Tuesday, October 19, 2010

You're telling me that's in the first amendment?

About a month ago, you posted on the question of whether legislators should consider whether the bills are constitutional before passing them. Your question was prompted by Dalia Lithwick's reflection that the constitutional views of Christine O'Donnel, the Republican candidate Delaware's open United States Senate seat, were fascinating.

Professor Lester Hunt posted on his blog about Ms. Lithwick's thoughts and suggested that "When . . .Ms. O'Donnell talk[s] about 'the Constitution,' they often don't mean the literal word of the law as contained in that piece of parchment."

Professor Hunt apparently hit the nail on the head. As CBS reports, this morning at a debate with Chris Coons, her Democratic opponent, Ms.O'Donnell today challenged him on his statement that the Constitution disallowed the integration of religion into the federal government, asking, "Where in the Constitution is the separation of church and state?"

Unfortunately for Ms. O'Donnell, the debate was held at the Widener School of Law, and her question reportedly "prompted laughs from the studio audience."

The exchange took place when Mr. Coons said he considered intelligent design a religious doctrine that should not be taught in public schools. Mr. Coons said that the First Amendment explicitly calls for the separation of church and state.

Ms. O'Donnell's response to this statement with incredulity. She said "Let me just clarify: You're telling me that the separation of church and state is found in the first amendment?"

Mr. Coons responded by saying "Government shall make no establishment of religion." A slight mangling of the amendment as it says "Congress shall make no law respecting an establishment of religion. " However, I think he got the gist of it correct.

"That's in the First Amendment...?" O'Donnell responded.

The worst part of it is that earlier in the debate, Ms. O'Donnell accused Mr. Coons of constitutional ignorance by telling him "perhaps they didn't teach you Constitutional law at Yale Divinity School."


  1. Well... we can't expect our senators to know all the amendments to the Constitution, can we? Especially those old ones.

  2. A little bit more substantively, I think I know where this may come from. You often hear about the metaphor of a "wall of separation" between church and state. This idea, or metaphor, is not in fact in the Constitution, at least not literally. Rather, it comes from a letter that Thomas Jefferson wrote to the Danbury Baptist Association in 1802. It is a common meme among ideologues of a certain ilk to point out that the Constitution does not in fact mandate a "wall" of separation between church and state. I'd bet a lot of money that this is what O'Donnell was thinking about when she made her gaffe.

  3. I think the fact that she said "That's in the first amendment? " following Coons' (slightly bungled) quotation demonstrates she had no clue there was anything about religion in the first amendment. The good news is that this whole episode will allow her to find dozens of supreme court cases she disagrees with that she can put on her website.

  4. I wonder what the reaction would have been if it had been O'Donnell who said that the First Amendment says, "Government shall make no establishment of religion," and Coons had responded, "That's in the First Amendment?" My guess is that there would have been derisive laughter directed at O'Donnell because, as both you and Mr. Gillette note, the First Amendment does not say that.

    Anyhow, the conservative blogosophere is running with my theory:


  5. OK. But I've now watched the video. And this to me is the fairest interpretation of what happened:


    I also believe the point raised about imperviousness to the truth is also the key issue here.

  6. Dalia Lithwick, http://www.doublex.com/blog/xxfactor/wishful-constitutionalism
    apparently agrees with the link to Ann Althouse that Mr. Torvik posted in that she thinks the candidates were talking past one another rather than to one another. Take that for what it is worth.

  7. I think Lithwick has it right. O'Donnell was focused on the literal text of the First Amendment, and the fact that the phrase "separation of church and state" isn't in it. This isn't an example of ignorance, it's a marker of her right-wing Christian ideology. That her original comment was perceived by the audience as laughably ignorant shows, I think, that people are expecting her to say stupid things. By subconsciously dismissing her as a bimbo, liberals miss an opportunity to score more substantive points. E.g., in this case, Coons could have really hammered her on the substantive point that she clearly believes that there should be more religion in government. (But maybe that's not a substantive debate that Democrats really want to have.)

    Here's another example of what can happen when people expect republican women to be bimbos.


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