Anchor Wolf Blitzer played an edited clip of O'Donnell's questioning of Coons on the First Amendment issue during Tuesday morning's WDEL Delaware Senate candidate debate on his Situation Room program. Blitzer did not play the part where the Republican clearly asked, "You're telling me the 'separation of church and state'- the phrase, 'the separation of church and state' is found in the First Amendment?" [audio available here] After playing the edited sound bite, Blitzer continued that "O'Donnell's spokesman later said she was not questioning the concept of church and state subsequently established by the courts, she simply made the point, he says that the phrase appears nowhere in the Constitution, 'separation of church and state.'" This is an accurate summary of the candidate's line of questioning, but since the anchor didn't play the part where she used the term, "the phrase 'separation of church and state,'" he made it seem like the spokesman was giving a clarification.
Blitzer then turned to Toobin, and after reading the full text of the First Amendment, asked the CNN senior legal analyst, "So when her [O'Donnell's] spokesman says the words 'separation of church and state' specifically are not in the First Amendment, they're not." The analyst confirmed that this was the case. Later in the segment, the CNN anchor raised how O'Donnell also couldn't remember what the 14th and 16th Amendments were during the debate and asked, "Do Senators need to memorize the Constitution?" Toobin made a fair point about the importance of the 14th Amendment in his answer, but also got something wrong himself:
TOOBIN: They certainly don't, and it's funny: those two amendments are actually very different, the way most people think about them. All three were passed right after the Civil War. The 14th is really one of the most important amendments. It relates to equal protection of the laws, the right of everyone to due process. The 15th and 16th come up less often in modern courts, but the 14th is a pretty big deal.
Actually, the 16th Amendment, which legalized federal income taxes, was passed in 1913, 48 years after the Civil War. Toobin was likely thinking of the 13th, 14th, and 15th Amendments, which were all ratified during the five years after the end of the war.
Later in the evening, Toobin himself admitted that he didn't know what the 16th Amendment dealt with, during the first minutes of the 10 pm Eastern hour of Anderson Cooper 360. Guest and Tea Party organizer Dana Loesch became the first person to note how Coons couldn't recall the other freedoms protected by the First Amendment during the Delaware debate, a moment which The Politico reported in their write-up on Tuesday. Toobin replied to her with his admission:
LOESCH: Chris Coons was unable to mention the five enumerated rights in the First Amendment in this debate. No one's discussing that at all, and you would think that someone who is running for Senate- the First Amendment, that's an easy. That's a gimme. That's stuff that everybody learned in seventh and eighth grade. You would think that he would at least- and I realize that we're not all constitutional experts, but if we're going to have the same standard applying to Christine O'Donnell, it also needs to be applicable to Chris Coons as well.
JEFFREY TOOBIN: Fair-
ANDERSON COOPER: Fair point.
TOOBIN: That's certainly a fair point. Everybody has to be judged by the same standard. You know, it's hard to evaluate something like this in a way that makes- that is fair criticism, but you don't want to sound like a jerk or a scold. I had to look up the 16th Amendment. I didn't remember the 16th Amendment off the top of my head. But the 14th is a big deal. The First is a big deal.
The CNN analyst went on to make his claim that O'Donnell didn't seem to know the First Amendment at all. Loesch disputed with his interpretation:
COOPER: The 14th- the thing about the 14th, and I was hesitant to be critical of this, but the 14th has been bandied about so much over the last couple of months with citizen- you know, birthright citizenship and the like.
TOOBIN: That's right, and if you listen to the full context of the debate about the First Amendment, it wasn't just that she didn't know the phrase 'separation of church and state' was not in the First Amendment. She didn't know what the First Amendment was about. I mean, that, I think- you know, you don't need it to be-
COOPER: Well, her defenders will say- well, look, she was pointing out that term 'separation of church and state' is not in the First Amendment.
TOOBIN: That's what her supporters would point out. That's not what the tape shows. What the tape shows is she didn't know anything about the First Amendment, at least as I saw.
