From Justice Scalia, a Chilling Vision of Religion s Authority in America

Earlier this year Antonin Scalia decided to share some aspects of his worldview with the public. His inspiration seems to have been the death penalty: recent debates with his colleagues on the Supreme Court and his general reflections on the legitimacy of the state taking to itself the power to kill a citizen. Justice Scalia spoke on these matters at the University of Chicago Divinity School in January, beginning with the ritual disclaimer that "my views on the subject have nothing to do with how I vote in capital cases"; his remarks appeared in the May issue of First Things: The Journal of Religion and Public Life. They are supplemented by his dissent to the court's decision on June 20 that mentally retarded people should not be executed. Justice Scalia's remarks show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.

Because Mr. Scalia is on the Supreme Court, and because President Bush has held him up as an example of judicial greatness, his writings deserve careful attention.

Mr. Scalia seems to believe strongly that a person's religious faith is something that he or she (as a Roman Catholic like Mr. Scalia) must take whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia noted with relief that the Catholic Church's recent opinion that the death penalty was very rarely permissible was not "binding" on Catholics. If it had been, Mr. Scalia said, this teaching would have led the church to "effectively urge the retirement of Catholics from public life," given that the federal government and 38 states "believe the death penalty is sometimes just."

Mr. Scalia apparently believes that Catholics, at least, would be unable to uphold, as citizens, views that contradict church doctrine. This is exactly the stereotype of Catholicism as papist mind control that Catholics have struggled against throughout the modern era and that John F. Kennedy did so much to overcome. But Mr. Scalia sees submission as desirable — and possibly the very definition of faith. He quotes St. Paul, "For there is no power but of God: the powers that be are ordained of God."

"The Lord," Mr. Scalia explained in Chicago, "repaid — did justice — through His minister, the state."

This view, according to Mr. Scalia, once represented the consensus "not just of Christian or religious thought, but of secular thought regarding the powers of the state." He said, "That consensus has been upset, I think, by the emergence of democracy." And now, alarmingly, Mr. Scalia wishes to rally the devout against democracy's errors. "The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible," he said in Chicago.

Mr. Scalia is right about one thing. Modern democracy did upset the divine authority of the state. That has usually been considered by Americans to have been a step forward. The great 17th-century dissenter Roger Williams declared that government derived no authority whatsoever from God, but was "merely human and civil." Thomas Jefferson put matters bluntly in 1779: "[O]ur civil rights have no dependence on our religious opinions any more than on opinions in physics or geometry."

That view prevailed among the framers at Philadelphia in 1787. Throughout their debates, even when they prayed for divine guidance, they rejected the idea that political authority lay with anyone or anything other than the sovereign people. The only extended discussion of religion in the Federalist Papers has James Madison listing zeal in religious opinion as one of "the latent causes of faction" that cause men "to vex and oppress each other" and that need institutional checks.

There have always been Americans who have thought as Justice Scalia does now. In 1781 a Massachusetts minister, Jonas Clark, preached that religion is "the source of liberty, the soul of government and the life of a people." But ever since the Revolution, this has been a minority view, even an eccentric one, among Americans. It has had no appreciable place in our constitutional history because the framers rejected it.

They had many reasons for doing so, not least the factionalism mentioned by Madison. They had an idea that sovereignty rested with a free people, even if some among those people didn't believe in God, or in the same God, or in the same way.

Such a belief in the worth of people independent of religious considerations (whether their own or those of the state) has distinguished secular democracy. This seems to irritate Mr. Scalia. It seems to indicate a humanist egotism that might lead a person to think individual lives are so valuable that it is not the privilege of the state to take them. "Indeed, it seems to me," Mr. Scalia said in Chicago, "that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the churchgoing United States. I attribute that to the fact that for the believing Christian, death is no big deal."

This might imply that the death penalty would have little deterrent effect for the faithful. It might also imply that devout Christians have fewer moral scruples about disregarding the Old Testament's injunction against killing. ("For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence," Mr. Scalia said sarcastically. "What a horrible act!") But that is not quite Mr. Scalia's point. He wants us to know that Catholics and perhaps other religiously minded people have the moral sense to hold their own wills as slight things compared to those of God and His minister, the state — with the partial exception of judges.

In Chicago, Mr. Scalia argued strenuously that in America a judge who morally opposed the death penalty ought to resign. "Of course," Mr. Scalia said, "if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty — and if that fails, lead a revolution."

But leading a revolution would inevitably bring some interference with the application of laws, not to mention all the other atrocities that typically attend revolutions. Only a judge could think it better to play Robespierre than to issue too ambitious an opinion.

