I read this article by Ken Paulson, the President of the First Amendment Center and had to respond to almost everything he wrote.
Church, State and the First Amendment: What O’Donnell needs to know
Sometimes political debates generate light as well as heat.
Delaware Republican Senate candidate Christine
O’Donnell’s question "Where in the Constitution is the separation of
church and state?" in an exchange Oct. 19 over teaching creationism in public schools
tells us something about her but also reminds us of how often America’s
bedrock principles on government and religion are misunderstood.
Democratic candidate Chris Coons was quick to tell
O’Donnell that religion and government are kept separate by the First
Amendment.
"You’re telling me that’s in the First Amendment?" she responded.
Indeed it is.
Indeed it is NOT! O’Donnell explicitly asks where in the Constitution the words "separation of church and state" appear and when Coons wrongly asserts it is in the First Amendment she seeks to clarify that he is indeed making the false statement that it is in the First Amendment.
Here’s a quick take on what the First Amendment says — and doesn’t say:
Keeping government out of religion and religion out of government is a core principle of the First Amendment.
The first 16 words say, "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof."
Keeping government out of religion is spelled out in the first 16 words, but what in those words keeps religion out of government and where are the words "separation of church and state" that Coons says can be found there?
That means government can’t limit our personal faith or favor one
religion over others. [Yes] . It also means that creationism cannot be taught in
America’s public schools.
Um, whaaaaaaat??? That is quite a leap! Maybe that part can be found in the mythical version of the Constitution where the words "separation of church and state" appear…
The separation of church and state has been a cornerstone of American ideals for centuries.
As early as 1640, Rhode Island founder and theologian Roger Williams
cited the need for "a hedge or wall of separation between the garden of
the church and the wilderness of the world."
Perhaps a better indication of the cornerstone of American ideals comes from the Declaration of Independence. This non-secular document signed by the Continental Congress acknowledges that our rights are given from God. It also references "Nature’s God," "a firm Reliance on the Protection of divine Providence," and "appealing to the Supreme Judge of the World." Does this sound like the beginnings of a nation that would want to keep church and state separate?
James Madison, the author
of the Bill of Rights, would later explain the need for this separation,
saying, "religion and Govt. will both exist in greater purity, Â the
less they are mixed together."
Madison says church and state are respectively best when their joining is kept to a minimum. That is not the same as saying that there must be a separation of church and state, nor is it saying that that is what was intended in the First Amendment.
Fortunately, there are Congressional transcripts that can tell us what was discussed DURING the drafting of the Bill of Rights:
"Mr. Madison thought, if the word national was inserted before religion, it would satisfy the minds of honorable gentlemen. He believed that the people feared one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform. He thought if the word national was introduced, it would point the amendment directly to the object it was intended to prevent…"
Clearly Madison’s concern was the establishment of a national religion on the whole country - kind of like how there’s a Church of England - and NOT with abolishing religion from government altogether.
The words "separation of church and state" appear nowhere in the Constitution.
That’s true, [Thank you! ] and O’Donnell’s camp now says that’s what she really
meant.["NOW" says? It was clear from the beginning that was what she meant! ] The phrase stemmed from a letter Thomas Jefferson wrote to the
Danbury Baptist Association in 1802. He cited the language of the First
Amendment and said that it built "a wall of separation between Church
and State." This was not just some poetic flourish. This was one of the
nation’s founders and author of the Declaration of Independence
explaining exactly what the First Amendment means.
At least Paulson is careful here in saying that Jefferson was a founder and author of the Declaration - he was NOT an author of the Constitution. In fact, he was in Europe while it was being drafted and his letter was written 10 years after the First Amendment was ratified. While Jefferson is certainly an important forefather whose opinions are key to our understanding of the founding of our nation, he was not present and did not participate in the debates on the Bill of Rights and thus could not "explain[] exactly what the First Amendment means."
Later in the debate, O’Donnell challenged Coon to
name the five freedoms of the First Amendment. He came up four freedroms
Welcome to the club. First Amendment Center surveys show that most
Americans can name just one freedom in the First Amendment and only one
in 25 can name all five — freedom of religion, freedom of speech,
freedom of the press and the rights of petition and assembly.
"Welcome to the club"??!! That’s all he gets for not knowing a basic tenet of the Constitution?! While O’Donnell gets a long lecture despite her being correct that "separation of church and state" is nowhere written in the Constitution and Bill of Rights?!
Obviously this article was not written to inform or correct the record on the First Amendment, but to provide political cover for Coons’ errors and continue the incorrect narrative that O’Donnell didn’t know her Constitution.
Crossposted at AlexaShrugged .
The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, figure they've discovered the smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
ReplyDeleteJames Madison confirmed that he understood the Constitution and First Amendment to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision ("no religion shall be established by law, nor shall the equal rights of conscience be infringed") and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment's terms and legislative history, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by Congress and/or the Executive doing all sorts of things to promote this or that religion--stopping just short of formally establishing a church.
Indeed, Madison spoke the words you quote during the proceedings of the First Congress to describe his understanding not of the First Amendment, but rather of the narrower precursor (quoted above) then under consideration. He proposed adding the term "national," thinking that would address the expressed concerns of some. Following his motion, others expressed misgivings about the wording and scope of the proposal. Mr. Livermore suggested that it be altered to state "Congress shall make no laws touching religion, or infringing the rights of conscience." Madison withdrew his motion, and the House then considered and passed Livermore's motion. The Annals of Congress reveal little more other than that over the next several weeks, the proposal went through several more iterations and emerged as what we now know as the First Amendment. As noted above, in his Detached Memoranda, Madison offered a detailed discussion of his understanding of the First Amendment as actually adopted.