Posted on 06/27/2005 8:13:10 PM PDT by BCrago66
Isn't this R v S the "One Man-One Vote" case that was the rage in the sixties? That is the case which abolished historical districts (such as counties) and replaced tham with gerrymandered districts of equal population? Forbid by the Court Federal in speaking down to States, yet they still left the US Senate, eh?
Stripped of all the legal 'cites', etc, what Scalia wrote becomes much more understandable:
---- Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another.
That is indeed a valid principle where public aid or assistance to religion is concerned, or where the free exercise of religion is at issue,
but it necessarily applies in a more limited sense to public acknowledgment of the Creator.
If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.
One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.
With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational–but it was monotheistic.
In Marsh v. Chambers, we said that the fact the particular prayers offered in the Nebraska Legislature were "in the Judeo-Christian tradition," posed no additional problem, because "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,".
Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion.
The former is, as Marsh v. Chambers put it, "a tolerable acknowledgment of beliefs widely held among the people of this country."
The three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic.
All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God.
Both practices are recognized across such a broad and diverse range of the population – from Christians to Muslims – that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
A few remarks are necessary in response to the criticism of this dissent by the Court, as well as Justice Stevens' criticism in the related case of Van Orden v. Perry.
Justice Stevens' writing is largely devoted to an attack upon a straw man.
"Reliance on early religious proclamations and statements made by the Founders is … problematic," he says, "because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution's text."
But I have not relied upon (as he and the Court in this case do) mere "proclamations and statements" of the Founders. I have relied primarily upon official acts and official proclamations of the United States or of the component branches of its Government, including the First Congress's beginning of the tradition of legislative prayer to God, its appointment of congressional chaplains, its legislative proposal of a Thanksgiving Proclamation, and its reenactment of the Northwest Territory Ordinance; our first President's issuance of a Thanksgiving Proclamation; and invocation of God at the opening of sessions of the Supreme Court.
The only mere "proclamations and statements" of the Founders I have relied upon were statements of Founders who occupied federal office, and spoke in at least a quasi-official capacity – Washington's prayer at the opening of his Presidency and his Farewell Address, President John Adams' letter to the Massachusetts Militia, and Jefferson's and Madison's inaugural addresses.
The Court and Justice Stevens, by contrast, appeal to no official or even quasi-official action in support of their view of the Establishment Clause – only James Madison's Memorial and Remonstrance Against Religious Assessments, written before the federal Constitution had even been proposed, two letters written by Madison long after he was President, and the quasi-official inaction of Thomas Jefferson in refusing to issue a Thanksgiving Proclamation.
The Madison Memorial and Remonstrance, dealing as it does with enforced contribution to religion rather than public acknowledgment of God, is irrelevant; one of the letters is utterly ambiguous as to the point at issue here, and should not be read to contradict Madison's statements in his first inaugural address, quoted earlier; even the other letter does not disapprove public acknowledgment of God, unless one posits (what Madison's own actions as President would contradict) that reference to God contradicts "the equality of all religious sects."
And as to Jefferson: the notoriously self-contradicting Jefferson did not choose to have his nonauthorship of a Thanksgiving Proclamation inscribed on his tombstone.
What he did have inscribed was his authorship of the Virginia Statute for Religious Freedom, a governmental act which begins "Whereas Almighty God hath created the mind free . . . ."
It is no answer for Justice Stevens to say that the understanding that these official and quasi-official actions reflect was not "enshrined in the Constitution's text."
The Establishment Clause, upon which Justice Stevens would rely, was enshrined in the Constitution's text, and these official actions show what it meant.
There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected.
Justice Stevens says that reliance on these actions is "bound to paint a misleading picture," but it is hard to see why. What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it?
Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism.
I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke.
(Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.)
At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington's First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.
Rather than relying upon Justice Stevens' assurance that "the original understanding of the type of 'religion' that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,"
I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that,
"All possess alike liberty of conscience and immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights."
The letter concluded, by the way, with an invocation of the one God:
"May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy."
Justice Stevens says that if one is serious about following the original understanding of the Establishment Clause, he must repudiate its incorporation into the Fourteenth Amendment, and hold that it does not apply against the States.
This is more smoke. Justice Stevens did not feel that way last Term, when he joined an opinion insisting upon the original meaning of the Confrontation Clause, but nonetheless applying it against the State of Washington.
The notion that incorporation empties the incorporated provisions of their original meaning has no support in either reason or precedent.
Justice Stevens argues that original meaning should not be the touchstone anyway, but that we should rather "expound the meaning of constitutional provisions with one eye towards our Nation's history and the other fixed on its democratic aspirations."
This is not the place to debate the merits of the "living Constitution," though I must observe that Justice Stevens' quotation from McCulloch v. Maryland, refutes rather than supports that approach.
Even assuming, however, that the meaning of the Constitution ought to change according to "democratic aspirations," why are those aspirations to be found in Justices' notions of what the Establishment Clause ought to mean, rather than in the democratically adopted dispositions of our current society?
As I have observed above, numerous provisions of our laws and numerous continuing practices of our people demonstrate that the government's invocation of God (and hence the government's invocation of the Ten Commandments) is unobjectionable – including a statute enacted by Congress almost unanimously less than three years ago, stating that "under God" in the Pledge of Allegiance is constitutional.
To ignore all this is not to give effect to "democratic aspirations" but to frustrate them.
Finally, I must respond to Justice Stevens' assertion that I would "marginalize the belief systems of more than 7 million Americans" who adhere to religions that are not monotheistic.
Surely that is a gross exaggeration.
The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator.
Invocation of God despite their beliefs is permitted not because nonmonotheistic religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of God is not an establishment.
Justice Stevens fails to recognize that in the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors.
Our national tradition has resolved that conflict in favor of the majority.
It is not for this Court to change a disposition that accounts, many Americans think, for the phenomenon remarked upon in a quotation attributed to various authors, including Bismarck, but which I prefer to associate with Charles de Gaulle: "God watches over little children, drunkards, and the United States of America."
---- Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another.
Scalia believes that the government can favor one religion over another?
That is indeed a valid principle where public aid or assistance to religion is concerned, or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgment of the Creator.
Indeed, he insists [within limits?] that the government publicly acknowledge a Creator.
If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.
The government has a need to acknowledge a Creator in the public forum? - Why?
One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.
Correct. And any public official who feels the need to ridicule beliefs puts himself up to political recourse, as Durban just found out.
With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.
Exactly.. Disregard 'devout' minorities as you will.. It's your personal right..
But as an official, sworn to protect & defend the Constitution, you have pledged to uphold the personal rights of your fellow citizens, not to 'disregard' them. -- I'd say that in an official capacity, one should watch their official pronouncements.
My understanding of what he said is that incorporation does affect the application, but not the meaning.
In this case, incorporation would extend to reach of the amendment to disallow any branch of government with a legislative function from making laws to establish a religion or regulate the free practice (extends the application). It would not stop the mayor of some small town from displaying a creche (change in meaning).
In this case, our personal right is to freely practice our religion. It is not to not be offended by some official pronouncment. If I am sufficiently offended, I have the recourse to vote the rascals out of office.
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