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Church and State

[ 48 ] February 28, 2012 |

Rick Santorum:

But Mr. Santorum accused “our culture, our education system’’ of falsely “teaching our children that separation of church and state” is mentioned in the Constitution.

The Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;


Comments (48)

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  1. Fighting Words says:

    There’s also the section about no religious tests for office in the US Constitution.

  2. Jon H says:

    I’m sure one counterargument would be that this only applies to Congress, not the other two branches.

    Not that I agree, I’m just saying.

    • Fighting Words says:

      The problem with that argument (which, unsurprisingly, many conservatives still use) is a surprising little thing called the Due Process Clause of the Fourteenth Amendment.

      The Fourteenth Amendment – by far the most important amendment in the US Constitution.

      • Julian says:

        I don’t understand how the DP clause of the 14th Amendment relates to separation of church and state.

        I thought that the 14th Amendment DP clause incorporates some (all?) of the other amendments (or only those enacted before the 14th?) to the states.

        That doesn’t seem to address how the 1st Amendment applies or doesn’t to the President and the Judiciary.

        My off-the-cuff IANAL response to “1st amendment only applies to Congress, dur” would be:

        Congress makes the laws, the president executes them, the judiciary interprets the laws and says if they’re constitutional. The president and the judiciary don’t have the power to independently create law, they can only act upon the law that Congress has created, so in a roundabout way the 1st amendment applies to everything that the other two branches act upon.

        Of course, administrative agencies exercise quasi legislative power all the time, but I don’t have an argument for that.

        • Fighting Words says:


          Ugh. Looking back, I misread Jon H’s original post. I assumed that he meant, “The Bill of Rights applies to Congress, but not state governments.” Which is an argument that a lot of conservatives make because they just hate the Fourteenth Amendment. In this situation, the Due Process Clause of the Fourteenth Amendment applies.

          To answer your question, to make a long story short, several rights (but not all) in the Bill of Rights apply to the states because they are incorporated into the Due Process Clause of the Fourteenth Amendment. The exceptions are: 3rd Amendment right not to have soldiers quartered, 5th Amendment right to grand jury indictment in a criminal case, the 7th Amendment right to a jury in civil cases, and the 8th Amendment right regarding excessive fines.

          As to the incorporation of the Establishment Clause and the Free Exercise Clause, these provisions have been incorporated against the states in two cases in the 1940’s.

          Regarding the Establishment Clause, this was incorporated against the states in Everson v. Board of Education (see Wikipedia: .

          Regarding the Free Exercise Clause, this was incorporated against the states in Cantwell v. Connecticut (see Wikipedia: .

          (I do know that Wikipedia is not the best source, but it works in this case).

          As for whether the notion of “separation of church and state” applies to the other two branches of federal government (The Presdiency/Executive and the Judicial), I would argue that the “No Religious Test Clause” of Article IV, Paragraph 3 of the US Constitution would apply and be an effective separation argument. This clause states, “no religious test shall ever be required as a qualification to any office or public trust under the United States.”

          But also, more importantly as you state, the Executive and Judicial branches do not make laws.

    • UserGoogol says:

      The argument I’ve heard a lot is that conservatives want to read the phrase “establishment of religion” as narrowly as possible. That is, it would be unconstitutional for the government to explicitly establish a state religion, but any other entanglement between church and state is totally fair game as long as the state doesn’t infringe on freedom to worship.

      • Hogan says:

        Hell, I’ve heard the argument that if a prayer is acceptable to both Methodists and Presbyterians, that means it’s “neutral” and schools should be allowed to mandate its recital.

        • John F says:

          I’ve heard the argument that the drafters “meant” christian religion, so that there is no freedom of religion for practitioners of other faiths under the US Constitution.

  3. Linnaeus says:

    But the Constitution doesn’t say “separation of church and state”. So there!

    • ralphdibny says:

      You joke, but that will be PolitiFact’s logic when they rate his statement “true.”

