Thursday, October 21, 2010

Christine O'Donnell, the First Amendment, and the "Separation of Church and State"

Much has been made across the blogosphere about Delaware Senate candidate Christine O'Donnell's (correct) assertion that the First Amendment does not actually contain the phrase "separation of church and state."  While much of the anti-Tea Party wing of the media and interwebs crowd was quick to pounce on O'Donnell's assertion, the simple fact of the matter is that the phrase "separation of church and state" does not come from the First Amendment at all, which reads as follows:
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.
So, as we see, O'Donnell was quite right.  The phrase "separation of church and state" is nowhere to be found in the First Amendment.  What is found in the text is a strong federalist approach to the question of religious establishment -- namely that Congress should not intervene to either set up a national religious establishment or tear down then-existing state establishments of religion.   That congressional prohibition was later extended to the states via the 14th Amendment incorporation doctrine.  But the actual texts of both the First or 14th Amendments do not employ the phrase "separation of church and state."

So, where does the phrase come from?  As readers of this blog know, the phrase is not found in the Constitution or in the writing of any of the Founders at the time of the enactment or ratification of the Constitution or the Bill of Rights.  The phrase comes from a letter written in 1802 by then-President Thomas Jefferson to the Danbury Baptist Association.  The full text of the letter is available at the Library of Congress website, but here is the relevant language:
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. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Jefferson's use of the phrase "wall of separation between Church & State," written well after the adoption of the Constitution and the Bill of Rights, is a key moment in the development of the idea that the First Amendment's guarantees of religious liberty and non-establishment entail the notion of separation between religion and government.  It is no fluke that Jefferson stated this idea to a letter to a congregation of Baptists, the Baptist movement being one of the prime originators within free church Protestantism of the idea of separating the religious and political spheres.

But that doesn't explain how Jefferson's phrase and ideology ended up getting introduced into the jurisprudence interpreting and applying the First Amendment to church-state issues.  That story is told over at the always interesting Volokh Conspiracy law blog.  Spoiler:  the KKK was involved!

Update:  in response to the comment thread on this point, blogger extraordinaire and University of Wisconsin constitutional law professor Ann Althouse looks at the precise language used in the O'Donnell-Coons debate and comes to the conclusion that Coons was making a "blatant misstatement of the Establishment Clause of the First Amendment."  She thinks O'Donnell's got the better of the debate on this point.  

Althouse has more commentary on the debate and the terminology used by O'Donnell and Coons here.   As Althouse points out, O'Donnell was making a point about the actual text of the Constitution, a point that she got right.  Coons was making a point about the interpretation of that text.  And how did we get to that interpretation of the text?  That's what the Volokh Conspiracy post that I link to above helps us to understand.

14 comments:

J. L. Bell said...

I distrust any attempt to criticize or defend what someone said that doesn't quote the actual words. In this post, Christine O'Donnell's own words are notably absent. Here they are:

++++++
COONS: The government shall make no establishment of religion.

O'DONNELL: That's in the First Amendment?
++++++

O'Donnell was trying to hammer home the minor point that the words "separation of church and state" are not in the First Amendment. However, she stumbled and went too far, expressing doubt that the Amendment says government shall make no establishment of religion. That was what I saw her being criticized for.

republican voter said...

I agree with Mr. Bell's comment above. It seems a pretty weak argument to make that O'Donnell's only point was that those particular words don't appear in the constitution. After watching the full video of the debate it's very clear she was trying to make the larger point that the constitution says nothing even to that effect, which it clearly does. She is clearly skeptical when her opponent quotes directly from the first amendment. I have not been impressed with most of the attacks on Ms. O'Donnell's character, but this one in particular seems apt. Like many tea party enthusiasts, she claims to love the constitution, but displays little knowledge of what it actually says.

Angie Van De Merwe said...

J.L.Bell, Ditto.

It seems that Jefferson's comment; " Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." might seem to direct citizens of their duty to government. But, how does government ensure such a stance?
Is there to be legal stance toward such virtue? Then, government has demanded and required what the citizen should give of his own free volition. And whenever a government demands, then government abuses power over individual choice and value as to one's social duties.
Or should there be a societal stance toward such virtue? One's social duties differ from individual to individual. But, family obligations are certainly one that everyone would agree upon. Hoe the family is defined is where the political differences come into play...

Jonathan Rowe said...

