Friday, October 22, 2010

O'Donnell, the First Amendment, and Constitutional Literalism

I think Christine O'Donnell is getting a bad rap.

I can't believe I'm starting a post with those words, but it's true.  Based on her comments in a recent debate with Chris Coons, her opponent in the general election for U.S. senator from Delaware, many reports and commentators suggested that O'Donnell was unaware that the First Amendment to the U.S. Constitution deals with religion.  When Coons referred to separation of church and state, O'Donnell asked “Where in the Constitution is separation of church and state?”

From listening to the exchange, it was immediately clear to me that O'Donnell was referring specifically to that phrase, not doubting that the First Amendment refers to religion.  This is a familiar refrain among conservatives who are opposed to that concept.  And, of course, O'Donnell is correct that that phrase does not appear in the Constitution.  Nor did Coons suggest that it does--he appropriately cited the establishment clause as it is written.

So what's going on here?  I think it is a matter of constitutional literalism. Since the precise words "separation of church and state" do not appear in the Constitution, constitutional literalists argue that there isn't really any such thing.

This mindset has a long pedigree, almost as old as the Constitution itself.  Its first coherent statement is Thomas Jefferson's "Opinion on the Constitutionality of a National Bank" in 1791.  (Ironically, Jefferson is on the opposite side of the church and state argument.)  Relying, as do today's Tea Partiers, on the Tenth Amendment, Jefferson maintained that unless a power were specifically delegated to the Federal government, it remained with the states.  He feared that anything but a strict interpretation of the Constitution would mean "Congress should be authorised to break down the most ancient and fundamental laws of the several States."

(This is the same basic view informing Republican attorneys general in their challenge to the new health insurance law: that the individual mandate is an unconstitutional usurpation of rights by the Federal government.)

The problem with such constitutional literalism is that Jefferson lost that argument with Alexander Hamilton back in 1791.  George Washington sided with Hamilton, Congress approved the national bank, and thereby established the practice of loose rather than strict construction of the Constitution.  When he later served as president, Jefferson himself sometimes invoked loose construction, most famously to justify the Louisiana Purchase.

It is that point that O'Donnell fails to understand: that the actual practice of governance has shaped what the Constitution means.  Coons, to his credit, did understand this and tried to explain it.  He knew that the phrase "separation of church and state" is not in the First Amendment, and noted that the concept has become part of our understanding of the application of the First Amendment via "decisional law by the Supreme Court over many, many decades."  He was correct that her focus on that single phrase showed a "fundamental misunderstanding of what our Constitution is ... and how it evolves."

In a 1947 case, Everson v. Board of Education, the Supreme Court's majority decision embraced the concept: "The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach."

If O'Donnell had any real understanding of the issue, anything beyond her smug, self-satisfied recitation of a talking point, she could have challenged the Court's reasoning in that decision.  But she has no such understanding. When asked in another debate what recent Court decisions she disagrees with, she could not mention a single one.  She promised to look some up and put them on her web site.

That is the real problem with O'Donnell's debate performance--not a specific case of ignorance of a well-known fact, but rather a incredibly simplistic understanding of the document that she says she will defend in office and have guide her every decision.  Like Sarah Palin before her (who was stumped by the same question about Court decisions in the Katie Couric interview), she is a profoundly unserious person.  And that, even in this strange election year, is a legitimate reason to deem her unqualified to hold public office.

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