Wisconsin law prof defends Delaware smug doofus

Inexplicably popular blogger Ann Althouse and the Milwaukee Journal-Sentinel's haplessly accidental funnyman Patrick McIlheran come to the rescue of Tea Party Republican Christine O'Donnell's embarrassing performance* at a candidates debate in Delaware the other day.

Looky here what Althouse has to say, the award-winning McIlheran beams: "She's a famous blogging lawyer." What Althouse has to say is that she doesn't have a "verbatim transcript" of the eight-minute exchange, that all the press reports are terrible, but forges ahead with her "analysis" nonetheless, by relying on ... a press report.

Prof. Althouse commends O'Donnell because, Prof. Althouse claims, she was focusing on constitutional text during the tête-à-tête with Democrat Chris Coons, whereas Coons was speaking about broader principles of interpretation. Except no, O'Donnell was not.

What follows are the relevant portions of the "verbatim transcript," which took all of about 15 minutes to prepare.

The clip begins with O'Donnell delivering a moronic lecture to Coons on teaching creationism in public schools, about which O'Donnell is wrong on every single count. Eventually, O'Donnell announces:

O'Donnell (2:21):
The reason we're in the mess we're in is because our so-called leaders in Washington no longer view the indispensable principles of our founding as truly that: indispensable. We're supposed to have limited government, low taxes ... [crosstalk]

We'll leave it to Prof. Althouse to locate either "limited government" or "low taxes" in the text of the Constitution.

Coons (2:36):
And one of those indispensable principles is the separation of church and state.

At this point, the moderator tries to move on to the next question.

O'Donnell (interrupting) (2:48):
Uh, wha, where in the Constitution is separation of church and state?

[Laughter, appropriate expressions of shock and horror]

She doesn't say anything about text; they're still on the "indispensable principles of our founding." Then the moderator does move to another question, during which O'Donnell has to ask him what is in the 14th Amendment.

Moderator (3:59):
The 14th Amendment defines citizenship.

O'Donnell (4:02):
Oh.

And again, she refers to "principles." Later, the two candidates return to the First Amendment's Establishment Clause.

Coons knows exactly what O'Donnell is up to, that at some point she is probably going to attempt to pose the thoroughly idiotic question, 'Where are the exact words "separation of church and state" in the Constitution.' Idiotic because everyone knows they are not there, and that it was a Jeffersonian paraphrase famously repeated in 1947 by Hugo Black in Everson v. Board of Education, and not because the Court was basing its decision — which favored the party that was a religious establishment, incidentally — on Jefferson's letter to the Baptists. Black mentioned it in passing because he understood it to be one of those "indispensable principles of our founding."

Which is what O'Donnell had brought up in the first place and what Coons was continuing the discussion on for several minutes.

Coons (5:42):
I also think you've just heard, in the answers from my opponent, and in her attempt at saying, 'Where is the separation of church and state in the Constitution,' reveals her fundamental misunderstanding of what our Constitution is, how it is amended and how it evolved. The First Amendment — the First Amendment — establishes the separation, the fact that the federal government shall not establish any religion, and decisional law by the Supreme Court over many, many decades ...

O'Donnell (interrupting again) (6:09):
The First Amendment does?

Coons (6:11):
... clarifes and enshrines, that there is a separation of church and state that our courts and our laws must respect. Back to Roe versus Wade ...

O'Donnell (interrupting again) (6:18):
So you're telling me that the separation of church and state, the phrase 'the separation of church and state,' is found in the First Amendment?

There is O'Donnell finally saying "the phrase," while Coons is still speaking. But he never even suggested that "the phrase" appears in the Constitution, and indeed it isn't even clear that he heard O'Donnell saying "the phrase," because she's talking over him. Again.

Coons (6:23):
... and the Griswold question earlier, the zone of privacy is something that the Supreme Court interpreted the Bill of Rights and several of those amendments to create. It is important for us in modern times to apply the Constitution, in my view, as it exists today, and as it's been interpreted by our Justices. And if there are settled pieces of constitutional law, like the separation of church and state, like the individual right to reproductive freedom that Roe v. Wade represents, that we've lived with and have lived under for decades, in my view it is important to know whether you have on my side a candidate who believes and supports those things and on the other side a candidate who is both unfamiliar ...

O'Donnell (interrupting again) (7:06):
Let me just clarify, you're telling me that the separation of church of state is found in the First Amendment.

Coons (7:12):
Government shall make no establishment of religion.

This horrifies Prof. Althouse as it's not exactly a verbatim rehearsal of the First Amendment, but it works well enough as an expression of the spirit of the case law as it stands today, which is what Coons just got done talking about. But O'Donnell still isn't satisfied.

O'Donnell (7:16):
That's in the First Amendment.

[More laughter]

Yes. Did you not just catch Coons's example of Griswold, or what.

That "indispensable principle" is found in the First Amendment. Likewise, those other "indispensable principles of our founders," that corporations are persons, and that cash money is free speech.

(One might reasonably assume Jefferson counts as a "founder," if not a "framer," although the framer of the First Amendment, James Madison, had been a close and like-minded colleague of Jefferson's on these very issues of religious establishment and separation when both were State legislators in their native Virginia previously. Which is to say, if Hugo Black was after an authoritative contemporary voice, he could've done a hell of a lot worse than Thomas Jefferson.)

Which is what Coons had been saying all along, and he is correct, if inartful. And Althouse is wrong: O'Donnell was never talking about "text" apart from one fleeting moment that Coons probably didn't even hear, as it was practically mumbled, while he was talking.

That is what the video reveals — what Althouse's press reports don't.

Watch and listen.

* Embarrassing to view. O'Donnell is incapable of embarrassment.

eta: Moar witches.