Mark,

I think I might need to challenge you in a frontpage post on the KKK thing. I'm not challenging the history but the logic involved. Though I've never met Hamburger, (and I'm not sure if he's Roman Catholic) I do know a number of the very brilliant Roman Catholic scholars from the James Madison Program who seem to like Hamburger's Black/KKK riff: I'm directly posing this question to them. I did get one to agree, yeah, it's more interesting history than our best argument for why SOCAS is no good.

Angie Van De Merwe said...

Jefferson's letter was addressed to a Baptist, which has implications about what Jefferson might affirm. Since Baptists believe in a supernatural God and a re-birth, then Jefferson was just affirming the right of a Baptist to separate their political allegiences separate from their spiritual duties.

Not all religious traditions understand themselves in such a way, esp. the Catholic, which believes the social institution itself is a political entity (which it is).

The "group" rights movement, meaning special interests in other terms, is just a way for poltical empowerment in rectifying injustices from the past.

Is slavery immoral IF both slave and slave-owner agree to it, as a function of economic outcome and value? No. What is immoral is when the slave has no voice or right before the law, meaning that they are denied the right to information and thus are discriminated against and "used". As long as the 'slave' has understood his place and function within a particular society, and AGREES wholeheartedly to it, then it is not abuse of power.

Mark in Spokane said...

Jon,

Within First Amendment circles, Hamburger's historical scholarship is pretty highly regarded. For the most part his work has undergone rigorous peer review (outside of the law review context) and is well-cited by legal authorities. I'm not familiar with anything on the KKK link published by the Madison Program folks (I have to confess that I'm not familiar with Robbie George's work).

Shugbear said...

If both slave and slave-owner agree to it then by definition one is not a slave.

Jonathan Rowe said...

Mark,

I know it's highly regarded. And I regard most of it pretty highly. However, that doesn't make it immune from criticism. I see his Klan argument as his weakest argument against SOCAS from a logical/legal perspective. And I'll explain why in my next post.

Tom Van Dyke said...

COONS: The government shall make no establishment of religion.

O'DONNELL: That's in the First Amendment?


I'm not convinced O'Donnell was responding directly to Coons here. It was getting rather heated and cacophonous.

She did later ask him to name the five freedoms of the First Amendment, suggesting she knows something about it after all. [He did not reply.]

I'll be glad when this election's over. I'm amazed we ever get any history done atall; we can't even agree about what happened yesterday.

Angie Van De Merwe said...

Tom,
I appreciate you giving the 'benefit of a doubt"...

What one knows or doesn't know officially, has little to do with whether they are able to govern, as I believe that if people have the capacity to learn, which most that run for office do, then they also have the ability to ask others that would have the knowledge to help them govern. This is why Presidents listen to others. No one can have all the information that is needed to grasp all the angles of an issue and govern well, unless they have good counsel...

Angie Van De Merwe said...

I mean "formally", not officially"...

Tom Van Dyke said...

True, Angie. We have history professors declaring opposition candidates to be toejam because mere politicians don't have the knowledge of a professor.

And the O'Connell-Coons debate simply got out of hand. Bad moderating. A good moderator would have sorted it all out and we'd know who knows what instead of guessing.

The relevant part of the discussion was Coons' belief in a "living Constitution" vs. O'Donnell's "originalism." That dispute---the legitimate philosophical difference between the candidates---is what people should really be voting on, not quiz-show criteria.

skinner city cyclist said...

Re: Jefferson's letter to the Danbury Baptists, it is helpful to read the letter of the Danbury Baptists to Jefferson to which Jefferson's letter is a reply (http://candst.tripod.com/tnppage/baptist.htm). Their conserns are that they consider themselves oppressed by the established, Congregationalist church of Connecticut, and they are looking for Jefferson's moral support in their desire to see "separation of church and state" extended beyond the confines of the Federal government. That is what Jefferson means when he writes: " Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties." He looks forward, in fact, to the 14th Amendment.

Doug Indeap said...

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.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them 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.”

Note, too, that as President he vetoed two bills, neither of which would form a national church, on the ground that they were contrary to the establishment clause.

Jefferson's use of the phrase "separation of church and state," by the way, made its way into Supreme Court jurisprudence long before the Everson decision in 1947. See Reynolds v. United States, 98 U.S. 145 (1878).

The KKK smear against Justice Black is sometimes offered as an explanation for his opinion in Everson v. Board of Education--even though all nine justices agreed on the principle that the First Amendment called for separation of church and state (so it was hardly just Black's doing) and Black led the majority of five in holding that the principle did NOT preclude state funding of transportation of students to parochial schools.