The First Amendment and Liberal Prejudice against Religion

[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. Continue reading

Obama confuses me regarding the history of “judicial activism”

Talking to reporters on Air Force One yesterday, President Obama pointed out, no doubt rightly, that conservative federal judges have been engaging in their own brand of activism. I heard the soundbite on “Morning Edition,” and here it is in print, from CBS:

In the ’60s and ’70s, the feeling was, is that liberals were guilty of that kind of approach [i.e., imposing judicial solutions to problems more properly addressed by legislatures]. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.

Once again I’m clueless about what the President may really think about a historical subject that he has made a point of bringing up. Continue reading

John Yoo and the Whiskey Rebellion

I was interested to see John Yoo citing my book The Whiskey Rebellion in his recent Crisis and CommandAuthor of the notorious Bush-administration “torture memo,” and now a law professor at Berkeley, Yoo is using his book to defend Bush’s ruthless efforts to expand executive-branch power. Seeking precedent in earlier expansions, under conditions of national threat that Yoo takes to be similar to those posed by Islamic terrorism, he looks specifically to Jefferson, Jackson, Lincoln, FDR, and, of course, Washington.

Which brings him to The Whiskey Rebellion. Continue reading