The media are in a full-scale hyperventilation following Tuesday's separation of church and state comments by Delaware Republican senatorial candidate Christine O'Donnell.
As an Investor's Business Daily editorial points out, O'Donnell was right when questioned about this issue during a debate with Democrat candidate Chris Coons, and all the nattering nabobs of negativism filling the airwaves are wrong:
There is, of course, no such passage. Those scoffing law scholars might want to look at the Constitution's unadorned text instead of the judicial activist law review articles that take up so much of their day.
What the Constitution does say, in the Establishment Clause of the First Amendment, is that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" — a restriction imposed upon the state to prevent its interference in religious practice.
IBD referenced Mark Levin's "Men in Black: How the Supreme Court is Destroying America":
The "Wall of Separation" phrase comes not from the Constitution, but from President Jefferson's letter to the Danbury Baptists in 1802. As Levin notes, the obscure comment was virtually ignored for nearly a century and a half. It wasn't until 1947 when Supreme Court Justice Hugo Black ruled in the Everson case — which actually upheld the use of taxpayer money to transport children to Catholic and other parochial schools — that the Jefferson metaphor was used to establish "the anti-religious precedent that has done so much damage to religious freedom."
Levin's argument is similar to that of the late Chief Justice William Rehnquist. In his dissent in a 1985 ruling against silent school prayer, Rehnquist pointed out: "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 called Jefferson's "wall" "a metaphor based on bad history, a metaphor which has proved useless as a guide to judging."
Others legal scholars agree:
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."
IBD moved to a fabulous conclusion:
Is it any wonder that the newest Supreme Court justice, Elena Kagan, did not require the study of constitutional law when she was dean of Harvard Law School — but did require the study of foreign law? Those future federal judges graduating Harvard might catch onto the fable liberal activists have gone to such trouble weaving.
Maybe we should start calling the First Amendment's Establishment Clause the "Free Exercise of Religion Clause"— since that's what its plain language protects. Perhaps then there would be fewer false decrees from judges and fewer laughs when a citizen politician states a constitutional truth.