Thursday, October 21, 2010

Would You Rephrase That?

In a recent debate, Christine O'Donnell caused a stir (and a little laughter) when she questioned the separation of church and state as Constitutional doctrine. Though it's a well-established concept in American law, and the idea has a lengthy pedigree, many citizens, especially religious conservatives, think it's a mistaken interpretation.

I'm not clear what they want, then.  The First Amendment is pretty definitive on not establishing a religion and allowing basic religious liberty. (I recognize there's the incorporation question, but I don't think O'Donnell is going so far as to question that.)  These words have to mean something.  Is O'Donnell implying while it can't proclaim an official religion, government can do anything else it wants in supporting religion against non-religion, or one faith against others?  If not, what are the limits?  Will we have a willy-nilly interpretation, where if it feels right, it's okay?

O'Donnell seemed to be insisting that since the words "separation of church and state" aren't in the First Amendment, this is a strong argument for her side.  But while there are no concepts more central to the Constitution than Separation of Powers and Check and Balances, those phrases are never used, either.  Neither is Innocent Until Proven Guilty.

The basic promises of the Bill of Rights (which tend to be anti-majoritarian) have to be interpreted--legal opinions can't just reprint the text to settle every case, they have to apply it to the facts at hand.  And a separation of church and state, as Jefferson put it, seems to encapsulate the intent of the words pretty well.

PS  A number of commentators acted as if O'Donnell had just made a mistake--that she didn't know separation of church and state comes from the First Amendment.  She knows it, she just doesn't like it.


Anonymous Anonymous said...

"A number of commentators acted as if O'Donnell had just made a mistake--that she didn't know separation of church and state comes from the First Amendment."

You know if they keep piling on Christine, she's going to get a sympathy vote. Dumb is the new smart.

11:35 AM, October 21, 2010  
Anonymous Lawrence King said...

Though it's a well-established concept in American law, and the idea has a lengthy pedigree, many citizens, especially religious conservatives, think it's a mistaken interpretation. I'm not sure what they want....

Christine O'Donnell is a lousy spokesman. She seems to have picked up talking points from various conservatives, but can't articulate them well. I don't fully qualify as a "religious conservative", but I have read enough from them to present a summary of "what they want":

1. First, the semantic point: A heck of a lot of people seem to believe that the phrase "separation of church and state" is in the Constitution. O'Donnell's comments in her debate included questionable assertions, but the laughter -- from law students, no less -- erupted the moment she challenged her opponent about whether "separation of church and state" appears in the first amendment. Can you really argue that 100% of these law students knew that the phrasing in question does not appear in the amendment, and found it funny because they know it's part of a longstanding interpretation? I suspect some of them think it's actually there.

2. The federalist point: Until the 14th Amendment was held to apply the Bill of Rights to the states -- which wasn't until the 1890s -- there was no federal restriction on what states could do with regard to religion. When the Constitution was ratified, many states had established Churches (which, in practice, meant nothing more than a fraction of tax money going to that church). Most of them were disestablished in the 1790s, but Connecticut's church establishment lasted until 1818.

2:52 PM, October 21, 2010  
Anonymous Lawrence King said...

3. The biggest point: What does "establishment" mean? "Congress shall make no law respecting an establishment of religion". Even if we take that clause to include all agents of the Federal government, and state governments as well, everything hinges on what "establish" means.

That isn't a random word. It was the word used in England, Scotland, Ireland, and all thirteen colonies to indicate a very specific status given to a preferred religion, from the 1530s up to the time of the Bill of Rights. An "established church" received tax money from every taxpayer. Members of that church were given certain preferences for jobs in government, military, and public education. The right to vote was denied to non-members, or at least to members of especially disfavored churches.

The writers of the Bill of Rights have told you that in Georgia, the Church of England was established; in Massachusetts, the Congregational Church, and in Rhode Island, there was no established church. So it is reasonable to take the colonies with "no established church" as a clue to what it means to have no established religion in the first amendment.

And what do we find in such colonies? Religious symbols on flags and public buildings. Oaths in court taken on a Bible. Recitation of the Christian "Lord's Prayer" at public events and in schools. Using the Bible to teach history and morals in schools. "In God We Trust" and similar pieties all over the public square. Military chaplains whose salaries are paid by tax money. Laws restricting certain kinds of speech considered blasphemy.

All the items in the preceding paragraph were considered permitted under the first amendment for the first 150 years after the Bill of Rights was passed. None of these items qualify as an "establishment" of a state religion, and none of them prevent individuals from the free exercise of whatever religion they choose. But since the first amendment has come to be understood as mandating a separation of church and state, all the items in the previous paragraph have either been banned, or face serious challenges from groups such as the ACLU.

That's the difference between "no establishment" and "separation". I myself think some of the items in that list are good and some are bad. But whichever you prefer, there's a sizeable distance between the two.

2:53 PM, October 21, 2010  
Blogger LAGuy said...

