Tuesday, March 15, 2005

What, in Scalia's view, is the Establishment Clause supposed to do?

A couple of weeks ago, the Supreme Court heard oral argument in a case involving the display of the Ten Commandments in Texas and Kentucky. In her coverage, Dahlia Lithwick suggested that Scalia is the only justice on the court being honest about the issues. The lawyers supporting the state-sponsored display suggested that it was all about history and tradition, not religion. But Scalia said: "When someone walks by the commandments, they are not studying the text. They are acknowledging that the government derives its authority from God."

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):

[1] 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. [2] Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. [3] 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: [4] 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. [5] Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

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").

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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