Rick Santorum on the First Amendment

Via Huffington Post, Rick Santorum has written an essay detailing his interpretation of the First Amendment, in which he further explains his problem with JFK’s 1960 speech in which he said “I believe in an America where the separation of church and state is absolute.”

Santorum’s objection:

While the phrase “separation of church and state” doesn’t appear in the Constitution, the concept of protecting religion from the government does.

The first part of the First Amendment prohibits the federal government from establishing a state church, such as existed in England and in some of the states in 1791, and from discriminating for or against particular faiths. The founders were determined to ensure that the new national government had no jurisdiction over matters of religion, in large part to insure that each American would be free to pursue the religion of their choice without state interference. Far from reflecting hostility toward religion, our founders, rooted in their own faith convictions, knew that faith was not just an essential element, but the essence of civilization and the inspiration of culture.

Santorum says that “Kennedy took words written to protect religion from the government and used them to protect the government from religion.”

For background, here’s the First Amendment in its entirety:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

At present, we are concerned with the religion bit. “respecting an establishment of religion”. According to no less an authority than something quoted on Wikipedia this:  “‘prohibits the federal and state governments from establishing an official religion, or from favoring or disfavoring one view of religion over another.'”

Whoa! “Favoring or disfavoring one view over another” is a big step from just not establishing an official religion. And you can’t tell me that Christianity doesn’t get preferential treatment over Zoroastrianism in this country. I don’t know if I’ve ever heard of a Zoroastrian congressman, and yet there are apparently 11,000 practicing Zoroastrians in the United States. I wonder if they feel Congress grants them equal favor?

Then we come to the bit that says Congress shall not prohibit “the free exercise thereof”. Okay, then. I guess if somebody wants to form an Esoteric Order of Dagon and sacrifice people to the Deep Ones in exchange for jewelry, the Congress is powerless.

Obviously, this isn’t the case. Congress can prohibit the free exercise of religions if they determine they’re a threat to the population at large. And that could really be anything, especially since most religions seem to hold that all the other religions are a threat.

So, Santorum opposes abortion and contraception, apparently because his religious beliefs tell him to. He doesn’t want the government to fund these things. He wants Roe v. Wade overturned, because his religion tells him so. Other people feel just the opposite way on these issues. But Santorum’s religion tells him these people are wrong.

Let’s get something clear: no amount of parsing or interpreting the First Amendment will ever solve this fundamental disagreement. If there were an amendment that said:

The interpretation of meteorological conditions being necessary to the enjoyment of a walk in the park, the right of the people to disagree about the weather shall not be infringed

…it would not be of any help to us if I say it is a going to rain and you say it is going to be sunny. All it says is that we’re allowed to disagree. But eventually, we’re going to have to answer the question anyway.

Santorum’s “vibrant marketplace of religions”(?) has the same problem. Yes, we’re all allowed to have different religion, and the government isn’t allowed to ban them (except under extreme circumstances) but we still have the massive problem of determining which policies are good and which aren’t. Suppose some religion advocated something stupid, such as selling the strategic oil reserves to build a massive golden calf. At some point, the government have to say: “Your religion’s ideas are lousy. We will not listen to you.”

Santorum seems to be just sort of rambling off on a tangent in this essay, trying to avoid getting into a discussion over his actual beliefs.

P.S. Once again, I’m not a lawyer or a constitutional scholar. If anyone can explain the flaws in my reasoning, I’d love to hear them.

2 Comments

  1. Santorum profoundly misunderstands separation of church and state–a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of “We the people” (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders’ avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase “separation of church and state” does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name 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.

    To the extent that some nonetheless would like confirmation–in those very words–of the founders’ intent to separate government and religion, Madison and Jefferson supplied it. 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 were 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.”

    While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as Santorum notes, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision (“no religion shall be established by law, nor shall the equal rights of conscience be infringed”) and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. In keeping with the Amendment’s terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion–stopping just short of cutting a ribbon to open its new church.

    The Constitution, including particularly 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.

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