[UPDATE: This turned out to be the first in a trio of posts about misapprehensions and misappropriations of the Constitution, across the political spectrum. The second one, on the Second Amendment, is here. ]
Say “first amendment” to most people, and they’ll say “freedom of speech.” They’re right, of course, as far as it goes. But.
The failed Tea Party Senate candidate Christine O’Donnell drew some laughs a while back when she asked, she hoped rhetorically, where in the U.S. Constitution church and state are separated. Her opponent knew the answer and paraphrased the relevant part of the First Amendment aloud. Her laughing audience were law school students and faculty, so they knew the answer too.
But many otherwise well-informed people, who are sure that there is a constitutional separation of church and state, don’t know where in the Constitution to find it; or know that the First Amendment opens by disestablishing religion, and only then goes on to protect speech; or that the amendment is based on what was known during the founding period as the Virginia Statute for Religious Freedom (Jefferson, its author, listed it among his proudest accomplishments).
That ignorance raises some weird questions. One has to do with the inveterate scorn of educated liberals for the likes of O’Donnell. It’s far from clear that many who deem themselves intellectually superior to her could have responded to her challenge (it’s good that her opponent could). The challenge might seem a dopey one, but it would have left plenty of liberals sputtering. And since she is not well-educated, and those liberals generally are (in ways other than law and history), that’s bizarre and disturbing.
“These Tea Party people don’t know any history,” fume some I know, and while in some cases (like O’Donnell’s) that’s true, in others it’s not. A lot of them know American history because they just happen to like it. You could argue with their interpretations — but only if you knew something about it yourself!
I find that it’s liberals, and I mean the kind of liberals who can read Chaucer in Middle English, who really don’t know any American history.
In his “More Perfect Union” speech, President Obama, who once taught constitutional law and is held up by intellectuals as one of their own, depicted the framers of the Constitution as people who had crossed an ocean to escape tyranny (wha?). [UPDATE: And after I wrote this, the Times ran a piece saying that Constitution talks about inalienable rights and equality. No, that’s the Declaration, but whatever. More of my ranting about that.] Some who are dead certain that there’s a constitutional right to an early-term abortion, and can name the Supreme Court case that says so, don’t know what amendment Roe vs. Wade argues that right emanates from. All it would take to find out is a search engine, but “constitutional right” really just means a right we think we ought to have, and want to preempt any argument about, not rights we’re actually going to bother sourcing to the Constitution.
“That’s the First Amendment?” O’Donnell asked her opponent, sounding actually intrigued, and plenty of liberals were silently saying the same thing.
And that seems a bit problematic for any kind of useful debate about meaning, purpose, and hope for American society. Which we probably ought to start having someday.
When it comes to the First Amendment, I think there’s another issue in play. The heroic liberaloid narrative of the amendment is all about speech, publishing, the press, speaking truth to power, blah blah. (Old lefties, by contrast, condemning “bourgeois liberties,” used to call the amendment valuable only to those who own printing presses.) The importance to the framers of religious freedom, which disestablishment achieved, gets downplayed in that narrative — really, it gets left out. Since the founders led off with the religious freedom language, making it primary, I think the excising of religion from popular conceptions of the amendment, even and maybe especially among those who insist on a constitutional separation of church and state, reflects a secularist prejudice against religion.
They like a wall of separation. They just don’t want to taint the mighty, vibrant “speech” amendment with anything as quaint — even embarrassing, to the secular mind — as the actual exercise of religious freedom.