James Madison Says Christine O’Donnell is Wrong About the First Amendment

In a debate at the Widener University School of Law in Wilmington, Delaware on Tuesday, October 19th, Republican Senate Candidate from Delaware Christine O’Donnell questioned whether the Establishment Clause of the First Amendment of the United States Constitution in fact provides for the “separation of church and state.” In trying to be cute and score political points with the religious right, O’Donnell repeatedly asked her opponent, Chris Coons, “That’s in the First Amendment?”

The exact words “separation of church and state” do not in fact appear in the Constitution, but rather come from a letter Founding Father Thomas Jefferson wrote to the Baptists of Danbury, Connecticut in 1802, in which he wrote, that there should be a “wall of separation between church and state.”

What the Establishment Clause does say is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” The contention of Ms. O’Donnell and those that agree with her is that the Establishment Clause does not in fact provide for “separation of church and state.” I find this argument when coming from people who call themselves “Originalists” and claim to believe that we should only pay attention to the intention of the words written by the Founding Fathers to be horribly disingenuous at best. Of late, I have come to view it in an even less favorable light; the claims of these “Originalists” are outright hypocritical, which I will go into a bit later.

Providing a slightly clearer picture of why the “Originalists” feel as they do is important for the greater context of this particular debate. Most of their arguments hinge on their belief that the application of the Establishment Clause to state governments brought about by several U.S. Supreme Court decisions of the 20th century is overreaching on the part of the court. They argue that individual states should not be subject to the First Amendment’s charge to the federal government and should instead be allowed to make these decisions for themselves. Unfortunately, this conflicts with the idea of the “unalienable” rights provided to citizens by the Constitution and the Bill of Rights (of which the 1st Amendment is a part). If individual states could institute “state” religions, the rights of citizens in those states to the free exercise of religion would by definition by infringed upon.

Perhaps worse than the obvious conflict with the Bill of Rights is that the very authority to which these “Originalists” appeal disagrees with them. James Madison, the primary framer of the Constitution, makes very clear what the intent of the 1st Amendment Establishment clause is in many of his writings. As Madison wrote in a July 10th, 1822 letter to Edward Livingston, “Every new & successful example therefore of a perfect separation between ecclesiastical and civil matters, is of importance. And I have no doubt that every new example, will succeed, as every past one has done, in shewing (sic) that religion & Govt. will both exist in greater purity, the less they are mixed together.”

Further, in an 1832 to letter to the Reverend Jasper Adams, Madison wrote, “I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others.”

Such quotes clear demonstrate how highly Madison valued the concept of separation between religious matters and secular government, and they are hardly unique quotes. It is a subject his correspondences touch on again and again.

The other problem with the desire to subvert the Establishment Clause that O’Donnell and those who feel as she does fail to realize is that the purpose of the idea of “separation of church and state” is as much to protect religion as it is to protect government. In a March 2, 1819 letter to Robert Walsh, Madison wrote “The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State.”

The idea of a distinction between temporal and ecclesiastical power is an ancient one, going back at least to the Medieval period in which secular lords struggled with the priesthood over where power should rest. Certainly Madison and the other founding fathers were conscious of this historical context. As Madison wrote in an 1820 memo, “Strongly guarded as is the separation between religion and & Gov’t in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.”

O’Donnell’s smug attempt to catch her opponent in a mistake revealed her own ignorance of the historical context of the Establishment Clause, and she and those who think like her would do well to read some history and find out what the Founding Fathers actually thought. It is unnecessary to divine the intentions of Madison and the other framers when their own words so clearly reveal how they actually felt. No attempt to twist the semantics of the language in the Constitution will change that truth. I encourage everyone to track down some of Madison’s writings and investigate these issues for themselves.

You can watch the original exchange between Coons and O’Donnell at the Fame Appeal blog. Ken Paulson of the First Amendment Center also wrote an enlightening piece for Yahoo! News that can be read here.