Tuesday, October 19, 2010

Parsing the First Amendment 

Christine O'Donnell, the Republican candidate for the U.S. Senate running in Delaware, does not do any favors for so-called Tea Party candidates or other Republicans by trying to parse the language of the establishment clause during a debate -- or worse, of being ignorant of it, which I hope and think was not the case. All she accomplished was to paint a bigger bullseye on herself, which the media is quite happy to exploit, with some justification.

Is this even a worthwhile point to talk about during a debate? Is there a well-respected legal scholar somewhere out there who would argue the point that the establishment clause doesn't effectively separate church and state?

In fairness to O'Donnell, her opponent Chris Coons could only name one of the five freedoms in the First Amendment when she asked him about it during the debate. Everybody should get at least three.
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.
I think I'm happy I don't live or vote in Delaware.

UPDATE: I think I have a decent layman's understanding of literal text of the First Amendment, and the history of the establishment clause, and how it has been interpreted during the last 50 years or so, during my lifetime. By coincidence, I grew up in Abington Township in Montgomery County, PA, which was a litigant in Abington School District v. Schempp, one of the notable Supreme Court cases regarding prayer in public school. In an 8-1 decision, the Court found in 1963 that school-sponsored Bible reading in a public school system was unconstitutional. I started elementary school in the district shortly after that, and when I later first learned of the case, I wondered why the Township would be involved in a law suit with one of the Three Stooges, but I was happy that at least it wasn't Curly.

I do appreciate the links to Ace, Althouse, Instapundit and others from the comments, and my take on it is not too far from theirs, which (especially Ace) could be summarized as "I think I know what point she was trying to make, but the political optics sucked." Anon Attorney makes a valid point that it goes to the much broader originalism vs. penumbras struggle, but looking at the video, I just don't think O'Donnell did a good job of making her point, and it backfired on her.

I understand that lots of people feel that the establishment clause has been broadened too much, and that there are local spats about Christmas decorations, and the resulting culture is overly secular and fails to recognize the influence of Christian theology and faith in the founding of the U.S. (I personally have an appreciation for the faiths of our Founders, mixed as it was.) I don't mean to pick a fight with anybody that feels that way (nor do I want to address those who want to spend time and money to get rid of "In God We Trust" from the currency), but my point was that O'Donnell probably had a better way of making debate points in a state such as Delaware, without providing a series of "money shots" for the media. In a mid-Atlantic state, a Senate candidate in 2010 is going to have a serious uphill fight advocating for the teaching of Intelligent Design in public schools.


By Blogger Dawnfire82, at Tue Oct 19, 11:12:00 PM:

This reminds me of when people leaped upon Sarah Palin (who is not a lawyer) for not being able to immediately recall a disliked Supreme Court case other than Roe v. Wade, which the media contrasted unfavorably with Obama and Biden (who are both lawyers).

Likewise, Coons is a lawyer (from fucking *Yale*) and O'Donnell is not (though familiarity with the Bill of Rights ought to be required of any candidate for public office...).

Ace seems to think that she meant to draw a line between the actual language of the Establishment Clause and the phase "separation of church and state," which is, of course, nowhere in the Constitution even though many people swear it is. But if so, it was clumsily done. Good counterattack, though.  

By Anonymous Anonymous, at Tue Oct 19, 11:50:00 PM:

What's mind boggling is that after being told once that constitution provides for separation of church and state, she pressed the issue with Coons TWO more times (to much guffawing by the audience) asking Coons as if this was the first time she heard of it: "So you're telling me that the separation of church and state is found in the First Amendment?" Good grief. You can see it on the video here

Dawn, George Bush went to fucking "Yale", too, and then on to G*d Damn Harvard B-school. Oh wait, maybe that's your point.... Got it:)  

By Anonymous Anonymous, at Tue Oct 19, 11:56:00 PM:

Oath of Office: I, Christine O'Donnell, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same....

As soon as I get around to figuring out what the damn thing says.:~>  

By Blogger Carolyn, at Wed Oct 20, 12:00:00 AM:

A slightly different take. Ace emphasizes that it's desirable if candidates can explain what they mean without clarification by supporters.

His preference for clear communicators as candidates reminds me of my anger at the dirty tricks by the California Democratic Party which cost Bruce Herschensohn, a very clear communicator, the election against Barbara Boxer years ago. Time for her to go.  