One senses that Mr. Scalia's true priority is to get secular humanists off the federal bench. In his dissent to Atkins v. Virginia, the recent decision against executing mentally retarded criminals, Mr. Scalia wrote, "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members." The ones he had in mind were not all the members, just the six who disagreed with him. Mr. Scalia dissents vigorously against them for letting their personal notions infect the law.

In Chicago Mr. Scalia asserted, not for the first time, that he is a strict constructionist, taking the Constitution as it is, not as he might want it to be. Yet he wants to give it a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution. That is not properly called strict constructionism; it is opportunism, and it threatens democracy. His defense of his private prejudices, even if they may occasionally overlap the opinions of others, should not be mislabeled conservatism. Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced.

Sean Wilentz, co-author of "The Kingdom of Matthias," directs the American studies program at Princeton.

Saw this over someone's shoulder on the bus this morning. Finally used that cool NT Times random login generator (If you don't know about it, check my bookmarks on my profile page. It's quick and easy.)

As for this article, the author is correect when he says "Justice Scalia seeks to abandon the intent of the Constitution's framers." Actually, Scalia says the intent of the Framers is irelevant. The author asserts that Scalia called himself a "strict constructionist" in Chicago. I am not sure of that. Scalia is a "textualist." He advocates interpreting the words using statutory construction: interpret the words according to what they were understood to mean when they were written. That is not the same thing as the "intent" of the Framers. The Framers had their own intentions, and they were not unanimous. But they left behind a legal document. Interpet it as is, and change it according to its own processes when you see fit. Far from being anti-democratic, the notion that what the people ratify cannot be altered by nine lawyers is entirely democratic, as is the idea--whcih Scalia advocates--the the People should amend the Constitution to provide for protections they desire but which the Constitution neglects (e.g., abortion.)

Transcript of his actual remarks

"the Constitution that I interpret and apply is not living, but dead; or as I prefer to call it, enduring. (Laughter.) It means today not what current society, much less the Court, thinks it ought to mean, but what it meant when it was adopted. "

That is the "Madisonian" view:
Madison: "[T]he legitimate meanings of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be . . . in the sense attached to it by the people in their respective State Conventions, where it received all the authority which it possesses.
Letter to Thomas Ritchie, September 15, 1821 (Madison, 1865, III, page 228)

Another error has been in ascribing to the intention of the Convention which formed the Constitution an undue ascendancy in expounding it. Apart from the difficulty of verifying that intention, it is clear, that if the meaning of the Constitution is to be sought out of itself, it is not in the proceedings of the body that proposed it, but in those of the State Conventions, which gave it all the validity and authority which it possesses.
Letter to N.P. Trist, December, 1831 (Madison, 1865, IV, page 211)

The "Federalist" may fairly enough be regarded as the most authentic exposition of the text of the federal Constitution as understood by the Body [Constitutional Convention] which prepared & and the Authorities [state ratifying conventions] which accepted it.
Letter to Thomas Jefferson, February 8, 1825 (Peterson, 1974, 2. page 383)

Can it be of less consequence that the meaning of a Constitution should be fixed and known, than a meaning of a law should be so?
Letter to Mr. Ingersoll, June 25, 1831 (Madison, 1865, IV, page 185) "

I wonder what Founder the "living document" crowd could call their own? None, I think, and that shows the folly of their view.

I've read Scalia's article in First Things, and I can only say that Willentz falls prey to typical liberal misnunderstandings of conservative positions.

Like Huck notes in his post, Scalia doesn't seek to imbue the Constitution with any religious intent whatsoever. In most of his opinions and his discussions about his "textualist" beliefs, he disclaims any concern about the intentions of the Founders. In fact, he routinely dismisses legislative histories of bills as being far less reliable than the literal language of the bill.

Scalia's point is pretty powerful from a legal standpoint. Judges should interpret the law as it is written and should make post hoc divinations of the intent of legislators. Essentially, his argument is that the letter of the law is the surest guide of the spirit of the law.

As an aside, this silly canard also irritates me: Such a belief in the worth of people independent of religious considerations (whether their own or those of the state) has distinguished secular democracy. This seems to irritate Mr. Scalia.

Note how the author seems to imply that religious people or the critics of "secular democracy" cannot believe that in "the worth of people" but for their religious considerations. This is complete buncombe of course.

It's also worth noting that secular democracy doesn't exactly have the strongest track record of respecting the worth of individuals either (e.g. abortion, euthanasia, etc.).

Thomas Jefferson put matters bluntly in 1779: "[O]ur civil rights have no dependence on our religious opinions any more than on opinions in physics or geometry."

That view prevailed among the framers at Philadelphia in 1787. Throughout their debates, even when they prayed for divine guidance, they rejected the idea that political authority lay with anyone or anything other than the sovereign people. The only extended discussion of religion in the Federalist Papers has James Madison listing zeal in religious opinion as one of "the latent causes of faction" that cause men "to vex and oppress each other" and that need institutional checks.

