[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.
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William Hogeland 
I had to read this three times to make sure. But, I think I actually agree with you on this one. 🙂 The first amendment was designed to preclude the establishment of a state religion, not to prohibit religious practice. At least that’s what I can ascertain from my reading. (Some of the States (with a capital ‘s’) actually had religious requirements for a while as a prerequisite to holding office)
I see you’re a fan of leftie-rightie, goodie-badie “analysis.” Apart from revealing your apparent belief you can psychoanalyze all lefties in one fell swoop, you offered little–other than to suggest you dislike the constitutional separation of church and state.
The phrase “separation of church and state” is but a metaphor to describe the underlying principle of the First Amendment and the no-religious-test clause of the Constitution. That the phrase does not appear in the text of the Constitution assumes much importance, it seems, only to those who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered the smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to describe one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.
Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that is the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”
The First Amendment embodies the simple, just idea that each of us should be free to exercise his or her religious views without expecting that the government will endorse or promote those views and without fearing that the government will endorse or promote the religious views of others. By keeping government and religion separate, the establishment clause serves to protect the freedom of all to exercise their religion. Reasonable people may differ, of course, on how these principles should be applied in particular situations, but the principles are hardly to be doubted. Moreover, they are good, sound principles that should be nurtured and defended, not attacked. Efforts to undercut our secular government by somehow merging or infusing it with religion should be resisted by every patriot.
Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx
The problem is that separation of state and religion contradicts the free exercise of religion when small government becomes big government. If religion and state are separated than the enlargement of government into the social sphere implies that religion must vacate the social sphere in order to keep the two separate.
Religion is speech about deities. I don’t put a lot of faith in deities, but as soon as some religious speech is censored all speech referring to deities will be vulnerable to censorship.
As far as tax advantages going to support religions, that crosses the line on non-establishment for me. All so favored religions are established when any religion is excluded from this favored treatment.
Since religion can be reasonably construed as speech about deities, discussion of deities by atheists should also be favored with such tax exemptions. To do otherwise is to be biased in favor of speech supporting the existence of deities. This is also an incentivized establishment of religion.