As conservative pundits double down to defend Christine O’Donnell’s latest, non-typo related gaffe — misremembering the content of the First Amendment, which other conservatives admit was a mistake — let’s take the time to remember just how silly it is to say that separation of church and state is “not in the Constitution.”
That’s technically true, in that the exact phrase in as many words does not appear in the document. Rather, it originates in a letter dated New Year’s Day, 1802, to the Danbury Baptists. Original drafts of the letter were much more radical, but in the final text, Jefferson appropriates a phrase used by a 17th-century Baptist theologian, and drafts it into the service of the First Amendment. Although modern radicals have quite happily thrown Jefferson under the bus, he was more than the third President: he was the author of the Declaration of Independence, and a part-author of the Constitution. Such persons are entitled to announce authoritative constructions of their work, especially when their construction is buttressed by a strong historical narrative, and text that Christine O’Donnell has apparently forgotten. How do you read the phrase,
Congress shall make no law respecting an establishment of religion . . .
Except as one rejecting the idea that the work of governing shall belong to one faith tradition?
Note, too, that very few constitutional norms were defined by the founding generation in the exact terms of art that we’ve come to know. The document makes no explicit reference to “states’ rights,” and the tautological Tenth Amendment seems only to emphasize that states can do everything not belonging in the amorphous category of work appropriated to the federal government. Context clarifies that that would be a small residue: the Constitution, after all, revoked the Articles of Confederation. And, despite bipartisan consensus (remember Sarah Palin?):
There’s no real constitutional guarantee of privacy, either. At least, not in as many words.
We must accept the obvious premise that fidelity to the Constitution lies not in searching eighteenth-century words for twentieth-century phraseologies, but in actually understanding the history and context of the document. Searching for X, Y, or Z in the document’s text is an exercise that, more often than not, will prove futile. We must insist on this premise, or see the progress of the Founders, ratified by two hundred years of progressive history, sucked into a black hole of faux-textual regressivism.