What We All Know

It is very reassuring when we can deride those who have different political views because “everybody” knows that what they are saying is wrong. Probably the most damaging political label in American political history is “Know-Nothings.” In the 19th century, the American Party became known by that name as result of a follower’s comment when asked what the party stood for.

While it saves trouble in political conversations to assume the other person doesn’t know what they’re talking about, it can be embarrassing to find out they are, in fact, at least technically correct.

This arose in the current campaign by the “tea party” Republican Candidate for the U.S. Senate seat from New Jersey. As Colby Hall writes at Mediate.com

Christine O’Donnell made some news when she questioned the separation of church and state and the U.S. Constitution, asking “where in the Constitution is the separation of church and state?” This was immediately exemplified by her political opponents as an foolish gaffe, ignoring the fact that the exact phrase does not appear anywhere in the Constitution.

But the last sentence is interesting. O’Donnell is, in fact, correct in saying that the phrase “separation of church and state” is not in the Constitution. The original Constitution speaks of religion only to bar religious tests for office. The Bill of Rights (in the First Amendment) says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …”.

So why then do we all “know” that the Constitution calls for the “separation of church and state?” It’s because there are actually two “constitutions”. One is the original guiding document and the other is the constitution we all live under.

Whenever a religion or government has an essential founding document, there is a need to interpret it and apply it to a variety of situations. Starting with Marbury v. Madison the Supreme Court asserted the authority to define the meaning of the document and direct the lower courts in how to apply it in various cases. That is the law we all live under.

Chief Justice Charles Evans Hughes’ said “the Constitution means what the Supreme Court says it means.” For most of us that is true. As the court’s decisions build up over time, they are used to create what is called “Constitutional Law.” Since the nation’s courts are bound by those interpretations, they form the “real” law which guides our lives.

The court adds phrases to help lower courts, lawyers and average citizens understand how to apply Constitutional Law in our daily lives. Some of these are “one man, one vote”, and “the right to remain silent.”

But the Court has been known to add a phrase which it later comes to regret. The most famous of these was “separate but equal.” The court added this phrase in the Plessy v. Ferguson case as it interpreted the 14th Amendment requirement that “no state shall … deny to any person within its jurisdiction the equal protection of the laws.” The impact of this was to negate the purpose of the equal protection clause.

By 1896, the Court seemed to feel the country was tired of the struggle for Negro rights and it was time to let the states impose “Jim Crow” laws as a way to “turn the volume down.” The decision was a disaster for freedom, the country and especially Blacks. But it must be emphasized this was an action of the Supreme Court, and not the President or the people’s representatives in Congress. The Court later reversed itself with the famous declaration in 1954’s Brown v. Board of Education case that ‘the doctrine of “separate but equal” has no place. Separate … facilities are inherently unequal.’

For many people, the Court’s addition of “separation of church and state” and the path of Constitutional Law since that addition have taken the country in the wrong direction. For those people, it is significant that the phrase was added by the court and is not part of the original document. These “Originalists” argue that the Court needs to review the excesses caused by the Court’s phrasing and look at whether it is appropriate to return to something closer to the original understanding.

The derisive dismissal of those who, like Christine O’Donnell, say that “separation of church and state” is not part of the Constitution trivializes a serious discussion. While it would be easier for those who like things the way they are, there is a serious debate to be had here.

Among those things fueling the “Tea Party” movement is a feeling that “those in charge” not only disregard the religious beliefs and concerns of large number of voters, but actively work to minimize the influence of religion in the lives of individuals and the country. It is frustrating when they are trying to make an argument about the appropriate role of religion in society only to be dismissed as “Know Nothings”.

Those who “know” that “separation of church and state is part of the (original) Constitution are wrong. There is nothing more infuriating than to have a serious argument cut short by derisive people who are in fact, technically speaking, wrong.