By Blogger Carolyn, at Wed Oct 20, 12:22:00 AM:

Oh, and Anonymous,

About the Oath of Office and knowledge of the Constitution: It was O'Donnell's opponent, not O'Donnell, who could not describe what was in the First Amendment, other than the Establishment Clause, which he described as the "Separation of Church and State".

O'Donnell clearly understands what the five freedoms in the First Amendment are, or she would not have challenged Coons to name them. She was somewhat clumsy in drawing the distinction between the Establishment Clause and "Separation of Church and State". Although I'm not happy with how she handled this issue, Coons came up shorter on the "Constitutional knowledge" scoreboard than she did. As Tigerhawk suggests, the choices in Delaware this year leave something to be desired.  

By Anonymous Anonymous, at Wed Oct 20, 12:26:00 AM:

>> Is this even a worthwhile point to talk about during a debate? Is there a well-respected legal scholar somewhere out there who would argue the point that the establishment clause doesn't effectively separate church and state?

Anon Attorney here. I'll take this bait because this is an area which interests me.

O'Donnell was correct both in the literal sense--the words of the FA do not specify a separation of Church and State--and in the historical sense. At the time the FA was drafted eight of the thirteen colonies had established religions in their respective Constitutions. These established religions remained in place long after the ratification of the US Constitution.

Proponents of the argument that the Constitution embodies this principle invariably cite the writings of Jefferson, and his oft-repeated quote from the Danbury Baptist letter. This is disingenuous in two respects. First, Jefferson was not present at the Constitutional Convention in 1987 (he was in France) and had no input to the Constitution. Second, this writing was a post-hoc attempt by Jefferson to impart his preferred interpretation onto the clause.

Our modern understanding of religious freedom under the FA is based on 20th century jurisprudence, not on the text of the FA or the understanding of the document when it was ratified.

Is this meaningful? I think it is, at least inasmuch as the debate over originalism vs. the "living breathing" document is a meaningful debate. And this debate is tied directly to the debate over the proper role of the judiciary in a Republic.  

By Blogger Carolyn, at Wed Oct 20, 01:26:00 AM:

Thanks for the history lesson, Anon Attorney.

I had a stray thought for people who are not too wild about their choices in this election. It's Dennis Prager's idea from years ago: If you don't like either candidate, vote for a candidate's Rolodex. Decide which advisers, financial supporters and interest groups you want influencing the legislative agenda for the official who will be elected.  

By Blogger JimVAT, at Wed Oct 20, 07:53:00 AM:

Anon Attorney is 100% correct. Eight of thirteen colonies did indeed have establishments of religion at the time. The FA only prevented the Congress from making any law interfering with a state's right to establish religion. Even Jefferson admitted in the Danbury letter that the Federal Government is powerless to interfere with states' establishments of religion.

It is amazing how misrepresented the FA is in this regard. And I am one who supports strong church/state separation who can admit the FA did not do it!  

By Anonymous Anonymous, at Wed Oct 20, 07:57:00 AM:

Carolyn, it wasn't just that O'Donnell was questioning whether the "separation of church and state" language was specifically in the Constitution, she was actually flummoxed after Coons recited the Establishment wondering aloud "That’s in the First Amendment?”

When asked if she would repeal Amendments 14, 16 and 17, she responded that she would keep the 17th Amend. but asked the moderator " Can you remind me of what the others are?"

Defend her as you choose but if one is going to run with the Constituiton as your platform and limiting what Government can and cannot do, one might want to bone up on the Bill of Rights and it's amendments. It's not really all that long and shouldn't take the average reader more than a couple of hours to read cover to cover. There's even a version with pictures!.

Of course, understanding it is a whole 'nother skill set.  

By Blogger Carolyn, at Wed Oct 20, 09:24:00 AM:

Anonymous, you could also interpret her question as referring to Coons' insistence that the establishment clause amounted to "separation of church and state".

Ann Althouse and Glenn Reynolds weigh in:

Althouse: "Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.
The 2 were talking past each other, trying to look good and make the other look bad. It is a disagreement about law between 2 individuals who are not running for judge. It’s not detailed legal analysis. It’s a political debate and this is a political disagreement. An important one, no doubt. But it can’t be resolved by laughing at one person and calling her an idiot, something I find quite repellent."

