O’Donnell And A Marxist (Coons) Argue The First Amendment


The First Amendment

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.

Does this sentence separate church and state, or does it merely imply that government will not write laws that endorse a particular religion? Let’s analyze these words carefully: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”, would the founding fathers have been more precise if they wanted to say that there will be a distinct demarcation between church and state? These were brilliant men, who expressed themselves extremely well: to create a gulf between church and state is not a difficult passage to express, but to write that there should be no church given priority over another as a state religion is a more difficult task to phrase.

Coons, a dedicated Marxist who obviously feels we don’t have enough Marxists in Washington DC, is a polished debater, but he drew a blank when asked about the other provisions in the First Amendment and passed off the provision concerning church and state with the generic and inaccurate description, “the separation of church and state”. The elitist crowd of law students laughed, yet perhaps they were exhibiting their own naivete on the subject.

Thomas Jefferson was the founding father possessed with Freedom of Speech and Freedom of Religion. He was the driving force behind the Bill of Rights. The phrase “Wall of Separation”, attributed to Jefferson, was lifted from a “letter” he wrote to the the Danbury Baptists in 1802: this is described by Mark Levin in his book, Men In Black. The phrase was ignored for a 145 years, until Supreme Court Justice Hugo Black, in 1947, ruled in the Everson case, upholding the use of taxpayer money to transport catholic and parochial children to non-secular schools- citing the Jefferson phrase. Thus the anti-religous precedent was set to cause antipathy and damage to religious freedom.

It is doubtful whether those that laughed at Ms O’Donnell understood the significance of her answer or the insignificance of their derision.

Chief Justice Rehnquist: In a dissent on a 1985 ruling against school prayer, “There is simply no historical foundation for the proposition that the framers intended to build the ‘wall of separation’ that was constitutionalized in Everson….” He termed Jefferson’s “wall”, “a metaphor based on bad history, a metaphor which has proved useless as a guide to judging.”

Columbia Law School Professor Phillip Hamburger in his 2002 book “Separation of Church and State” argues that the early Americans enacted the Establishment Clause to prevent the corruption of religion by worldly influences, and that “the constitutional authority for separation is without historical foundation.”

The arrogance of students is preceded only by their ignorance. Skook, 2010

More here.

0 0 votes
Article Rating
Notify of
Inline Feedbacks
View all comments

Very well said Skookum, I’ve been trying to write this up but I couldn’t do a better job than yourself. So now I’ll just link the article.

Hi Skookum.

Would you consider the following hypothetical legislation to be constitutional:

HR-9999 All able-bodied citizens must attend at least one religious service per calendar month, or be fined $200 per infraction.

If you feel it is unconstitutional, you should have no problems articulating your reasoning. Please, humor me, and take a minute to do so (for I fail to see how the law would be giving any one church priority over another).

If you feel the law would/should pass constitutional muster, wouldn’t you agree that a society goverened by such a law lacks “religious freedom”? From that, would you not also need to conclude that our Constitution does not guarantee “religious freedom”?



I also note the amendment is very specific – Congress shall make no law. . . As in the Federal Congress. Does this not imply the States / Counties / City governments can?


Congress shall make no law . . . or prohibiting free exercise.

Congress shall make no law – unconstitutional

Free exercise includes the free to not exercise. – unconstitutional.

We have one clause that says Congress shall not establish any religion, and another saying that Congress shall not interfere with the free exercise of religion. Add in the Ninth Amendment’s statements about unenumerated rights retained in the people, add in the 14th Amendment applying the First Amendment to the states, and you have the entire concept that there is a separation between church and state. This means neither the feds nor the states should be establishing or promoting religion, or favoring one religion over another, discriminating against anyone because of their religion, or interfering in a person’s exercise of their religion, their choice whether to have a religion.

Hi Mike,

For the record, I was mostly responding to Skookum’s notion that the founders simply wanted the government to avoid favoring one religion over another.

I do appreciate your clear-cut statement of this principle “Free exercise includes the free to not exercise. ” Incredible as it seems, some in the conservative mindset don’t think things are that cut and dry. My follow-up question to you: when we get to real-life, sticky, nuanced situations, do you allow for a little “wiggle room” into this principle?

