O’Donnell and the First Amendment


David Post writes at The Volokh Conspiracy berating Christine O’Donnell for her poor understanding of the constitution. He has this absurd piece in the middle:

It was not, alas, just a momentary gaffe — O’Donnell made it clear, later on, that she had never read the First Amendment to the Constitution.

Now, even I consider this grossly unfair. And that’s what we’re talking about here.

To summarize:

  • Coons said that we shouldn’t allow local schools to choose their curriculum if the curriculum includes something he considers religious.
  • O’Donnell shot back that that’s imposing your will on the people without constitutional authority.
  • Coons retorted that this is the “separation of church and state” that’s in the constitution.
  • O’Donnell asked where the phrase “separation of church and state” is in the constitution. (The crowd of law students and lawyers and judges laugh at this point.)
  • Coons points out it’s in the First Amendment, which says “Government shall not establish religion.”
  • O’Donnell is puzzled and confused where he found this phrase in the First Amendment. (The audience gasps.)

In the comments at The Volokh Conspiracy, known for their civility and intelligent remarks (and I’m not being sarcastic here), the author of the piece is excoriated for his one-sided views about the First Amendment and Christine O’Donnell.

First. Christine O’Donnell was never wrong about anything. Coons was wrong about everything.

Under the First Amendment, religion is taught in our schools even today. Yes, the courts have done mental backflips to keep prayer out of school and to throw people in jail who dare utter the G-word or say the P-word in school, but that is quite unjust and a modern, incorrect interpretation of the First Amendment. In times past, every public school had daily prayer and scripture reading, religious ideals, particularly Christian ones, were freely taught, and that was the way the authors of the First Amendment intended it.

See, the First Amendment says “Congress shall make no law respecting and establishment of religion, or prohibiting the free exercise thereof.” That means, simply, that Congress can neither forbid nor mandate that an establishment of religion (a “church”, in our modern language), nor can they give respect to one or hindrance to another. That means it is up to the local schools to decide what religion, if any, is taught in their walls. The Courts have long ago taken on the role of Congress, writing laws where there is none and repealing laws when they felt it necessary, so this limitation would naturally apply to the courts, and for completeness, the administration as well, since neither can do anything without Congress’s laws.

I know this isn’t what you expected, if you’re one of those church-state separationists or the public atheist. But that’s what our Founding Fathers intended and that’s what they wrote.


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