    • Murc says:

      You’re kidding, but yes, that’s the literal argument. There are conservatives who, very earnestly, very politely, will explain to you that the words “separation of church and state” don’t actually appear in the Constitution, and then, patiently, explain how “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” doesn’t mean what we think it means.

      • dave says:

        The point is, if you’re playing the originalist game, they’re quite right. But then, if they were playing the making-it-up-as-they-go-along game, they’d also be right. They’re only wrong if you accept the influence-of-later-jurisprudence premise. Most scholars do, but they don’t care.

        • Bobby Thomson says:

          No, if you’re playing the originalist game, they’re dead wrong. But thanks for playing.

          • Dave says:

            In what way, exactly?

            • Spud says:

              The concept of Separation of Church and State predates the Revolution by almost a century.

              The phrase itself comes from the writings of Roger Williams in the 1630’s.

              It was a guiding principle to the founding of Rhode Island and Pennsylvania and codified in their constitutions by the late 17th Century.

              It was the people of PA and RI who were the primary proponents of the 1st Amendment religious liberty clauses.

              Separation of Church and state was their intention from the beginning.

              Usually the people arguing against this sort of thing falsely attribute the concept to Thomas Jefferson in 1801 or SCOTUS in 1947. This is blatant historical revisionism of the worst type.

              • David M. Nieporent says:

                1) The concept of a separation of church and state goes back at least to Locke. Roger Williams espoused the concept, and wrote about it also, but did not use those actual words. The actual phrase “separation of church and state” is truthfully attributed to Jefferson.

                2) The issue, however, is not the “concept,” but the actual constitutional provision. Roger Williams may have espoused the concept, but he did not draft the U.S. constitution (or, more to the point, the B.O.R.)

                3) The current interpretation of the separation of church and state dates back only to Everson in 1947 (which quoted Jefferson, which is why the people attributing it to Jefferson are not “revising” anything).

                4) Obviously Santorum is not questioning whether the Constitution prohibits the establishment of religion. He is questioning whether the modern jurisprudence on the subject accurately reflects the meaning of that phrase.

                • Spud says:

                  You are not making an honest argument here. The only thing missing is a link to David Barton.

                  Williams used the phrase “Wall of Separation”.

                  Of course it would be completely dishonest to attribute the idea to Jefferson’s as if it originated with him. But that is the standard canned argument being used by those who are making these attacks on the Establishment Clause. Such as yours.

                  The issue, however, is not the “concept,”

                  Actually that is precisely the issue when people start blubbering about “original intent”! Whether it is the interpretation the founders had in mind.

                  Roger Williams and William Penn were long dead by the time the Constitution was written but their concepts were the guiding principle of those provisions. It was the original intent.

                  3) The current interpretation of the separation of church and state dates back only to Everson in 1947 (which quoted Jefferson, which is why the people attributing it to Jefferson are not “revising” anything).

                  Bullshit! Its just the most famous modern application of such interpretations. The interpretation of the 1st Amendment to mean separation of Church and State was there at the outset.

                  You are trying to pretend Separation of Church and State is a late coming idea. Its completely untrue and you rely on omitting and misrepresenting history.

                  Separation of Church and State predates the Constitution by a century and is the intended interpretation of the Establishment Clause from the outset.

                  4) Obviously Santorum is not questioning whether the Constitution prohibits the establishment of religion. He is questioning whether the modern jurisprudence on the subject accurately reflects the meaning of that phrase.

                  He isn’t questioning it, he’s attacking it! Trying to gouge out great chunks of it with his teeth. He is questioning the very purpose of the Establishment Clause.

                  The man has no respect for the Bill of Rights.

      • witless chum says:

        The words “democracy” and “democratic” don’t appear in the constitution. Clearly, we are a monarchy.

        God save the Queen!

    • Clark says:

      I think that is precisely what Santorum is arguing.

    • gorillagogo says:

      Exactly. These are the same people that argued with a straight face that Bush didn’t say Iraq was an imminent threat because he didn’t literally say those words.

