Christine O’Donnell on Separation of Church and State

Oh dear, more confusion.

The context of her remarks were discussing what a local school board can do, and she said that separation of church and state is not in the constitution. If she meant textually, she’s correct, indeed, obviously so. The phrase itself does not occur, though that isn’t so important. Jefferson, from whom we get the phrase more or less, thought that the concept was in there somewhere despite the absence of the phrase. But if by the concept you mean the concept that no government entity, from local to federal, may engage in acts of establishment, then no, that is not in the First Amendment. C’mon, people, how could it be? What are the first five words of the First Amendment?

Congress shall make no law.”

What about the concept? Does this text at least evince a general antipathy toward religion/government entanglement? It does not. Because an earlier draft was rejected and the reason why was because states (e. g., New Hampshire) which had established state churches feared it would make their state churches unconstitutional. Hence the wrinkle of the ratification draft “Congress shall make no law respecting an establishment of religion.” No implications for the unconstitutionality of state-level establishment exist, other than that the federal level cannot establish, or disestablish, state-level churches.

In 1833, the Supreme Court was asked to rule on the question of whether the Bill of Rights applied to the states. Its answer was unequivocal. No, said the Supreme Court, the Bill of Rights “contain[s] no expression indicating an intention to apply them to the State governments. This court cannot so apply them.” Barron v. Baltimore, 32 U.S. 243, 250.

This is one of the reasons the Fourteenth Amendment was enacted, and why it is one of the most important pieces of the Constitution. For after emancipation, the re-admitted former Confederate states strove to re-create slavery in all but name, by way of the notorious “Black Codes” and no court could hold that such laws violated the federal constitution because, under Barron, they didn’t. They couldn’t. So our Second Founders, the Reconstruction Republicans in Congress, drafted the Fourteenth Amendment, which contained the following words, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” Well, what’s a privilege or an immunity of national citizenship? Senator Howard explained that they included “the personal rights guarantied and secured by the first eight amendments of the Constitution”, and you can see this for yourself.

Now this is tricky, for Senator Howard makes it clear that these provisions are not co-extensive with the first eight amendments, as there are other provisions, for example, those contained in “the second section of the fourth article” of the Constitution. Conceivably, not all provisions of the first eight amendments are included. But happily, we have a mechanism for resolving such questions of interpretation. It is called the Supreme Court.

And in 1947, it said, in Everson v. Board of Education, 330 U.S. 1, that the Establishment Clause of the First Amendment was among those provisions “incorporated” into the Fourteenth Amendment and applied against the states.

Can reasonable people differ about whether the Everson court understood the intent behind the Fourteenth correctly? Sure. Does the absence of the words “separation of church and state” from the First Amendment, or the presence of the word “Congress,” prove a damn thing about what the Fourteenth Amendment was intended to do? Not a whit.

In Ms. O’Donnell’s defense, this is a tenable discussion. Her claim that it is a core constitutional value that the federal government should not be “getting into the business of the local communities” would probably be at least questioned by the ghost of Abraham Lincoln, or the ghosts of the Union soldiers who died on the battlefield, precisely to get into the business of local communities, where those communities had failed to uphold core constitutional values. And it does not inspire confidence that when a panelist asked her what she thought of the Fourteenth Amendment, she seemed to not know what it is.

Alas, she’s not alone.

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4 comments on “Christine O’Donnell on Separation of Church and State

  1. BV says:

    I agreed wholeheartedly with the first graf; I always understood the term “separation of church” and state a reflection of intent or what the founders, Jefferson and Madison in particular, thought the effect of the First Amendment would be. It’s hard to believe that anyone could read later writings from both and come away with the impression that either of them did not unequivocally support the notion.

    The second point about states making laws abridging religious freedoms is well taken, although many state constitutions have similar clauses in them with the same prohibitions on its lawmakers (Florida’s does, for example, I haven’t checked them all, but I’d be surprised if most others do not).

    What’s striking about the O’Donnell goof is the extent to which some on the right has accepted that ANY interpretation of the Constitution is out of bounds and tantamount to judicial activism, to the point that if it’s not spelled out, well, it’s just not *there*. Okay, I guess we can fire all those judges, then. Because, to me, saying “separation of church and state is in the constitution” is crystal-clear, a slam dunk.

  2. poseidonian says:

    Here’s the thing. There are *lots* of things in the Constitution. The “just read what’s there” fails to grasp the following: the constitution is *law*, and law only gets applied in law suits and prosecutions. In law suits and prosecutions, there are two parties, and they will each try to provide a half-way plausible interpretation of the law such that they win, and the opponent loses. So the judge or justice simply has no choice but to pick a winner, which means picking an interpretation, which means conveying the impression of overthinking and sophistry. This is how it works, and there is no way that I can imagine which avoids this problem which isn’t worse (an inquisitorial system with no defense counsel, or indeed, any counsel, would perhaps do the trick).

    Saying “just read the law” evinces ignorance of litigation in the same way that saying to a translator “just say the same thing, only in English” evinces an ignorance of poetry.

    Yes, the initial drafts are separationistish, but they were rejected by delegations that were not very separationistish, and the compromise drafts are what became law. We have no choice but to muddle through as best we can.

    Whether the Establishment Clause was incorporated is something reasonable people can differ on, but to be a reasonable person here, one must know a thing or two.

    By the by, if you go back and read the prior posts of this blog, you will find that I m a big fan of incorporating Bill of Rights provisions and applying them against state and even local government, whether they be found in the First or in the Second Amendments. What’s sauce for the ACLU is sauce for the NRA. (Though of course some might deny that freedom from Establishment is a “privilege” just as some have denied that the right to bear arms is an individual right).

  3. Pliny the Elder says:

    It is also important to remember, as Amar emphasizes in The Bill of Rights, when a provision is incorporated we do not simply apply it “against” the states, we begin reading it differently, so the 4th Amdt protection provided by Wolf (and then Mapp) ends up being much more robust than that provided by Silverthorne.

  4. poseidonian says:

    Yes indeed. But my impression is that an awful lot of people have not even heard of incorporation at all.

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