Tuesday, March 15, 2005
What, in Scalia's view, is the Establishment Clause supposed to do?
Apparently Scalia has explained his views in a journal called First Things in 2002, saying there that "government . . . derives its moral authority from God." Scalia cited Romans 13:1-5, which says (in the King James version):
Scalia seems to think that the Bible is authority enough to construe the Constitution, so long as an overwhelming majority of the country agrees ("probably 90 percent of the American people believe in the Ten Commandment").
 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.  Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.  For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:  For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.  Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
Leon Wieseltier, writing in The New Republic, adds to Lithwick's account. "At the court last week, [Scalia] dripped certainties. 'Government draws its authority from God.' 'Our laws are derived from God.' 'The moral order is ordained by God.' 'Human affairs are directed by God.' 'God is the foundation of the state.'" In a different context, like a sermon, this might seem ordinary enough, but coming from the bench it is more than just a little bit shocking. It takes a certain arrogance and blindness, as Wieseltier says:
These are dogmas, not proofs. Scalia simply asserts them and moves on to incredulity and indignation. But how does he know these things? Does he hold these opinions, all venerable ones, by the authority of his reason or by the authority of his tradition? If by the former, then he should do my reason the honor of giving an account of his reason, so that I might be able in good conscience to assent; and if by the latter, well, his tradition is not my tradition, and so his assurances do not compel me. Certainty, as Maimonides warned his student, must not come by accident. It is an insult to democratic discussion to introduce these doctrines without an accompanying sense of the obligation to argue for them. But Scalia dispenses with argument, he lives after argument; and in its happy sensation of its own rightness, life after argument is very much like life before argument. Scalia's undisturbed experience of obvious truth is a kind of mental decadence.Maybe the Court will uphold the displays in Texas and Kentucky, but God forbid that Scalia writes the majority opinion.
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