A couple examples to find out:

Many Christians exercise a religious practice called “group prayer”, whereby a group of believers collect in a closed area and remain silent while one person loudly offers invocations to the Christian god. Should Congress be able to enact laws which force all citizens to participate in group prayer (under penalty of banishment from, say, town hall meetings)?

Many Christians exercise a religious practice of creed vocalization – that is, stating the creeds and beliefs of their religion aloud and publically. Should Congress be able to enact laws which force citizens to vocalize religious beliefs (e.g, the religious belief that there is a “God” that is “over” us); or enact laws that demonstratably coerce children into doing the same?

I’m also curious about your attitude toward taxation (specifically, the allocation of tax revenue to religious institutions). Would you consider it constitutional for congress to levy the following tax:

HR-9998 1% of all taxable income will be collected and distributed to religious institutions on a per-capita basis.

If not, why not? Circling this back to “real life”, should congress be able to tax its citizens and give the revenue to a Christian church to spend on construction of a massive 200-foot-tall cross?



The “Wall of Separation” phrase comes not from the Constitution, but from President Jefferson’s letter to the Danbury Baptists in 1802.

B-Rob, If the new comer religion is seen as a threat to AMERICA DO you FAVOR them,?
PAID by AMERICANS HARD WORKERS? DO you apologise to our enemies,
while the blood of AMERICANS are spilling?.

It is doubtful whether those that laughed at Ms O’Donnell understood the significance of her answer or the insignificance of their derision.

The alternate interpretation is that they correctly understood the significance of her answer instantly.

What popped into my own mind was where this sort of revisionist thinking can lead. There are people such as Sharron Angle, for example, who would deny the victims of incest or rape the freedom to decide to terminate a resultant pregnancy, because “God has a plan”.

What’s of far greater concern to me is that far-right conservatives have a plan.


What popped into my own mind was where this sort of revisionist thinking can lead.

What “revisionist thinking” are you referring to here?

What “revisionist thinking” are you referring to here?

The thought that the first part of the First Amendment wasn’t specifically intended to constrain government from either promoting or impeding various expressions of religious belief.


The thought that the first part of the First Amendment wasn’t specifically intended to constrain government from either promoting or impeding various expressions of religious belief.

Seems to me that you’re attempting to revise the crux of the O’Donnell / Coons discussion at the debate.

Of course we expect you libs to do that when you cannot win the debate based strictly on the matter at hand.

Seems to me that you’re attempting to revise the crux of the O’Donnell / Coons discussion at the debate.

It struck me that that’s what Spinmeister Limbaugh is doing. To my way of thinking, the exchange at the debate pretty much speaks for itself. Obviously opinions vary.

GREG: SURE GOD HAS A PLAN and don’t you forget that CONSERVATIVES haven’t
GOD LOVING PEOPLE, living peacefully, respecting each other,not trying to impose their beliefs; and now it has come to a point where it has become embarrassing to proclaim JESUS out loud; because SOME
minority religion are protesting that it offend their own religion:

that is wrong for AMERICA’S FREEDOM, and the people have notice and know what to to do to correct it now and once time for good.

Ever so slightly off topic:
I made it out to be a simple mistake a while back when Obama ”forgot” or lost his place on his teleprompter and omitted the CREATOR from his quote of the Declaration of Independence.

But he did it again!

Oct 18th, 2010:

Remarks by the President at a DSCC Dinner in Rockville, Maryland


Most of us here came from someplace else — or our parents came from someplace else, or our grandparents, our great grandparents came from someplace else. And they were inspired by a particular idea, this idea of America. As wonderful as the land is here in the United States, as much as we have been blessed by the bounty of this magnificent continent that stretches from the Atlantic to the Pacific, what makes this place special is not something physical. It has to do with this idea that was started by 13 colonies that decided to throw off the yoke of an empire, and said, “We hold these truths to be self-evident, that all men are created equal, that each of us are endowed with certain inalienable rights, that among these are life, liberty and the pursuit of happiness.”

And that idea,…..


What does the document really say?

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.

It is starting to look like Obama is doing it on purpose.

Nan G : hi, I would believe also, a slip of a so important word as CREATOR, is
very suspicious; WHAT look like a chicken is surely it.

Great catch, Curt.
I really appreciate how completely Patterico makes the case.
Some dino-media still thinks there is a real ”memory hole” down which they can disappear things.