There is so much confusion in this article, it's hard to know where to start.

The Founders did NOT regard the people as "sovereign". They left "sovereignty" where it belongs, not with the king, or the state, or the people, but with GOD. That's why when the Declaration was signed Sam Adams said, "We have this day restored the Sovereign to Whom all men ought to be obedient. He reigns in heaven and from the rising to the setting of the sun, let His Kingdom come." But I doubt that's what SEAN WILENTZ has in mind, with his "democratic", "institutional checks" on "zeal in religious opinion".

Roger Williams was concerned about civil government persecution for cause of conscience. He says, "....The God of Peace, the God of Truth will shortly seal this truth, and confirm this witness, and make it evident to the whole world, that the doctrine of persecution for cause of conscience, is most evidently and lamentably contrary to the doctrine of Christ Jesus the Prince of Peace."

But Wilentz's statement that, "The great 17th-century dissenter Roger Williams declared that government derived no authority whatsoever from God, but was "merely human and civil."" is either bad history, or a lie, or both. Williams said, "First, whereas they say that the civil power may erect and establish what form of civil government may seem in wisdom most meet, I acknowledge the proposition to be most true, both in itself and also considered with the end of it, that a civil government is an ordinance of God, to conserve the civil peace of people, so far as concerns their bodies and goods, as formerly hath been said."

What Williams did do was to distinguish between the roles of civil magistrate and the ecclesiastical role of the church officer:

"First, the proper means whereby the civil power may and should attain its end are only political, and principally these five.

First, the erecting and establishing what form of civil government may seem in wisdom most meet, according to general rules of the world, and state of the people.
Secondly, the making, publishing, and establishing of wholesome civil laws, not only such as concern civil justice, but also the free passage of true religion; for outward civil peace ariseth and is maintained from them both, from the latter as well as from the former.
Civil peace cannot stand entire, where religion is corrupted (2 Chron. 15. 3. 5. 6; and Judges 8). And yet such laws, though conversant about religion, may still be counted civil laws, as, on the contrary, an oath cloth still remain religious though conversant about civil matters.
Thirdly, election and appointment of civil officers to see execution to those laws.
Fourthly, civil punishments and rewards of transgressors and observers of these laws.
Fifthly, taking up arms against the enemies of civil peace.

Secondly, the means whereby the church may and should attain her ends are only ecclesiastical, which are chiefly five.

First, setting up that form of church government only of which Christ hath given them a pattern in his Word.
Secondly, acknowledging and admitting of no lawgiver in the church but Christ and the publishing of His laws.
Thirdly, electing and ordaining of such officers only, as Christ hath appointed in his Word.
Fourthly, to receive into their fellowship them that are approved and inflicting spiritual censures against them that o end.
Fifthly, prayer and patience in suffering any evil from them that be without, who disturb their peace.

I doubt whether Roger Williams would have approved of Wilentz's anti-Christian bigotry, or for that matter his view of the death penalty. In 1647, with Roger Williams present, the Rhode Island legislature adopted the following statute:

"Touching Whoremongers. First of Sodomie, which is forbidden by this present Assemblie threwout the whole Colonie, and by Sundry Statutes of England. 25 Hen. viii. 6; 5 Eliz. xvii. It is a vile affection, whereby men given up thereto, leave the natural use of woman, and burne in their lusts, one toward another; and so men with men worke that which is unseemly, as that Doctor of the Gentiles in his letter to the Romans once spake, i.27; The Penaltie concluded by that State [England] under whose authoritie we are, is Felonie of death, without remedye. See 5 Eliz. 17."

Cordially,

Scalia's point is pretty powerful from a legal standpoint.

I agree. He is arguing for a standard. Not only that, the standard he advocates gives great deference to the Congress, which is of course the representative body of the people. His approach also gives deference to the people via amendment. Scalia says that if you want a constitional right you do not have, amend the Constitution. It seems to me this is right in line with the Framers; Hell, the Bill of Rights is a collection of amendments.

Somewhere I read--I think it was Scalia's--great argument about the Nineteenth Amendment:

Section 1. The right of the citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
Section 2. Congress shall have power to enforce this article by appropriate legislation.

Under today's mode of jurisprudence, no amendment would have been adopted. The "changing evolving standard" or whatever turn of phrase they use would imbue to the judges the power to create this right where it didn't exist before. Clearly, in 1920 people still had some sense of the Constitution meaning what it says, and nothing more. It seems to me that the old way was the better way. At least then you knew where you stood (more or less) and the path was clear. Now, you never know. Ever.

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