Reynolds on the audience reaction: "Once you understand that to the credentialed-instead-of-educated, the Constitution is a wish-fulfillment device rather than, you know, an authoritative text, it all makes sense. And there’s no real need to know or care about the words in the text, since it means whatever you want it to mean at the moment."

And remembering which amendment is which in a tense situation like a debate may be harder than you think. After all, Coons couldn't name the freedoms in the First Amendment. Don't liberals care about those freedoms? Why aren't you making fun of him, too? He's the one who went to law school.  

By Blogger Kinuachdrach, at Wed Oct 20, 10:17:00 AM:

Esccort81 -- you really did step in it here. While you were trying to do a sophisticated sneer at Ms. O'Donnell, all you showed was your own ignorance.

As we all know, Ms. O'Donnell was factually correct, and the bearded Marxist (& Escort81) were wrong --the words "separation of church & state" are not in the First Amendment.

Nor does that Amendment's prohibition against federal action on the establishment of religion mean "separation of church & state".

Go stand in the corner for a while, Escort81. And contemplate your own inadequacy.  

By Anonymous Anonymous, at Wed Oct 20, 10:31:00 AM:

Whatever. She's going to lose the race just like she did the other two times she ran for the seat. Her current disapproval rating is at 59%.

The fact that Republicans in Delaware were willing to nominate an a religious activist with weak credentials, who can't manage her own financial portfolio, hasn't held a job since 2005 and then only for 8 months but still saw fit to sue her employer for $6.9 Million after she was fired citing mental anquish and protection under Civil Rights Act of 1964 (Take that Rand Paul!) says more about how dissatisfied the Republicans are with their own party than it does about any Democrat that may be elected.  

By Blogger Bomber Girl, at Wed Oct 20, 10:52:00 AM:

I have to thank you all for the (re)education. I will sadly admit that if pressed, I might have forgotten right to petition (although would certainly get it on a multiple choice exam). Although perhaps in today's political world, it should be the right to tweet.  

By Blogger Progressively Defensive, at Wed Oct 20, 11:27:00 AM:

What ought to be really troubling is that no political candidate that I've seen can explain to very busy working voters, poor, middle-income, and rich, why large government in itself hurts their opportunities life, liberty, and the pursuit of happiness. The most conservative establishment Republicans offer one nauseating platitude after another tend toward the Christian-funadmentalist, and the wild-card Tea Party candidates running in 2010 are all so ill-equipped (not stupid) to argue their case.

It's too bad because this is so important for the future of not merely the USA, but all of humanity.

Have you seen what's going on in Paris over such relatively small changes to benefits?

The USA is a "city on a hill" philsophically and martially; one besieged and O'Donnell, Romney, Palin, Gingrich, etc. are not auspicious advocates in it's defense.  

By Blogger Progressively Defensive, at Wed Oct 20, 11:32:00 AM:

They've been rioting (fires, wrecking store fronts and cars, etc.), now shutting down airports, for 8 days in Paris. The tipping point is closer than many think for the USA and if the USA falls - in terms of a fundamental political philosophy that protects the individual from the masses, even if it still exists structurally the same, its a dark day indeed.  

By Anonymous Ignoramus, at Wed Oct 20, 11:32:00 AM:

Loved Anon Attorney's post. Here's a piece of arcana to further illustrate the ebb and flow of "separation" over the years.

"Catholic grammar schools" started in the 1800s in response to the Protestant bias of many public schools of the time. This bias was purposeful and was an expression of the Know-Nothing Movement.

Once again, the rebellion started in Boston: in 1859 a Catholic schoolboy was beaten for not reading aloud from the King James version of the Bible. In front of assembly, the principal said "Here's a boy that refuses to repeat the Ten Commandments, and I will whip him till he yields if that takes the whole forenoon." But the principal gave up after only 30 minutes of beating the kid's hands with a stick ... when the kid refused to yield. Over the next few days, most of the Catholic kids stopped showing up at this school or were turned away when they showed up carrying the Vulgate Bible. "Teacher, leave them kids alone !"

This may seem strange today, but the back-story had been exported from Ireland. Unless they renounced their faith, Catholics in Ireland were legally disenfranchised -- they couldn't own property, let alone vote ... while public taxes went to support the Established Protestant Church of Ireland. Blow me.

