I see that my co-blogger MJ Andrew has already posted about the Christine O’Donnell-Chris Coons debate, and I thank him as that saves me the trouble of having to sort through a whole bunch of links.
I disagree with him, though somewhat reservedly. Having listened to the entire clip it does seem to me that O’Donnell is questioning whether the concept of the separation of Church and State is in the First Amendment, not the Establishment Clause. There was some crosstalk at this point in the debate, and it appears to me that she’s just repeating her question with regards to the issue of separation. It’s debatable, though, and a candidate should do a better job clearly establishing what she’s talking about in such a setting.
That being the case, I was more intrigued by Coons’s own response to the question. While O’Donnell possibly made a gaffe – an unfortunate one if indeed it was a gaffe – Coons’s response is the more troubling aspect of this exchange.
First of all, Coons’s answer that the Establishment Clause justifies the notion of “separation of Church and State” has no basis in constitutional law. The fact that the phrase itself is not in the Constitution does not in and of itself prove that the concept is un- or a-Constitutional. After all, the Constitution itself does not speak of “checks and balances” or “separation of powers,” but the concepts themselves are clearly enshrined by other clauses. But there is nothing in the language of the First Amendment, or in the history of its passage, to suggest that the Framers intended to promote the concept of separation of Church and State.
The phrase itself dates not to any Framer, but rather to Thomas Jefferson. It comes from a letter to the Danbury Baptists written by President Jefferson in 1802. While Jefferson was certainly an influential thinker of his time, it’s worth keeping in mind that not only was Jefferson not a participant in either the framing of the Constitution or in the debates over the Bill of Rights, but he wasn’t even in the country. Now this doesn’t automatically mean that he is wrong, but it does suggest that his words should carry no additional weight.
It wasn’t until a 1947 Supreme Court decision that the phrase garnered judicial significance. The case was Everson v. Board of Education. I’m not going to get into the details (available here), but it is in this case that Justice Hugo Black cited Jefferson’s language. Henceforward the concept of separation of Church and State was, for all intents and purposes, enshrined by the Court has having legitimate constitutional significance. Nevermind that it is not in the actual written Constitution. Our First Amendment religious jurisprudence has been dominated by a phrase written by a letter 15 years after passage of the Constitution and 12 years after passage of the First Amendment, and by someone who did not participate in either proceeding. This seems, if nothing else, a rather dubious source to rely upon.
So when Coons cites the Establishment Clause in response to O’Donnell’s query about where the Constitution establishes separation of Church and State, he displays his own profound constitutional ignorance.
It would be bad enough if he stopped there, but he continued, and in doing so demonstrated the sort of leftist view of constitutional interpretation that is incredibly dangerous. He cites decades of Court decisions as further “proof.” But Court decisions can be wrong. Contrary to what Charles Evans Hughes once asserted, the Constitution is not what the Judges say it is. The Constitution is what the words of the document itself say it is.
We can certainly look to the Courts for guidance on possible interpretation, but that doesn’t appear to be what Coons is advocating. In essence we’re to completely give over constitutional interpretation wholesale to the Courts. If the Judges say there is a constitutional right to abortion on demand – while by golly, then there is a constitutional right to an abortion. Curious. Last I checked the Constitution could be amended only by supermajorities in Congress and then the states. In reality it would appear that Coons is comfortable with amendment by five Supreme Court Justices. I for one am not entirely comfortable with that much power being placed in so few hands.
Lest I be accused of erecting a strawman, please listen to the audio after about the 6:15 mark in the video at Michael’s post. It is around this juncture that Coons says:
In the Griswold question earlier, the zone of privacy is something that the Supreme Court interpreted the bill of rights and several of those amendments to create. It is important for us in modern times to apply the constitution and in my view as it exists today, and interpreted by our justices
Emphasis mine. So we have Chris Coons clearly stating that we have to interpret the Constitution in light of modern views and judicial interpretation. This mode of thinking grants extraordinary power to the Supreme Court. Again, you are essentially allowing the Courts to amend the Constitution by fiat.
Christine O’Donnell may have made a flub. Chris Coons thinks the Constitution is what the Courts say it is. The former may be a bit ditsy, but the latter presents a threat to our constitutional rights.