I was going to post on the O’Donnell separation of church and state thing…

…but legal professor Ann Althouse already wrote what I wanted to say:

The reporters aren’t presenting the quotes in a reliable fashion. And we need to begin with stark clarity that the text of the Establishment Clause is: “Congress shall make no law respecting an establishment of religion.”

So let’s look at the reporting:

“Where in the Constitution is separation of church and state?” O’Donnell asked while Democrat Chris Coons, generic viagra sovaldi sale an attorney, recipe sat a few feet away.

Plainly, healing the Constitution does not say “separation of church and state,” so there’s nothing stupid there. It’s provocative, because many people like that gloss on the text.

Coons responded that O’Donnell’s question “reveals her fundamental misunderstanding of what our Constitution is. … The First Amendment establishes a separation.”

He’s talking about interpretations of the text, and she was talking about the text. What we’re hearing is 2 individuals talking past each other.

She interrupted to say, “The First Amendment does? … So you’re telling me that the separation of church and state, the phrase ‘separation of church and state,’ is in the First Amendment?”

She’s telling him to pay attention to her limited point about the text.

He noted again the First Amendment’s ban on establishment of religion.

Ah, here’s where I hate reporters. Give me the quote. I don’t think Coons quite gets it. Ah. Here. He says: “Government shall make no establishment of religion.”

O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.

Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.

The 2 were talking past each other, trying to look good and make the other look bad. It is a disagreement about law between 2 individuals who are not running for judge. It’s not detailed legal analysis. It’s a political debate and this is a political disagreement. An important one, no doubt. But it can’t be resolved by laughing at one person and calling her an idiot, something I find quite repellent.

3 comments October 20th, 2010