  4. DrDick says:

    Come now! You do not seriously expect Santorum to have actually read the Constitution do you? He is a conservative and the voices in his head constantly recite it to him.

  5. Honorable..BOB says:

    Really disappointed in Erik.

    It’s the dumbest post I’ve seen him make, and I usually like his posts….

    • Erik Loomis says:

      I’m not sure whether it’s a complement that Bob hates this post or an insult that he usually likes my posts. How should I take this?

      • Tom M says:

        One way would not to use complement in the way you did. I know little honorable bob but you hardly seem complementary.
        That’s a compliment.

      • Uncle Kvetch says:

        I’m disappointed that Bob’s trolling seems to be getting lazier by the day — his heart’s obviously not in it.

        You should just install a “Dislike” button at the bottom of every post and that would probably be enough to keep him busy…especially if you could set it up so he gets a couple of pieces of yummy kibble each time.

        • JohnR says:

          kind of the opposite of ‘adding insult to injury’, eh? Of course, you realize that now it’s only a matter of days before the latest GOPMEME will be “the liberals are going to use the awesome power of Energy X the Internet to train us in Liberalism – every time a Right-thinking Person submits a comment, a powerful electric shock will be triggered from his keyboard, forcing us all to become Kenyan Socialist Muslims or Die!”

  6. Brutusettu says:

    Santorum talking about him wanting religion and government to be even more intertwined while in Perrysburg?

    Santorum was within 100 miles of me, I feel like I need a bath.

  7. Ken says:

    O for a time machine, preferably one that can grab people at a distance. Mr. Santorum really needs to spend a few weeks living as a devout Catholic in Calvin’s Geneva, or even Zwingli’s Zurich. It might make him appreciate that theocracies suck if you’re not the theocrat.

    • c u n d gulag says:

      There were theocrats on both, or many, sides.

      So, not only did it suck if you weren’t a theocrat, but also if you were a theocrat on the losing side(s).

    • John says:

      It is no coincidence that Catholics in predominantly Protestant countries (the US, Britain, the Netherlands, Germany) have tended to be much bigger fans of religious freedom than Catholics in predominantly Catholic countries.

    • Hogan says:

      I think the lesson he would learn from that is “make sure you’re always the theocrat.”

    • mds says:

      Hell, Mr. Santorum really needs to spend a few weeks living as a devout Catholic during the heyday of the Know Nothing Party. Or during Al Smith’s presidential candidacy. Or John F. Kennedy’s … No, wait, he’d be too busy throwing up to look at all the anti-Catholic editorial cartoons.

  8. The Shaggy DA says:

    Don’t forget that “privacy” isn’t in there either. We don’t have individual rights, only those that are good for the community, per the founding fathers.

    • DocAmazing says:

      Hell, as has been pointed out before, “Air Force” isn’t in there, so we must not have to pay for aircraft maintenance anymore.

      • chris says:

        Spies, too. Where’s the conservative movement to declare the CIA unconstitutional? Seriously, with the number of conspiracy theories that involve the CIA, there ought to be one.

    • David Kaib says:

      Also federalism and separation of powers. If he’s saying we should be more literal when we talk about what is ‘in’ the Constitution he no doubt will be complaining about those as well.

  9. Grocer says:

    You’ve made the big time, top of the “From Around The Web” list on the linked Times article.

  10. cpinva says:

    the supremacy clause trumps any and all arguments that federal law only applies to the federal government, and not the states.

    mr. santorum’s constitutional law professor was last seen beating his head against a wall, mostly because he was unable to beat mr. santorum’s head against said wall.

  11. dave says:

    Back in the 1980s Ronald Reagan could say this in public:

    We establish no religion in this country, we command no worship, we mandate no belief, nor will we ever. Church and state are, and must remain, separate. All are free to believe or not believe, all are free to practice a faith or not, and those who believe are free, and should be free, to speak of and act on their belief.

    The times, how they are a changin’.

  12. Epicurus says:

    Maybe, just maybe, Mr. Santorum is illiterate? In addition, of course, to Pierce’s observation that he really is a dick.

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