Monday, October 25, 2010

The First Amendment Protects Witches Too

          By now everyone has an opinion, and you can choose which side to take. Was Christine O'Donnell, the Delaware Republican Tea Party Senate candidate, in a debate with her Democratic opponent Chris Coons, making the sophisticated point that the the Establishment Clause has been misinterpreted to require the separation of church and state? Or was she unaware that the First Amendment has an Establishment Clause?  Watch the video or read the transcript

          Coons said that “religious doctrine doesn't belong in our public schools.”

          “Where in the Constitution is the separation of church and state?” O'Donnell asked Coons.

          He said it was in the 1st Amendment.

          “Let me clarify,” O’Donnell continued. “You’re telling me that separation of church and state is in the 1st Amendment?”

          “Government shall make no establishment of religion,”  came the reply.

           “That’s in the 1st Amendment,” she asked.

          To me it sounds like she didn't know the Establishment Clause is in the First Amendment. That interpretation is supported by O'Donnell's objection to the main point that Coons was making, namely that  private and parochial schools are free to teach creationism but that "religious doctrine doesn't belong in our public schools." "Local schools do not have the right to teach what they feel?" O'Donnell said. "Talk about imposing your beliefs on the local schools." Coons had the law on his side here. The imposing your beliefs was done by the Supreme Court, which has clearly stated that teaching creation science in the public schools violates the Establishment Clause. Later in the debate, O'Donnell admitted that she couldn't remember the text of the Fourteenth Amendment, which provides the reason why the Establishment Clause applies to public schools in Delaware. The Court has ruled that the Fourteenth Amendment applies the First Amendment (which mentions only Congress) to state and local governments.
            What lessons should we learn from the constitutional debate in Delaware?
        First, if you are going to be a strict textualist in interpreting the Constitution, you should keep a copy in your pocket, as Justice Hugo Black always did. Black was very strict about the Constitution. In the First Amendment context, he thought that no means no, and so believed that Congress should pass no laws limiting First Amendment freedoms. Ironically, the strict textualist Black acknowledged that the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."
          Second, it is naive to think that the text of the Constitution can answer all the questions posed to it. It is clear what the Constitution means when it says that the president must be thirty-five years old and potential senators like O'Donnell must be thirty. But other constitutional questions require analysis and interpretation of what the Constitution means in circumstances unforeseen by the Framers. We think that the Internet is protected by free speech, for example, even though the Internet was not contemplated by the Framers and the word Internet does not appear in the Constitution.
        If O'Donnell was making the point that the words separation of church and state are not in the Constitution, she is mistaken to think that the Constitution can be interpreted by relying only on the words in the Constitution itself. After all, the First Amendment doesn't say that witches enjoy the free exercise of religion. And the Framers were not keen on witches either. But, even if she is not a witch, surely O'Donnell would have to agree that the Constitution protects them too, even though they are not in the text of the Constitution or in the minds of the Framers?


1 comment:

  1. This is a great post. I cannot believe I overlooked this. As a Christine O’Donnell enthusiast and fan (but not a political supporter of this woman by any means), I strongly disagree with the mere suggestion that Christine O’Donnell did not know the Establishment Clause was in the First Amendment. She physically spent time on the Oxford College campus. Clearly, O’Donnell must know her stuff. Make no mistake. Behind those stiffly rehearsed folksy mannerisms lies a strict textualist.

    Then again, I trust anyone who nonchalantly admits to picnicking with friends at a satanic altar after a movie. And, really, who hasn’t?