Legal Commentary

Senator O?Donnell?

By David Post

My guess is that the Tea Party?s great victory in Delaware ? in nominating Christine O?Donnell for the Senate ? will turn out to be a rather substantial disaster for the movement. There are some serious issues that the T.P. movement is raising ? but O?Donnell?s candidacy merely feeds suspicions that the movement is fed by ignorant, know-nothing Yahooism. 

In the latest debate between O?Donnell and her rival, Chris Coons, there was this exchange (reported here):

After scolding Coons for his lack of knowledge of constitutional law for stating that intelligent design should not be taught in public schools . . . O?Donnell challenged her rival on his assertion that the U.S. Constitution creates a distinct separation between church and state.

?Where in the Constitution is separation of church and state?? O?Donnell asked. Upon hearing her words, the audience in the room burst into laughter.

It was not, alas, just a momentary gaffe ? O?Donnell made it clear, later on, that she had never read the First Amendment to the Constitution.

Later in the proceedings, . . . Coons returned the conversation to the question of the constitutionally mandated separation of church and state.

?I absolutely oppose the widespread proposals by tea party candidates for us to repeal the 14th, 16th or 17th amendments.? Coons said. ?I also think you just heard, in the answers from my opponent, and in her attempt at saying ?where is the separation of church and state in the constitution? reveals her fundamental misunderstanding of what our Constitution is, how it is amended and how it evolved. The First Amendment establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades ??

O? Donnell then interrupted. ?The First Amendment does?? she asked, skeptically.

Coons continued his explanation, and O?Donnell interrupted again. ?So you?re telling me that the separation of church and state is found in the First Amendment??

Coons went on to cite cases the Supreme Court had decided that backed up the position of a wall between church and state.

?Let me just clarify,? O?Donnell pressed. ?You?re telling me that the separation of church and state is found in the First Amendment??

?The government shall make no establishment of religion,? Coons said, summarizing the gist of the specific words in the First Amendment?s establishment clause.

?That?s in the First Amendment?? O?Donnell asked again, 

For someone ostensibly interested, as she put it, in returning this country to the ?principles of the Founders on which our country is based,? this is beyond appalling. Jefferson, among many others, is turning over in his grave. 

The video is here, if you want to see for yourself.

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The buzz on the Net about this is, predictably, scathing (as it should be); here?s my favorite, from
New York Magazine?s Daily Intel :

For someone hoping to serve in the Senate of the United States, saying ?You?re telling me that [the establishment clause is] in the First Amendment?? is like a prospective astronaut saying, ?You?re telling me we can?t breathe in space?? It?s like a heart surgeon walking into the operating room and asking, ?You?re telling me there are four chambers in the pumpy thing?? And so on.

Those of us who have for many years considered ourselves ?libertarians? recognize the problem: we have important, intellectually defensible positions on critical issues, but somehow the public face of the movement is led by people who end up sounding like Christine O?Donnell.

Full post as published by The Volokh Conspiracy on October 20, 2010 (boomark / email).