COOPER: Dana, do you think that's true?
LOESCH: I don't agree with that.
TOOBIN: You don't think that's true?
LOESCH: No, I don't agree with that at all. I think what she was pointing out was Chris Coons's unequal application of the Establishment Clause, regarding the First Amendment, and how- really, when you deny rights in the classroom to one group, when you deny rights to one group in favor of secularism, which is its own religion- religion is not patented by just a faith in God or Christian principles. It's a devotion and a set of beliefs to a certain something. You could be religious in your love of music, or religious about green causes. But when you deny rights to one- that's unequal. It's just let it- let whatever be represented be represented. That's a fair application of the Establishment Cause in first- religion- and if people- really, that was put in the First Amendment to protect religion from government, and this is really- when you delve into Thomas Jefferson's letter to the Danbury Baptists, the sentence following the wall of separation between church and state really sheds a lot light onto that.
Of course, Toobin glossed over the part where O'Donnell clearly asked, "You're telling me the 'separation of church and state'- the phrase, 'the separation of church and state' is found in the First Amendment?" It isn't just a matter of what "her supporters would point out."
The following morning, just after the bottom of the 7 am Eastern hour of Wednesday's American Morning, anchors John Roberts and Kiran Chetry asked CNN senior political editor Mark Preston about the O'Donnell remark. Preston gave his own spin of what the Republican said:
ROBERTS: So what about the separation of church and state, Mark?
PRESTON: Hey, John, good morning. Good morning, Kiran. Well, I'll tell you what. You know Christine O'Donnell has said a lot of embarrassing things, has had to explain herself a lot. And yesterday, during a debate, she stumbled over the Constitution. Specifically, it was a discussion about creationism in public schools and how to teach it and whether to teach it. She didn't know that the First Amendment gave (laughs) - allowed for the separation of church and state.
As O'Donnell correctly pointed out, that's not what the First Amendment says. To his credit, however, Preston played a fuller excerpt of the exchange, including the Republican's use of the term "the phrase 'the separation of church and state.'" But he quickly followed this with more liberal spin:
PRESTON: There you go. Christine O'Donnell asking not- you know, more than once, if whether that language is actually in the Constitution, which is very important, because she is a Tea Party candidate and this is a big issue for the Tea Party. In addition, she stumbled over the 14th Amendment and the 16th Amendment. Of course, the 14th Amendment grants citizenship to folks who are born here in the United States. Some Tea Party activists want to repeal that, and, of course, the 16th Amendment establishes the federal income tax. So, Christine O'Donnell is trailing badly in the polls right now- another stumble- not good, as we head into Election Day.
Preston badly mangled some conservatives' call for a reinterpretation of the 14th Amendment so that anchor babies aren't automatically granted citizenship into saying "some Tea Party activists want to repeal" the amendment.
Later in the segment, Chetry did mention Coons's gaffe, but only as part of a criticism of O'Donnell: "She [O'Donnell] went on to criticize Chris Coons for not knowing the five freedoms contained in the First Amendment- odd, because during the debate, when she was asked about the 14th Amendment, she said luckily, senators don't have to memorize the Constitution. So, some are asking, which one is it today?"
After a commercial break, Toobin returned to repeat his spin on O'Donnell's remark, this time without a conservative's objection:
ROBERTS: Let's go to Christine O'Donnell. We were talking about this with Mark Preston just a moment ago. In that debate with Chris Coons, she said yesterday, where is the separation of church and state in the First Amendment. She was roundly laughed at, and many people are saying this is a huge stumble on her part. Is it really?
TOOBIN: Well, certainly, the larger point O'Donnell was making is one that is a perfectly legitimate conservative point, which is that the courts have imposed too many barriers to religious expression in public life. You know, conservatives think there should be prayer in schools, there should be prayers at football games. These sorts of controversies are perfectly legitimate things to argue about. The problem was, she didn't seem to know that the basis of that controversy was the words of the First Amendment. Whether that was just an awkward stumble or she really didn't know is a little hard to tell.
