Sometimes the Power Elites Get it Right

 Posted on October 20,2010 in Uncategorized

I wanted to defend Christine O'Donnell.

I read reports of the Delaware Senatorial candidate's debate against Chris Coons, in which she questioned whether the U.S. Constitution demands separation of church and state, mindful of Mike's (Crime and Federalism) suggestion that power elites control public perception of candidates, like O'Donnell, who were not born into the right social class.

The derisive reaction (see, e.g., Political Ticker, Huffington Post) to O'Donnell's reported words seemed unfair. O'Donnell asked Coons where the words "separation of church and state" appear in the First Amendment; they don't, of course. Almost a century and a half of Supreme Court precedent says so. But the fact that the Supreme Court says something does not render further discussion unimportant.

First, separation is not a talisman against all involvement of government in religion or vice versa:

The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State. Rather, it studiously defines the manner, the specific ways, in which there shall be no concert or union or dependency one on the other.

That's the Supreme Court in Zorach v. Clauson. So "separation of church and state" doesn't get us any closer to a rule than non-establishment and free exercise did.

Second, and more importantly, the Supreme Court doesn't always get it right. My personal opinion is that more separation is better than less; I only wish that the Framers had had the foresight to mandate separation of Corporation and State. But reasonable minds can disagree, and Reynolds v. U.S. and its progeny are no more sacrosanct than, say, Terry v. Ohio and its. "It's not in the First Amendment in those terms" would be a good starting point for a discussion among laypeople of how far the separation of church and state should go.

So I wanted to defend Christine O'Donnell. But then I watched the video.

O'Donnell may not be as dumb as she seems, but her smugness suggests otherwise. Holy cow, that woman is smug. It's not that she thinks the discussion of the separation of church and state should take into account that that's not what the Constitution says (even her opponent, in the audio here, concedes that hers is an excellent question) but that she seems to think that's where the discussion ends.

At 7:06:

O'Donnell: Let me just clarify: you're telling me that the separation of church and state is found in the First Amendment.Coons: The Government shall make no establishment of religion.O'Donnell: (Dubiously) That's in the first amendment. (Grins like the cat that ate the canary.)

I understand that, among political rightists, the text of the Constitution (like that of the Bible) is considered literally true, inerrant, and complete (and scientific theories are "just" theories, and "intelligent design" isn't creationism because the name is different). Courts shouldn't talk about "separation of church and state," even as a shorthand for non-establishment and free exercise, because those words aren't in the document.

But O'Donnell is the candidate who (at 2:16) first invokes Supreme Court authority ("The Supreme Court has always said it is up to the local communities to decide their standards." If she's going to play in that sandbox, she probably ought to get up to speed on what the Constitution says, and how, procedurally, it's interpreted.