The history of the legal interpretation of the Bill of Rights is complex. Much doctrine is relatively modern, coming to us in the past century. There are reasons for this that people can accept or reject, but it's a weak argument that says because the Court didn't realize something from the beginning it can't be the proper interpretation, and any seeming innovation must go against the original design of the Constitution. There's no question that attitudes in the 18th and 19th (and let's throw in the 20th) century could be very different from today's, sometimes horrifyingly so. So many will point to different practices from the past to show the law was understood differently from today. This is the beginning of an argument, but not, as some seem to think, the end.

8:34 PM, October 21, 2010  
Anonymous Denver Guy said...

While it is true that a new application of long-standing constitutional interpretations may require a revisioning of those interpretations, I think it is wrong to assume that changing attitudes can wholly reverse prior interpretations, unless the Court is prepared to declare the earlier interpretation incorrect even judged by the attitudes of an earlier generation.

I'm certainly no expert on estblishment clause jurisprudence, but if the authors of the 1st Amendment so it as proper to have Congress opened every session by the recital of a prayer, I believe that is nearly irrefutable evidence that such action is not a violation of the 1st Amendment. I don't know if there is a court case adjudicating that particular "participation" in religion, but if there is, I think it must be upheld unless the S.Ct decided it was wrong when originally decided, not just today because of changed attitudes.

I've heard an excellent commentary by Law Professor Richard Epstein explaining why the Dred Scott decision was not just an artifact of attitudes of the time - it was wrongly decided in its own time. I would have less problem with the S.Ct deciding that "under God" in the Pledge of Allegiance is a violation of the establishment clause, because that phrase was only added to the Pledge in the 1950s. Personally, I don't believe it is an "establishment" of religion, but I can see the argument. And if it is an establishment of religion, it was wrong in the 1950s as much as it is wrong today.

9:21 AM, October 22, 2010  
Blogger LAGuy said...

Past practices can be useful guidelines, but I don't know if they're definitive in deciding what law means today. There are principles in the Constitution which have a high degree of abstraction, and I would expect many of the Founders understood the meaning of such precepts would have to be interpreted through the generations. (As it is, the Constitution was a compromise that had as many interpretations as signers.)

In the past, certain practices were calmly accepted that we find repugnant today. Say, something like the idea that nature has determined that women can't be lawyers. Or that Catholicism is a scourge that must be fought. Now you can say if attitudes change, people should change laws. Yes, they should, but that doesn't mean it's the only thing to be done. If the general law on the issue isn't clear to begin with, shouldn't changing attitudes matter?

And what if you do pass a law, or even a Constitutional amendment, seemingly on point--let's say the Reconstruction Amendments that make blacks full and equal citizens--does that settle the issue? Even after they were passed, there were still open forms of racial discrimination allowed. Should people dealing with the issue in the 1950s have said "that the citizens who passed those laws thought 'separate but equal' was acceptable is irrefutable proof it's okay today"?

As to Dred Scott, probably best not to bring it up. The case is universally reviled today, so everyone, no matter what their political stripe, has an after-the-fact justification to explain how their philosophy could never had led to such a thing.

10:00 AM, October 22, 2010  
Anonymous Anonymous said...

Here's some interesting notions from Jim Lindgren at The Volokh Conspiracy:

6. The phrase “Separation of Church and State,” as Philip Hamburger establishes in his classic book on the subject, is not in the language of the first amendment, was not favored by any influential framer at the time of the first amendment, and was not its purpose.

7. The first mainstream figures to favor separation after the first amendment was adopted were Jefferson supporters in the 1800 election, who were trying to silence Northern clergy critical of the immoral Jeffersonian slaveholders in the South.

8. After the Civil War, liberal Republicans proposed a constitutional amendment to add separation of church and state to the US Constitution by amendment, since it was not already there. After that effort failed, influential people began arguing that it was (magically) in the first amendment.

9. In the last part of the 19th century and the first half of the 20th century, nativists (including the KKK) popularized separation as an American constitutional principle, eventually leading to a near consensus supporting some form of separation.

10. Separation was a crucial part of the KKK’s jurisprudential agenda. It was included in the Klansman’s Creed (or was it the Klansman’s Kreed?). Before he joined the Court, Justice Black was head of new members for the largest Klan cell in the South. New members of the KKK had to pledge their allegiance to the “eternal separation of Church and State.” In 1947, Black was the author of Everson, the first Supreme Court case to hold that the first amendment’s establishment clause requires separation of church & state. The suit in Everson was brought by an organization that at various times had ties to the KKK.

11. Until this term, the justices were moving away from the separation metaphor, often failing to mention it except in the titles of cited law review articles, but in the last term of the Court they fell back to using it again.

12. As Judge Roberts pithily pointed out in the hearings, only one justice (Breyer) thought that both of the leading establishment clause cases delivered this last term were correctly decided.

1:22 PM, October 22, 2010  
Anonymous Anonymous said...

Is observation no. 12 interesting in that there are actually varied interpretations, or was it rather that it was mostly a slight variation on the familiar 5-4 split?

4:00 PM, October 23, 2010  
Anonymous Anonymous said...

It's got to be the 5-4 split.

4:33 PM, October 23, 2010  

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