amendment and therefore it should be okay to teach biblical creationism alongside evolutionary science in public schools, it offends me.

The value of the Constitution is derived from the meaning and respect we give to the very specific words chosen to create it. And we now have 200+ years of judicial interpretation to guide us and to tell us what those words mean. What the Tea Party is advocating is a crabbed interpretation and a disregard for constitutional history. But they can get away with this because they cloak themselves in words and images that evoke the American Revolution and a return to fundamental ideals. Beyond that, there is little substance to their message. Unlike this awesome Autotuned version of one of Christine O'Donnell's campaign ads: