In battling the right-wing argument that the framers of the Constitution never intended to separate church and state because the precise phrase “separation of church and state” does not appear anywhere in the document, many opponents of religious entanglement with government acquit themselves poorly for two reasons. First, some–especially those whose identity is primarily invested in politics rather than secular values–are almost as fuzzy about the Constitution as the knowledge-challenged religious right. Second, too many advocates of secular government implicitly accept the idea that the framers intended the Constitution to be seen as a wordy straitjacket rather than a modifiable blueprint, subject to judicial interpretation, for a long-lasting form of government. I won’t use the expression “written in stone” because, as everyone familiar with the Bible knows, stone tablets can be broken. Then you have to trudge back up Mt. Sinai again to acquire another set of laws graven in stone but no less subject to human brekage.
As exhbit A for the shaky constitutional knowledge of many on the pro-separation side in public life, I present Chris Cooms, who left Christine O’Donnell with egg on her face in last week’s Delaware senatorial debate for not knowing about the First Amendment’s establishment clause. But later in the debate, Cooms himself could not name the five essential freedoms enumerated in the magnificent amendment that opens the Bill of Rights.
For the record: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of people peaceably to assemble, and to petition the Government for a redress of grievances. I find it shocking –not surprising, just shocking –that any candidate for federal office cannot cite these basic First Amendment rights and cite them with conviction and understanding. No doubt Cooms believes in all of these freedoms, but it’s always better to be able to articulate the source of and rationale for your ideas than to blather on, as the Tea Partiers do, about the Constitution without knowing what it actually says, much less what it means.
No, the First Amendment does not say “peacably assemble in front of national monuments and in public spaces”–any more than it says, “separation of church and state.” It is up to the federal courts to interpret the Bill of Rights, and the entire Constitution, in light of changing circumstances and contemporary standards. Is it peacably assembling if you block traffic on a superhighway, which of course did not exist in 1787? Or if you gather on a streetcorner to insult relatives holding a funeral for their son who died in military action? Up to the courts.
Similarly, the founders probably never imagined a future America that included millions of practicing Hindus, Muslims, Buddhists, Pagans, and people who reject religion altogether. They crafted the Constitution at a time when there were only Christians, of various denominations, and a tiny minority of Jews. That is what makes it all the more remarkable that Christianity received no pride of place, and no mention at all, in the Constitution–at a time when most of the states still had laws requiring that office-holders be Christians (and often Protest Christians). Article VI, section 3 states flatly that “no religious test shall ever be required as Qualification to any office of public Trust under the United States.” This provision–every bit as powerful as the First Amendment–is mystifyingly absent from much of the uninformed debate about separation of church and state.
Nat Hentoff, a long-time First Amendment warrior, recalls an appearance on a panel at Pat Robertson’s Regent College in a recent column published by the Council for Secular Humanism. “The question was,” he writes, “‘Is this a Christian nation?’ Before we went on, previous speakers agreed, in a celebratory chorus, that this is clearly a historical fact. When my turn came, I suggested the audience look more closely at the fact that God is absent from the Constitution…Amid the hostile stirrings in the audience, I also told them to check out Article VI, Section 3…For the rest of the day, I was a pariah in the room.”
The proof that this is not an officially Christian nation with a Christian government lies in the very fact that backward-looking Protestant ministers, throughout the 19th century, always recognized that if God and Jesus were to be cited as authorities for American governmental power, the Constitution would have to be formally amended. This argument should be made openly and forcefully in poltiical debates–not confined to the pages of secular journals.
I would also, if I had been a senator asked to confirm Clarence Thomas, Antonin Scalia, John Roberts or Samuel Alito, have openly taken on the absurdity of the “originalist” argument that the Constitution can only be intepreted by trying to channel what was in the minds of the men who wrote it. In a 2002 address at the University of Chicago Divinity School Scalia applies this argument to the death penalty. The death penalty does not volate the Eighth Amendment’s prohibition of cruel and unusual punishment, he writes, because it was not considered cruel and unusual when the Constitution was written. To Scalia, the Constitution is “not living but dead–or as I prefer to put it, enduring. It means today not what current society (much less the Court) thinks it ought to mean, but what it meant when it was adopted.” If this line of thought is followed to its ridiculous conclusion, courts should be free to hand down death sentences for grand theft auto because horse thieving was a capital crime in the 18th century.
The framers might, instead of using the broad and modifiable “cruel and unusual” standard, have prohibited disembowelment and drawing-and-quartering as a mode of execution, because civilized sentiment was turning away from the time-honored practice of subjecting the condemned to maximum, extended pain before the coup de grace. But they didn’t do that, because they had seen standards of what is “cruel and unusual” changing within their own lifetime. In the past decade (Scalia dissenting, of course), the Supreme Court has prohbiited the execution of minors and of those with the mental capacity of chidlren. In the 21st century, the Court majority has decided, we consider it “cruel and unusual” for the state to excecute those who do not have the intellectual capacity to understand the consequences of their actions.
Too often, those who support the separation of church and state, and civil liberties in general, concede the validity of “originalism” and claim only that their interpretation of the Constitution is more original, more faithful to the intent of the founders, than the views of people like Scalia. This “I’m in closer touch with the minds of Geroge Washington, John Adams, Benjamin Franklin and John Adams than you are” argument is irrelevant. I strongly recommend that candidates like Cooms, and every member of Congress who cares about the Constitution as something more than a symbolic bludgeon, read Justice Stephen Bryer’s, Making Democracy Work: A Judge’s View, which presents a lucid and cogent argument against the originalist idolatry espoused by the right.
“You can think of this document laying down certain frontiers or borders,” Breyer said in a recent interview, “and we’re (judges) the border patrol…Life on the border is somethimes tough. And whether a particular matter–abortion or gerrymandering, or some other matter [such as] school prayer–whether that’s inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question.”
It’s not about what Thomas Jefferson, Washington, Adams, Madison or Franlin thought in 1787 (and their thoughts diverged sharply on numerous issues). It’s about the vision they had of a diffent kind of nation–one which, with regard to relations between religion and government, would leave people alone to practice whatever faith they wished, while permitting neither one nor all religions to exercise their civil will through government. Indeed, the idea of some ur-religion that would excercise a unitary will by incorporating all religions (pace, Karen Armstrong) is even more absurd than the idea that men in 1787 could have forseen exactly what society would be like in 2021.
The Constitution is important and marvelous not because it is a dead document set in stone but because it is living. It represents what human beings, not deities, do when they are trying to forge a new reality based on the will of “We the People.”