The default position for Tea Party candidates such as Christine O'Donnell in Delaware, Joe Miller in Alaska, Sharon Angle in Nevada, Ken Buck in Colorado and Ron Johnson in Wisconsin is to declare that—if elected—they will follow the dictates of the Constitution.
But that is a campaign slogan, not a serious commitment.
If O'Donnell, Johnson and their Tea'd-Off compatriots were even minimally serious about adhering to the founding document, they would all be thoughtful critics of the undeclared wars in Iraq and Afghanistan, ardent foes of the Patriot Act and steady opponents of free trade deals that remove the authority of Congress to represent and serve the interests of American workers, farmers and communities. But then they would be Russ Feingold, and it goes against the Tea Party narrative—at least as it has been framed by the movement's corporate paymasters and messaging consultants—to regard a progressive Democrat as the most ardent defender of the American experiment.
So it should be understood that O'Donnell, Miller, Angle, Buck, Johnson and the rest of the Tea Partisans who might be senators are not talking about the Constitution as it was written or as the founders intended it. Rather, they are talking about the Constitution as they would like to see it rewritten and reinterpreted—with the help of the most activist Supreme Court in American history. While their intents are radical, their prospects must be seen in light of the fact that Chief Justice John Roberts and his conservative majority have already reinterpreted the First Amendment's free speech protection in a manner that extends the natural rights that the founders reserved for human beings to multinational corporations.
How big a leap would it be to rewrite the amendment's referencing of religion as an invitation to promote an establishment of religion?
That depends on whether you are reading Christine O'Donnell's Constitution or Thomas Jefferson's Constitution.
O'Donnell, the Tea Party favorite who is carrying the Republican banner in this fall's Delaware US Senate contest, found herself debating the First Amendment earlier this month at the Widener University Law School—where the man whose seat she hopes to occupy, Vice President Joe Biden, once taught constitutional law.
Her Democratic opponent, Chris Coons, explained that, while parochial schools can teach creationism, the Constitution makes it clear that "religious doctrine doesn't belong in our public schools."
O'Donnell shot back: "Where in the Constitution is the separation of church and state?"
Coons explained that the First Amendment bars Congress from making laws respecting the establishment of religion.
To which O'Donnell responded: "You're telling me that's in the First Amendment?"
"You actually audibly heard the crowd gasp," Widener University political scientist Wesley Leckrone told the Associated Press.
No surprise there. The law professors and law students in the room recognized that Coons had been referencing the specific language of the First Amendment, which reads: "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."
Law professors may expect candidates for the US Senate—where Supreme Court nominations are approved or rejected—to have at least a passing familiarity with the Constitution's most famous section,
But expectations with regard to the Constitution go out the window when O'Donnell and her Tea Party cronies comment of the document.
That's because they presume the Constitution outlines an agenda reflective of their own passions—in keeping with the satirical headline in The Onion: "Area Man Passionate Defender Of What He Imagines Constitution To Be"—rather than a set of enlightenment ideals that rejected the divine right of kings, priestly titles and official state religions.
What distinguished the American Constitution and the founding moment was this recognition that individual liberty and the democratic experiment upon which the United States was embarking required freedom of thought and action with regard to religion—a freedom that was preserved and protected by leaders who recognized that they ruled by the will of the people rather than by "divine right."
Today's Tea Party candidates are hardly the only partisans who have hailed the Constitution without actually bothering to consult it—let alone consider expressions from the founders regarding its intents and purposes. But as the O'Donnell incident illustrates, their confusion with regard to the founding document might best be described as unsettling. Wisconsin Senate candidate Johnson, for instance, has fretted during the current campaign about how the Constitution "is not an easy document to read" and complained that he was finding it "hard to study." While Johnson said he thought he was clear on the free speech and right to bear arms parts, he griped that: "There are also things that aren't quite so easy."
But one part is actually very easy, as we have not merely the wording on paper but the clearly expressed original intentions of the founders.
That's the part about keeping government out of the business of establishing or encouraging particular religious ideas or practices.
The United States was not founded as a country that "tolerated" religious diversity. It was founded as a country that embraced that diversity as one of its greatest strengths, welcoming Christians, Jews and Muslims, believers, nonbelievers and skeptics into a polity where, as George Washington explained, "The government… gives to bigotry no sanction, to persecution no assistance."
The US Senate made the founding position explicit and official a decade after the drafting of the Constitution, when the chamber ratified the Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli of Barbary, with its declaration that: "As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquility, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."
Again and again, the principle was explicitly affirmed. The most famous of these affirmations came in 1802, when Thomas Jefferson explained in his letter to the Danbury Baptists that: "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 legitimate powers of 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."
While the founders survived, there was no mystery about their "original intent" with regard to that wall of separation between church and state. Indeed, when the greatest of our public services, the post office, was developed, it was determined without serious debate that mail would be delivered seven days a week.
Only in the late 1820s did some Christian groups object. And their complaints were quickly rejected by Congress, which adopted the position—stated by Kentucky Sen. Richard M. Johnson—that: "our government is a civil and not a religious institution."
Many adherents of the Tea Party movement fear that the United States is adrift, floating further and further from the moorings put in place at the republic's founding.
In this, they are probably correct.
America, founded by sons and daughters of the enlightenment, who rejected the notion that there was anything "divine" about the crimes and corruptions done in the name of European monarchs and false piety, has drifted.
Candidates for the highest offices are unfamiliar with or hostile to the basic premises of the republic. And their wrongheaded positions are, increasingly, sustained by justices of a Supreme Court that has tipped the scales of justice against the Constitution itself.
It is true that our founding values are neglected and affronted in these times. But the assault is not coming from members of the House and Senate who vote for unemployment benefits are want to maintain Social Security,
It is coming from politicians like Christine O'Donnell and Ron Johnson, who never took the Constitution seriously—and still don't.