Hi Kevin,

I assume you enjoy amateur law; at least, your condescending attitude indicates a willingness to be amused by the ramblings of a back country horseman’s opinions on Constitutional law. I hope I don’t disappoint you.

Although the First Amendment forbids a state religion or a preference of one religion over another, it doesn’t imply that religion is mandatory.

In the new Obama Care, citizens will be required to purchase insurance or face fines that will equal the cost of insurance: the logic or argument for HR-9999, will surely be found in the logic for penalizing those who feel they can pay cash for medical services or those elect not to participate.

What If Christine O’Donnell Were Right About The First Amendment?


The mainstream media and blogosphere have erupted because in a radio debate Christine O’Donnell appeared to dispute whether “separation of church and state” was required by the First Amendment. (O’Donnell’s campaign walked back the position after the debate, saying O’Donnell merely meant that the words were not in the First Amendment.)

The concept of separation of church and state is not, indeed, in the wording of the First Amendment. Rather, as explained in the 1984 U.S. Supreme Court decision in Lynch v. Donelly:

This Court has explained that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is

to prevent, as far as possible, the intrusion of either [the church or the state] into the precincts of the other.

Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).

At the same time, however, the Court has recognized that

total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable.

Ibid. In every Establishment Clause case, we must reconcile the inescapable tension between the objective of preventing unnecessary intrusion of either the church or the state upon the other, and the reality that, as the Court has so often noted, total separation of the two is not possible. [p673]

The Court has sometimes described the Religion Clauses as erecting a “wall” between church and state, see, e.g., Everson v. Board of Education, 330 U.S. 1, 18 (1947). The concept of a “wall” of separation is a useful figure of speech probably deriving from views of Thomas Jefferson. [n1] The metaphor has served as a reminder that the Establishment Clause forbids an established church or anything approaching it. But the metaphor itself is not a wholly accurate description of the practical aspects of the relationship that in fact exists between church and state.

The reference to Jefferson relates to this passage from a letter Jefferson wrote in 1802, as recited in the 1878 case Reynolds v. United States (emphasis mine):

“Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.”

So, O’Donnell unquestionably did not agree with the popular liberal conception that the First Amendment by its written terms requires a “separation of church and state,” but she was not wrong.

And what an embarrassment to Widener Law School that as soon as O’Donnell questioned whether “separation of church and state” was in the First Amendment, the crowd erupted with gasps of disbelief and mocking laughter.

And if O’Donnell’s imperfect — or perhaps nuanced? — understanding of the First Amendment were so outrageous, how about the inability of Chris Coons, a Yale Law School graduate, to identify the other freedoms protected by the First Amendment, and his misquoting the text of the First Amendment in his challenge to O’Donnell:

“Government shall make no establishment of religion,” Coons responded, reciting from memory the First Amendment to the U.S. Constitution. (Coons was off slightly: The first amendment actually reads “Congress shall make no law respecting an establishment of religion.”)

Ann Althouse has more on how Coons simply was wrong in his quotation of the First Amendment which led to O’Donnell’s supposed major gaffe about the Establishment Clause, and how the press has taken O’Donnell’s comments out of context:

O’Donnell reacts: “That’s in the First Amendment?” And, in fact, it’s not. The First Amendment doesn’t say “government.” It says “Congress.” And since the discussion is about what local school boards can do, the difference is highly significant.

Also, it isn’t “shall make no establishment of religion.” It’s “shall make no law respecting an establishment of religion.” There’s a lot one could say about the difference between those 2 phrases, and I won’t belabor it here. Suffice it to say that it was not stupid for O’Donnell to say “That’s in the First Amendment?” — because it’s not. Coons was presenting a version of what’s in the cases interpreting the text, not the text itself.

A literal reading of O’Donnell’s comments reflects that she was correct, but of course, the press and the blogosphere don’t want a literal reading, they want a living, breathing reading which comports with their preconceived notions.


