Name That FreedomBy JOHN SCHWARTZ
Published: October 23, 2010
So now we know that Christine O’Donnell, the Republican candidate for senator in Delaware, isn’t a constitutional scholar.
O’Donnell Questions Church-State Separation (October 19, 2010)
On Tuesday, during a debate, Ms. O’Donnell asked her opponent, Chris Coons, “Where in the Constitution is the separation of church and state?” The question drew gasps and laughter from the law school audience.
When Mr. Coons pointed out that the first words of the First Amendment, “Congress shall make no law respecting an establishment of religion,” are the foundation of the concept, she replied, “You’re telling me that’s in the First Amendment?”
She was, she later said, attempting to point out that the actual words “separation of church and state” do not appear in the text of the Constitution. This is true in the strictest sense, and has become a popular argument among religious conservatives who believe that courts have gone too far.
Still, the moment has been held up as a flub of the first order.
Yet in her comments, Ms. O’Donnell may have been, to an extent, fulfilling a catchphrase from one of her campaign ads: “I’m you.” Because Americans really don’t know a lot about the founding documents of our republic. Later in the debate, Mr. Coons himself could not recite the five main freedoms protected by the First Amendment.
How much do we need to know? Clearly, many of us are lacking even the basics. The First Amendment Center at Vanderbilt University has looked at Americans’ familiarity with its eponymous portion of the Bill of Rights, and the results would make Thomas Jefferson weep. While 61 percent of those surveyed this year knew that the First Amendment protects freedom of speech, just 23 percent volunteered that it also supports freedom of religion, and 18 percent cited freedom of the press. Freedom of association? Fourteen percent. Only 6 percent of those polled could cite the right to petition the government for grievances, the fifth major freedom guaranteed under the First Amendment.
The Delaware candidates are not alone: Sarah Palin and others also seem a bit in the dark about the First Amendment. Ms. Palin has seen violations of the Constitution in the hubbub over remarks about Muslims by the commentator Juan Williams, whose contract was terminated by NPR. But the First Amendment restricts the ability only of government to censor, not of private employers.
Still, the Delaware controversy, at least, does not mean that each of us must become a scholar who memorizes every jot and tittle, argued the libertarian conservative Eugene Volokh, a constitutional scholar at the University of California, Los Angeles, school of law.
“I would care if people didn’t realize that the Constitution protects freedom of the press, or that the Constitution protects against unreasonable searches and seizures,” he said. “But I don’t care whether they know if it’s in the First and Fourth Amendment as opposed to, say, the Sixth and Eighth Amendments. What’s still important is to know what they are, rather than where they happen to be in the particular numbering system of the Constitution.”
As for Ms. O’Donnell, he said, “I don’t think she acquitted herself terribly well there,” since whatever she might actually know, she did not leave the impression that she was conversant in basic constitutional concepts.
Jack Balkin, a liberal constitutional expert at Yale Law School, said he was pleased to see Ms. O’Donnell and Mr. Coons actually discuss the nation’s founding texts. “I’m on Christine O’Donnell’s side in terms of constitutional literacy,” he said, wryly. “If her remarks in the debate cause Americans to pull out a copy of the Constitution and read it, that’s all for the good.”
Though they lived two centuries before the Internet, the founders knew that they were creating the first information-based nation, a new kind of republic powered by ideas and argument. To give the people who would vote for their leaders the tools to vote wisely, ideas and debate, conscience and faith had to be protected. And it all happens in the First Amendment.
On the question of church-state separation, at least, a majority of Americans do seem to get the gist: The First Amendment Center poll showed that 66 percent of Americans agree with the statement that the First Amendment requires it, wherever the concept may be found. Oddly enough, however, the poll also showed that 53 percent of Americans agree with this statement: the Constitution “establishes a Christian nation.”
Hmm. This is the sort of thing that leads the nation’s constitutional scholars to cite a venerable jurisprudential doctrine: go figure.
Gene Policinski, the executive director of the First Amendment Center, said he puzzled over the apparent conflict between those two poll questions, but recalled an elderly woman who once chastised him for saying that the United States was not a Christian nation.
It most certainly is, she said, though the Constitution allows anyone to choose other faiths. “Young man, of course those people have every right to be wrong,” she explained.