So after the Civil War, Catholics, mostly the Irish in the Eastern port cities, saved their pennies to create their own school systems.

Flash-forward ... In and after WWI, we had another bout of arch-Nativism. It led to some states trying to ban Catholic grammar schools altogether. It went to the Supreme Court in Pierce v Society of Sisters (1925), which overturned an Oregon law. Lawyers in support of the law argued that the State had an overriding interest in overseeing the education of children. Ironically, this decision relied on an expansive reading of the 14th Amendment (not the 1st Amendment) and led to a line of cases that later gave us Roe v Wade. Go figure.  

By Anonymous Ignoramus, at Wed Oct 20, 11:47:00 AM:

Anon at 10:31am makes some good points that Christine O'Donnell isn't the best representative of the 2010 Primal Scream ... she's actually more of a throwback to the Karl Rove 2000 Holly Roller Religious playbook. As I've said before, some opportunists are riding the Tea Party Express. But Mike Castle sucked even more.

O'Donnell is a sideshow geek. The better story is how Sean Bielat might beat Barney Frank. Barney just had to kick in $200,000 of his own money. In debates, Bielat has forced Barney to make blatant lies about his involvement in the mortgage crisis. Developing ....  

By Anonymous Anonymous, at Wed Oct 20, 12:01:00 PM:

Anon Attorney here. Thanks to all who gave me props for my (very) brief post. I have a book on the subject outlined, but no time to write it and not sure whether there is sufficient interest in the topic for the book to sell.

When I first read this post I did not read the byline and was taken aback that TH, who I know is an attorney, would write such an ill-informed post. Now I see the post is by Escort81.

Escort81, I would suggest you have been duped by the forces of modern educational system and mainstream media.  

By Anonymous Anonymous, at Wed Oct 20, 01:49:00 PM:

Ace now argues that the WashPo writer published an inaccurate quote from O'Donnell, creating the controversey and making her appear far less clear than she actually was in her statement. Worse, he says that they appear to have scrubbed the original article and corrected the quote without issuing a correction. The appearance the writer created of her confusion will live on forever, but the correction (essentially a retraction) by the Post will not. This is actually pretty ugly stuff.  

By Blogger Carolyn, at Wed Oct 20, 02:45:00 PM:

Doctor Zero had an interesting assessment of this race before the primaries:"You couldn’t ask for a more vexing political conundrum than the Delaware Senate primary.  It’s like something a poli-sci professor dreamed up to torture his students."

The race is unfolding like a bad political soap opera. Ace's revelation about the misquote by the Washington Post is just another chapter. Maybe it's time to ignore the media and vote for the Rolodex you favor.  

By Blogger Carolyn, at Wed Oct 20, 03:34:00 PM:

Anon Attorney, about your book outline:

You might consider getting in touch with Dennis Prager's program director. Dennis might be interested in discussing this history with you on air, whether or not you agree with his views about the place of religion in civic life.  

By Anonymous Anonymous, at Wed Oct 20, 06:54:00 PM:

So basically, she is right and no one cares what is in the written document.


By Anonymous Anonymous, at Wed Oct 20, 07:12:00 PM:

Anon at 1:40 the WashPo writer published an inaccurate quote from O'Donnell, creating the controversey and making her appear far less clear than she actually was in her statement.

Huh? All you have to do is listen to the tape of the debate to hear her head scratching queries about what's in the Constitution. Three times no less.

Moreover, she's claimed several times recently that one of the reasons she's qualified to hold ofice is her "graduate fellowship from the Claremont Institute in constitutional government, and it's that deep analysis of the Constitution that has helped me to anlayze and have an opinion…the study of the constitution."

This is the same consitutional scholar who couldn't name a single recent Sup Ct. decision with which she disagreed when asked at the last debate. "I'll have to get back to you...."

Ferchristsakes. Didn't she even bother to watch the Palin interviews??  

By Blogger Carolyn, at Wed Oct 20, 08:15:00 PM:

Aaron Worthing accidentally preserved a copy of the Washinton Post text before they corrected it -- without issuing a correction. You can judge for yourself if the reporter was trying to make O'Donnell look bad.  

By Anonymous Anonymous, at Wed Oct 20, 09:48:00 PM:

>> This is the same consitutional scholar who couldn't name a single recent Sup Ct. decision with which she disagreed when asked at the last debate. "I'll have to get back to you...."

