Tuesday, October 19, 2010

Rubin and Wehner on Thin Ice Between Establishment and Separation

Jennifer Rubin (one of my favorite commentators) seems to be confused about the difference between "separation" and no-"establishment". She links to Peter Wehner's comments.

Wehner correctly says that the First Amendment prohibits the "establishment of religion", but does not seem to understand the difference between "separation of church and state" and "no . . . establishment of religion". On the basis of a press report (heh) Wehner thinks Christine O'Donnell doesn't know that freedom from government control of religion is in the First Amendment.
“The First Amendment does?” O’Donnell asked. “Let me just clarify: You’re telling me that the separation of church and state is found in the First Amendment?”

“Congress shall make no law respecting an establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution.

“That’s in the First Amendment…?” O’Donnell responded.
After looking at a 5 minute youtube video, it's clear that O'Donnell is mocking Coons' view that "separation of church and state" is in the Constitution. Three times she asks whether Coons thinks "separation of church and state" is in the Constitution. Never once does she refer to the no establishment clause.

Of course, "separation of church and state" isn't in the Constitution or the First Amendment. It is a theoretical construct used in political and judicial argument to try to spin out the meaning of the no establishment clause.

What's funny is that some of the people who loudly trumpet "separation of church and state" don't seem to understand that it's primarily a religious doctrine--held, for example, by Baptists in contrast to Catholics, Anglicans, Lutherans (and Muslims) who think that state power is also a ministry of God legitimately used to support and defend the church. Separation of church and state got traction in western thought because people like the Anabaptists, Baptists, and Quakers were willing to suffer severe persecution to make the point that true religion cannot be compelled (which is what state action does) and that a church which relies on force is a corrupted church.

In fact the famous Jefferson quotation about the "wall of separation" comes not in response to a political debate on the Constitution or Bill of Rights (ratified in 1788 and 1791 respectively), but a decade later answer to an 1801 letter from Baptists in Danbury, Connecticut, who were suffering government persecution* because they were not part of the Congregational church (which was the established church in Connecticut until 1818). Jefferson based his argument for separation on "natural rights"** (called unalienable rights in the Declaration of Independence) granted by God, the Creator. As such, it is a religious doctrine, but its inclusion in the Declaration and in the First Amendment (if one believes Jefferson) does not rise to an "establishment of religion".
*Danbury Baptists: "Our Sentiments are uniformly on the side of Religious Liberty -- That Religion is at all times and places a matter between God and individuals -- That no man ought to suffer in name, person, or effects on account of his religious Opinions - That the legitimate Power of civil government extends no further than to punish the man who works ill to his neighbor: But Sir our constitution of government is not specific. Our ancient charter together with the Laws made coincident therewith, were adopted on the Basis of our government, at the time of our revolution; and such had been our Laws & usages, and such still are; that Religion is considered as the first object of Legislation; and therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen."
[emphasis added]

**Jefferson: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all of his natural rights, convinced he has no natural right in opposition to his social duties."
[emphasis added]


OregonGuy said...

This is what the great dissenters, like Scharansky and Solzhenitsyn were trying to express to the leaders of the Communist Party; you cannot compel a man to deny the truth a man finds on his own.

The predecessors of Jefferson are our very own Pilgrims. It is important to teach why the Pilgrims came to the New World. Not to exploit the Red Man, but to find a place where government wouldn't intrude upon the private practice of worshipping in a manner that befitted the worshipper.

New texts seem to overlook the basics of why America is different, hoping to instead inveigle the young kids to see America as a constant stream of imperialist intent and action.

It is, of course, history upside-down.

T. D. said...

Thanks, OG, for your penetrating addition to this issue.

You are exactly right.