William A. Jacobson

* Industry: Law
* Occupation: Associate Clinical Professor of Law, Cornell Law School

About Me

Associate Clinical Professor of Law, Cornell Law School, Ithaca, NY

* I am a 1981 graduate of Hamilton College and a 1984 graduate of Harvard Law School. At Harvard I was Senior Editor of the Harvard International Law Journal and Director of Litigation for the Harvard Prison Legal Assistance Project. Prior to joining the Cornell law faculty in 2007
* I had a highly successful civil litigation and arbitration practice in Providence
* Rhode Island
* concentrating in investment
* employment
* and business disputes in the securities industry
* including many high profile cases reported in leading newspapers and magazines. I am quoted frequently in national media on issues related to investment fraud and investor protection
* and in the past have served as one of a small number of private practice attorneys who trained new arbitrators for the Financial Industry Regulatory Authority. I am on the Board of Directors of the Public Investors Arbitration Bar Association
* an organization of attorneys representing public investors. I have argued cases in numerous federal and state courts
* including the Courts of Appeal for the First
* Fifth and Sixth Circuits
* and the Rhode Island Supreme Court. My academic interests include alternative dispute resolution
* electronic evidence discovery
* and the scope of arbitrator power in contractual arbitration. For a listing of my professional presentations
* reported cases
* and press references
* see my CV at: http://ww3.lawschool.cornell.edu/faculty/faculty_cvs/Jacobson.pdf

Ok, another Lawyer but more credible than our resident pest Billy Bob and from what I have read at his blog, he is an actual Professor, not an Affirmative Action hire “Lecturer” and he does post his experiences in practice. instead of making vague references.

I’ll take a shot at your hypothetical bill…

HR-9999 All able-bodied citizens must attend at least one religious service per calendar month, or be fined $200 per infraction.

Seems to me this would fail constitutional muster… not so much the first amendment, but the 10th. There is no enumerated power for the feds to enact anything like this.

The other bill …

HR-9998 1% of all taxable income will be collected and distributed to religious institutions on a per-capita basis.

Would seem to be an obvious violation of the first amendment. After all a person’s religion may well prohibit them from supporting folks they consider heretics…. so by forcing them to support another religion through taxes would be interfering with the free exercise. On the other hand, nothing is so cut & dried. We don’t allow human sacrifice, even if your religion allows it.

The constitution was ratified by states which had established religions–or denominations, more accurately.
Therefore, the idea that NO government entity could have anything to do with an establishment of religion did not seem to be the case. It was congress only.
Practice and doctrine have evolved, so that from time to time we hear of nonsense like el ed principals forbidding kids from handing out Christmas candy with a wrapping saying, “Jesus loves you.”
But it’s not in the First Amendment. Another item which is in the Noble First is “nor prohibiting the free exercise thereof”.

@ jim s, We draw the line at human sacrifice, polygamy, honor killings and dueling.
Pretty narrow minded Eh… 😯

Hi Skookum,

My apologies. Re-reading, I see that the “humor me” comment does come across as condescending. It was not meant to be. It was meant in the context “I realize my hypothetical law will probably be considered laughably unconstitutional; however, if you will humor me by articulating why it is unconstitutional, perhaps you will see why equating the first ammendmant to simply “not favoring one religion over another” weakens the ammendment far beyond what our forefathers could have intended. A socratic attempt at making an overarching point that, either one must accept that the first ammendment says more than, “not favoring one religion over another”, or that our first ammendment doesn’t truly enshrine religious freedom in any real sense.

Also, you mis-guage me if you think that I support the health care mandates one bit. Part of the “psychosis” that keeps me attuned to FA is that I do see a lot of sense in the Tea Party movement. I do want government to take a huge step back out of places it has no business being. However, I keep running into the distinct sense that Tea Partiers want a small governemnt EXCEPT when it comes to using the power of the government to advance their religious agenda (e.g. by weakening the sentiments expressed in the first ammendment).

Kevin: hi, I read your comment above, and I thought that maybe the FATHERS never intended
THAT AMERICANS would become so “free for all” as to keep the border open to let any other religion who claim to eventuely slowly like a rampant snake, take over the power of ruling,
over AMERICA, and erase the values, they the fathers of the CONSTITUTION” work hard to install for the future of this beautiful AMERICA; EVEN more so, they never believe that it would be
accepted by the protectors of this country without any reprisal from the people,;
but I think that they will be found right at the end because their thrust in the AMERICANS,
will show that it will be taken care of returning to their ROOTS is to find the SOLUTION,
bye SR

From BRob

This means neither the feds nor the states should be establishing or promoting religion, or favoring one religion over another, discriminating against anyone because of their religion, or interfering in a person’s exercise of their religion, their choice whether to have a religion.

