Southern Religion

Antonin Scalia’s trampling of James Madison [Addendum]

U.S. Supreme Court Justice Antonin Scalia told Hamodia: The Daily Newspaper of Torah Jewry in an interview:

When I first joined the Court, I needed to spend a lot of time researching what the original understanding was, since the lawyers would just quote the last Supreme Court case. There are now two for sure, thoroughgoing originalists on the Court, Clarence Thomas and myself. And I think the Court as a whole has become more receptive to originalism. I think – or perhaps I just hope – that American jurisprudence is moving away from an evolving Constitution to an enduring Constitution.

His concept of “originalism” is historically selective. His explanation elevates the transcient instructions of majorities of Congress to George Washington above the works of the framers, in particular James Madison. Through that slight of historic hand, Scalia rationalizes an essentially theocratic view of the Establishment Clause:

Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

Scalia has abandoned the long abiding principle that the U.S. Constitution protects the right of citizens to pursue their own beliefs, mocking it with the assertion that such ideas are European in origin. In the course of his rationalization, he drifts off into a barely coherent story about how “‘G-d protects little children, drunkards and the United States of America.’ I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court open its sessions with “G-d save the United States.” Those things are not insignificant.”

Dr. Bruce Prescott looks directly at the narrow, restrictive nature of Scalia’s view:

Note how Protestants, Jews and Catholics are named and personalized in Scalia’s comments while the existence of non-religious persons can only be inferred from impersonal language. His comments appear to presume that non-religious persons have no rights of conscience.

Scalia’s historically selective approach tailors itself to the needs of the Religious Right only by carefully ignoring Madison’s Memorial and Remonstrance.

Madison was, as Prescott observes, a framer of both the Constition and the Bill of Rights. Ignoring his Memorial and Remonstrance is a betrayal of legal scholarship and history to present-day partisanship.

In it Madison wrote [and Prescott quotes]:

If “all men are by nature equally free and independent,” all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an “equal title to the free exercise of Religion according to the dictates of Conscience.” Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.

We knew the nation was in uncertain hands when the Supreme Court made an unelected George W. Bush president. Scalia makes it clear that under his leadership, basic freedoms are imperiled.


Twitter reminds us that Justice Scalia once famously cited Agent Jack Bauer — yes, the fictitious 24 character — to explain his belief that torture is necessary in time of crisis. Thanks also to John Hummel.


September 20, 2009 - Posted by | Churches, Law, Politics, Religion | , , ,

1 Comment

  1. I am very sensitive about first amendment rights, freedom of religious expression or non-expression being among them. A number of Scalia’s opinions, and extra-judicial statements about religion are incomprehensible. But, we should also recognize that Scalia and Thomas are sometimes the only ones who speak out for individual rights, even rights that are now so lost to us, they are no longer recognized.

    For example, both Scalia and Thomas would recognize the principle of U.S. v. Boyd (1886) as still good law, and government could not willy nilly call for production of our private papers. Today it is even doubtful that someone’s private diary would not be subject to a subpoena. Scalia wrote Kyllo v. U.S., which stands for the principle that if the government cannot come into our home without a warrant or its equivalent, they cannot use high technology to do so. And it was Thomas and Scalia who at least raised the issue in the most recent Abortion case, Gonzales v. Carhart, that congress did not have the right to legislate about abortion, a police power of the state. I raise these as examples, of course.

    Thomas and Scalia also have a more traditional, pro-State view of democracy, rooted in the 9th and 10th amendments. As to many issues, they simply argue that whether some things are “good” or “bad” should not be the decision of some unelected jurist(s), but by the collected elected representatives of the people.

    So, although I do not like Scalia’s 1st amendment perspective with regard to religion, I do not think the baby should be thrown out with the bathwater. Right now the Supreme Court is tilted a little right. Another day it may be tilted a little left. That’s as close to perfect as you are probably ever going to get.

    Comment by David H. Eisenberg | September 21, 2009

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