Phil Plait is the Bad Astronomer. That is, he writes the column Bad Astronomy. I think he’s probably a pretty darn good astronomer. He is not, however, a good Constitutional Scholar. Back in 2008 (yes, I know, but I’m a slow reader, ok?), critiquing a silly claim by Vox Day (as if there were any other type of Vox Day claims), Plait wrote:

The US, despite claims by the far right, actually was and is built on a secular basis, and that is not only written in the Constitution, but in the very first right it lays out. Secular in this case doesn’t mean non-religious, it means not favoring any particular religion.

Plait is obviously referring to the religion clauses of the First Amendment, but he is, oh, so terribly, astronomically, wrong.

To begin, the First Amendment does not contain the first right laid out in the Constitution, as Alexander Hamilton made clear in Federalist 84.

The most considerable of these remaining objections is, that the plan of the convention contains no bill of rights. …

…I answer that the constitution proposed by the convention contains, as well as the constitution of this state, a number of such provisions.

Independent of those, which relate to the structure of the government, we find the following: Article I. section 3. clause 7. “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.” Section 9. of the same article, clause 2. “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Clause 3. “No bill of attainder or ex post facto law shall be passed.” Clause [8]. “No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them, shall, without the consent of the congress, accept of any present, emolument, office or title, of any kind whatever, from any king, prince or foreign state.” Article III. section 2. clause 3. “The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the congress may by law have directed.” Section 3, of the same article, “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” And clause [2], of the same section. “The congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.”

Setting aside the limits on the effects of impeachment (which I would not count as a general right of citizens), and the prohibition on granting titles of nobility (not, properly speaking, a right at all), but adding in one he glossed over, the execrable right to import slaves (sadly, the very first true citizen right listed in the Constitution), I count about eight rights that textually precede the religion clauses.

But at least in the Bill of Rights, the amendment containing those important clauses was intentionally listed first, right? But, no, contrary to what seems to be popular opinion, there is no significance to the First Amendment being first. Madison’s original bill put the religion clauses in his fourth article of amendment. Further, he did not propose a discrete set of articles to be added on as a postscript to the body of the Constitution, but proposed to directly amend the text, in a way that would have embedded the religion clauses the third clause of Section 9 (the section that lists actions Congress is forbidden to take).

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

But obviously that’s not how Congress sent out the amendments to the states for ratification, so perhaps they corrected Madison’s clumsiness, and put the religion clauses first to signal their importance? No, not even that, because the bill they passed and sent to the states included twelve amendments, among which the amendment protecting religious freedom, speech, etc., was the third. If we accept the “first because most important” logic, then Congress must have thought their first two proposed amendments concerning the apportionment of Representatives and the timing of their pay raises–neither of which was ratified at the time, although the latter finally was ratified 202 years later, to become, rather than the second, the Twenty-Seventh Amendment–were more important than religious freedom.

So to recap, the religion clauses are not the first rights written into the Constitution, nor did Congress propose them as the first rights in the Bill of Rights, nor were they even the first amendments listed in Madison’s original proposal. At no point prior to ratification did religion appear first in a list of rights. Their priority even within the additional set of rights added to the Constitution is entirely a fortuitous accident of history, not a symbolic statement of their importance.

I don’t want to come down harshly on Phil Plait, whom I quite admire. But it is ironic that in writing a column based on rebutting bad arguments about one field, the author makes equally bad arguments about another field.


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13 Responses to Bad Astronomy? No, Bad Constitutionalism.

  1. Burt Likko says:

    Plait wrote: “…Secular in this case doesn’t mean non-religious…” I don’t know what Plait was thinking, but the Constitution creates a secular government in the sense that the government is not religious.

    Both the original document adopted out of the conventions, and the amended document as it stands today. It forms no religious offices, it invests no official with any sort of religious or ecclesiastical authority, it does not purport to proclaim on matters of faith or divinity or theology, and it prohibits religious tests for the holding of office.

    If that isn’t a “non-religious” government then I don’t know what else that term could mean.

    Contrast even the unamended original Constitution with, say, the UK, where the monarch is the Established Head of the Church of England. That’s a religious Constitution, even if one that is not written down in a unified document; it creates a government that has a religious dimension baked into its fiber. (Oh, this is the UK I’m writing about, so make let’s that “fibre.”) Or with the government of contemporary Germany, which imposes tithes as employer withholding on wages — although the employee gets to choose which church receives the benefit of the tithe.

    Plait is guilty of sloppy wordsmithing more than bad Constitutional scholarship. He may not be a lawyer, political scientist, or historian, but he is a writer.

  2. Oscar Gordon says:

    To be fair, Phil is not the only person who mistakenly assigns significance to the order the BOR is in. It’s a common error.

    • Jhanley says:

      Oh, don’t I know it. He’s not the first I’ve corrected, and many of the others are equally well educated.

  3. Mike Hunt Ray Rice says:

    critiquing a silly claim by Vox Day (as if there were any other type of Vox Day claims)

    You are engaging in hyperbole.

  4. Brandon Berg says:

    The first amendment specifically limits the powers of Congress, rather than establishing an individual right (i.e. it was not intended to limit the power of state governments and in practice did not do so for quite some time).

    So how much of this was a desire for separation of church and state, and how much was just states disagreeing about what exactly the national religion should be, and a general desire to limit the scope of the federal government?

    • Jhanley says:

      It was more about fears that a coalition of other states in Congress would favor a sect different than the one favored in our state. You could see it as a sort of mutual non-aggression pact. But all the states, I think, had disestablished religion by the 1830s or so.

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