The Election

November 1, 2010

CFI is not a partisan organization; it is a nonprofit that, under the law, must refrain from endorsing candidates and political parties. I will honor those restrictions here—not just because I have to, but because I believe they are appropriate.

But even though I cannot endorse candidates, I can talk about issues.

This mid-term election is interesting from a variety of perspectives. One reason I find it interesting is that a number of candidates have made “a return” to the principles of the Constitution an important part of their message, and this appeal has gained some traction among a sizeable number of voters, according to various surveys. In fact, the importance of the Constitution has been referenced more frequently during this campaign than in any other campaign that I can recall (with the possible exception of the 1974, post-Watergate, mid-term).

I am all for reminding voters of the importance of the Constitution, which, despite its flaws, has provided the U.S. with a stable government and has proven to be an important guarantor of fundamental freedoms. Unfortunately, in this election there seems to be an inverse relationship between the frequency with which a candidate invokes the Constitution and the knowledge that candidate actually possesses about the Constitution. The most extraordinary claims have been made about the Constitution, such as the claim that unemployment benefits are unconstitutional and that individual states have the right to secede. The claim I want to focus on here, however, is the claim that the Constitution does not provide for the separation of church and state.

This claim has been advanced by a number of candidates, and when pressed to provide support for their claim, the response is either a blank stare or the observation that the Constitution does not actually contain the words “separation of church and state.”

This vacuous observation has long been an intrinsic part of the creed of the Religious Right. (You remember the Religious Right don’t you? It’s that movement that supposedly had been dealt a death blow in the 2008 elections.) Its reappearance in this election cycle is proof that stupidities never die—they just get uttered by new people.

It is true that the phrase “separation of church and state” does not appear in the Constitution. But, of course, the Establishment Clause of the First Amendment has long been interpreted to require a separation of church and state. Indeed, the actual constitutional language arguably goes further, prohibiting the government from enacting any law respecting (i.e., regarding) an establishment of religion. The government is directed to stay out of religious matters completely, necessarily implying that religious functions are to be kept separate and distinct from government functions.

The silly argument that the Constitution does not provide for separation of church and state because those exact words do not appear in the Constitution has the intellectual weight of a game of “Simon says.” Taken to its logical conclusion, this argument would imply, among other things, that the government can torture you (the Eighth Amendment does not contain the word “torture”) and videotape your bedroom activities without your consent (video recordings are not mentioned in the Fourth Amendment). Moreover, candidates for office might have to be much older than we currently believe because the Constitution does not expressly distinguish between Earth years and Martian years.

As one candidate has observed, it’s not a requirement of public office that an elected official memorize the Constitution. But one would hope that those who seek the responsibility of being our legislators would have some acquaintance with logic and history.

Of course, that’s not a requirement either. Any idiot can run for office. Some might argue that is one of the weaknesses of our democracy. But it’s only a weakness if the idiots win the election. That’s where you come in. If you have not done so already, please vote tomorrow.