For once, his wording and choice of phrasing is correct. Unfortunately, his meaning is much different than that of conservatives, and he implies earlier in his post of a “separation of church and state”. How wrong that is. Apparently, our founding fathers didn’t know nearly as much as BRob does, and their numerous writings and quotes on the topic mean nothing.

In reality, liberals and progressives wish to remove all trace of “God” from public life, even when it is widely known that Christians, Jews and Muslims all worship the same God, including the many denominations of those particular religions. To remove “God” from public life, is to remove the very mechanism which has granted all of our individual rights, and to force the false Idolatry of government upon the masses. In their mind, government grants the rights, and can take them away as well.

No one can deny the founding fathers based our freedoms on the Bible. We have it in their own words.

“It cannot be emphasized too clearly and too often that this nation was founded, not by religionists, but by Christians; not on religion, but on the gospel of Jesus Christ. For this very reason, peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here.” – Patrick Henry

Just one of many. The progressives wish not to believe this, as it destroys their intentions to make our society a completely godless one. If that ever happens, we should all weep for what our nation once was, and what is has become.

Whenever the pillars of Christianity shall be overthrown, our present republican forms of government, and all blessings which flow from them, must fall with them.” – Jedediah Morse

In reality, liberals and progressives wish to remove all trace of “God” from public life…

Wrong, wrong, wrong. Did I mention, this is wrong? Have you ever seen an atheist object to the existence of Christian billboards? To the religion section of the newspaper? To boundless religious broadcasts on radio or television?

The only common element to the things atheists, liberals, and progressives do object to is when Christians use the power of the US Government to promote their religious agenda. When Christians use the privately owned newspapers to proclaim their message, fine. When they use the federal monetary printing presses to decree “God is real and we trust him”, we cringe. Put a nativity scene in front of a home, church, or private business; even to the exclusion of any alternative message? Yawn. Put it on government property, excluding any alternative messages: cringe. A public school teacher proclaiming to her bible study group, “God is great”. Yawn. On her facebook page? Yawn. In editorials to the newspaper? Yawn. Blog? Yawn. Banner on her house? Yawn. Bumper stickers on her car? Yawn. But…. proclaiming it to students mandated by law to be her captive audience: cringe.

Like many conservatives, you seem a smart person, johngalt. This distinction is not complex. How does it so completely elude you guys? Christians can put their Christian message in any public place they want, and nobody will lift a finger to stop them, so long as no Government power is used to prevent others from using that same platform. Could this be made any clearer?

Why, yes.


Freedom not to participate does not mean freedom to prevent my participation – or my communitees.


By public, I mean the public that is government, not public as in “can be seen by all”. And yes, I do mean that liberals and progressives wish to remove all trace of God from public spaces. You make the same mistake that many have made, and that is equating the word God with only the Christian religion. The truth is, and I stated it above, that Christians, Jews, and Muslims all worship the same God, and many other religions have a single deity that they sometimes refer to as “the God”.

What is more, from writings and quotes on the subject, one can easily see that this nation was founded on Christian principles, but, because of the atmosphere that caused many to come to this land, the religious freedom of all is protected by our Constitution. No where in it, is there any form desire for the complete removal of God from government. There is only the singular action, or expressed prevention, of Congress promoting a national religion.

One must understand history, and read the writings of those who came before, to understand their intentions, and liberals and progressives do not do this. Instead, they warp the writings, and the Constitution itself, to convince the masses of their “rightness” on not only this issue, but others as well. They have coopted the atheists into their cause to remove God from public life.

As for Christians using the federal government to promote their religious agenda, name something they have done in the recent past that proves this.

Kevin: what about the CHRISTIAN MINISTER WHO was invited to make a PRAYER speech at
a STATE GATHERING, and the person representing this government,who ask to read the copy
before, TOLD him not to MENTION JESUS in his PRAYER, because it might OFFEND some.
YES OPEN your EYES and EARS, THAT is happening at this now time, and came from ELECTED one.

I don’t understand what this part means, “or prohibiting the free exercise thereof”, and I don’t think Congress does either…just saying 🙂