Anon Attorney here again. I don't have a dog in this race, but I'll call BS on this idiotic line of argument. I won the American Jurisprudence Award for Constitutional Law at a top 20 law school, which means I was the top student in the class in Con Law. I have forgotten more about Con Law than most of these asshole reporters ever knew.

I could no longer provide a meaningful answer to that question. I'm busy with real law practice, work, family, life, etc. I no longer have the luxury of time to read Supreme Court cases and absorb the various nuances of Con Law. So what?

It matters not one bit whether Palin or O'Donnell can crack off the name of some stupid Sup. Ct. case. It's not like she is being nominated for the court.  

By Anonymous Anonymous, at Thu Oct 21, 07:35:00 AM:

it maters not one bit whether Palin of O'Donnell can crack off the name of some stupid case...." Stunning statement, Anon Lawyer.

But can you name a Democratic senator Other than Hillary Clinton, of course. Heh.  

By Anonymous Anonymous, at Thu Oct 21, 12:23:00 PM:

Even better, after failing to name a Democratic senator with whom with she could work, she blurts out several minutes later "Senator Lieberman," the independent senator from Connecticut.

Ah, yes, Christine O'Donnell's brain working overtime:~>  

By Blogger Progressively Defensive, at Thu Oct 21, 12:41:00 PM:

Anon Attorney, please.

I'm an attorney, too.

Actually it says "Congress can pass no law ... " so the constitution permits the individual states, New York, Utah, etc., to limit speech, assembly, etc. - technically - even if you use the 14th to apply to the states - technically - or not, but the point is one can quibble about squibbles endlessly. Anyway, your book might still be a great read and education for people and you may be right as a matter of law.

But who amongst us is not thrilled that we have a separation of church and state however interpreted into being it is? I think we can still use vouchers for Catholic Schools, etc., similarly to the way we give federal funds to Catholic universities like Notre Dame. How many horrible popes, priests, and pastors (Jimmy Swaggart, and actually MLK, Jr. in terms of the faith-hypocrisy and carrying on with young women whilst married) have to occur before hyper-vigilance causes us to check those historically powerful entities, church and state, but keeping them apart.

The vote will be for how the Senator would vote more than we realize, I think.

Anyone know why Castle did not run as an Independent?  

By Anonymous Anonymous, at Mon Oct 25, 02:31:00 AM:

It is really tiresome to see such fashion from the good side. As if once cannot be honest about a very lackluster O'Donnell offering?

She is a very poor Candidate, who has not paid her bills, is not honest about her education, etc.

But fashion, a new identity IMAGE movement has pushed her into something, and we basically gave the Democrats a Senate Seat for another 6 years in Delaware. Some like the mad Reihl blogger, lied about Castle's record.

Levin even went on to distort Mr. Mirengoff's wise insight. Malkin, Hannity, Limbaugh, etc., all should have moved to Delaware to offer a vote - and should give us an apology after the election.

The idea Ms. O'Donnell is referencing the separating of Church and State at a time like this, with the economy the priority, is a sign of just how weak this offering truly is...

One can see the FASHION, as it always results in vicious demeaning by anyone from the right side of history today, the Conservatives, who dares offer some reasoned insight in regards to O'Donnell.

We have the same problem with the hype and Celebrity of the Hockey Mom. She is no O'Donnell, but no Reagan either.

Conservatives used to be reasoned, objective, fair, honest, etc. WFB was a true hero in every sense, and what we see today is often pure FASHION without basis.

Delaware was a gift to Obama, Pelosi, Reid, Clinton, etc., and the image of O'Donnell has been used to deflate the rest of the GOP offering. It is sad, but to play to the most simplistic, obvious, weak stereotypes is self destructive.

This fashion is as bad as the McCain Nomination, guaranteed to lose.  

By Anonymous Anonymous, at Tue Oct 26, 12:36:00 PM:

@ Progressively Defensive

The FA reads "Congress SHALL MAKE no law . . ." not "Congress can pass no law . . ." as indicated in your post.

Otherwise, if your post had a point it eluded me.

My point was simply that O'Donnell was correct, both literally and historically. As penance for stating the truth, she will be brutally savaged by the forces of post-modern legal theory, revisionist history, and an ignorant and left-leaning mainstream press.  

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