Justice Scalia on American Civil Religion
Jonathan Rowe on Aug 21st 2008
He well understands the concept until he gets to the Ten Commandments.
Justice Scalia, in his dissent in MCCREARY implies that “monotheism” has some type of constitutional privilege over non-monotheistic religions, at least in the context of government endorsement of monotheistic, over non-monotheistic religions. In that opinion he writes:
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.
Let me try to explain what I think is going on in Scalia’s head. He is willing to entertain the notion that the Establishment Clause does more than forbid a national Church, that government may indeed be forbidden from favoring one sect over another in its mere acknowledgments, and he is looking to the historical record for evidence. What he finds is that all of the first four Presidents, like the Declaration of Independence, commonly invoked God in their public pronouncements. But he also finds that their invocations were “scrupulously nondenominational,” so much so that they hardly can be termed “Christian” or even “Judeo-Christian.” As Scalia notes, “This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not)” and,
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.
Scalia instead dubs him “the God of monotheism.” And further notes, “[t]he three most popular religions in the United States, Christianity, Judaism, and Islam — which combined account for 97.7% of all believers — are monotheistic.”
So Scalia doesn’t really answer whether it is constitutional for government to endorse in its mere acknowledgments, one Christian sect over another, Christianity over Judaism, or Christianity and Judaism over Islam…but instead he concludes, based on the historical practice of the first four Presidents, it is constitutional to endorse “monotheism” over “non-monotheism.” Monotheism therefore is a Lowest Common Denominator among Judaism, Christianity, and Islam.
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.
Scalia then connects such “monotheism” with the Ten Commandments themselves.
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.
Here is the fatal flaw in Scalia’s argument. He fails to include “another” monotheistic tradition within the Lowest Common Denominator, arguably the most important tradition for purposes of this discussion because it happens to be the personal religion of the first four presidents he mentioned: theistic rationalism. And the theistic rationalists did not necessarily believe that “the Ten Commandments were given by God to Moses.” Nor did they ever say so in their public invocations of God.
These Founders did believe in a God, in fact believed that reason discovered God exists and grants men unalienable rights. But reason, not revelation is where ultimate truth is to be found. And these Founders disbelieved a great deal of revelation which they regarded as either unreasonable or unproven. And Moses divinely receiving those Commands was one of those truths about which our Founders were highly dubious.
For instance, here is Jefferson in an 1824 letter to Adams:
Where did we get the ten commandments? [The Bible] itself tells us they were written by the finger of God on tables of stone, which were destroyed by Moses; it specified those on the second set of tables in different form and substance, but still without saying how the other were recovered. But the whole history of these books is so defective and doubtful, that it seems vain to attempt minute inquiry into it; and such tricks have been played with their text, and with the other texts of other books relating to them, that we have a right from the cause to entertain much doubt what parts of them are genuine.
Adams likewise doubted that we had the right version of the Ten Commandments.
When and where originated our Ten Commandments? The Tables and The Ark were lost. Authentic copies, in few, if any hands; the ten Precepts could not be observed, and were little remembered.
If the Book of Deuteronomy was compiled, during of after the Babilonian Captivity, from Traditions, the Error or Amendment might come in there.
– John Adams to Thomas Jefferson, Nov. 14, 1813.
There is nothing in the private writings or public acknowledgments of the two other Presidents that contradict Jefferson’s and Adams’ sentiments here. They were all men of reason. Therefore, if we include the creed of the first four Presidents as part of the lowest common denominator of monotheism, we would have to exclude the notion that the Ten Commandments were divinely given by God.
What we would be left with in our LCD is this: There is a God; He grants us unalienable rights; He is concerned about human beings and will intervene, especially if we don’t respect the unalienable rights of others and nothing more. The first four Presidents never more specifically defined God’s attributes when publicly acknowledging Him.
In other words, a generic natural religion founds America’s public order. “Nature” meaning what is knowable through reason, not revelation. Revealed religion is to be consigned to the private sphere of society (as Harvey Mansfield, Michael Zuckert and Walter Berns argue that our Founders, after Locke, intended).
“Natural religion,” as it were is the religion of “all good men.” And it does not teach that God revealed the Ten Commandments to Moses. Reason never “discovered” or “confirmed” that.
Filed in The Belfry, The Bench, The Bureau
I’m curious (especially in light of the various recent “God shaped hole” threads) about this:
Do you have any quick pointers to texts addressing the “is concerned about human beings and will intervene” part? Minus that, the “there is a god and he grants us inalienable rights” stuff seems like more of the not-worth-arguing-about or concepts-to-metaphorical-to-matter kind of religious assertion. It’s the whole “intervening” part which seems to provide all the conflict, and be mostly about things like personally delivering the ten commandments and whatnot.
(Feel free to tell me to do my own damn research.)
I think this post is right on target and would add this: I think Scalia is dead wrong when he employs his originalism (since his textualism doesn’t get him to the answer he wants here) to ask “What would the founders have considered constitutionally acceptable?”
I think that’s a rather dreadful question, for two reasons. First, the Founders knew quite well that they didn’t have all the answers as to how their experimental republic would turn out. They were creating a brand new institution, and couldn’t possibly see just how it would work out, and I think they had the good sense to realize that. I think they’d find it a bit odd to find intelligent people 200 years down the road trying to pin down detailed answers to, “what would the founders have done if they had confronted this issue that never came up until long after they were dead and gone?”
Second, they were quite explicit that a Bill of Rights could not be complete–that no listing of the rights of the people could ever be comprehensive. So it’s quite foolish to say, “they didn’t list this as a right,” or “they didn’t see this as a right.”
I think a better originalism is to ask, “What were the Founders’ big ideals, and what resolution of this particular case would best further that end?” Because the Founders certainly wanted to pull the sectarianism of religion out of government, and the line between monotheism and polytheism turns out to not be a logical stopping point. Stopping there doesn’t further the Founders’ big ideals.
And, since Scalia seems not to be aware of it, there’s the question of whether Christianity is a monotheistic religion. I know the great majority of Christians think so, but others have a real hard time grasping that “3 = 1″ concept. I listened to a long rligious lecture by a Muslim shopowner in Syria last spring, and among other points (”How can God die? God can’t die!) he asserted his belief that Christianity was a religion with three Gods.
So if we’re going to use monotheism as a test in constitutional law, how can we be sure it doesn’t mean Islam can be favored over Christianity by the U.S. gov’t.?
Notice the phrases used by J. Scalia in addressing relevant activities in the “public forum” (whatever that is):
“government cannot favor”, “public acknowledgment of the Creator”, “One cannot say”, “one cannot offer”, “the Establishment Clause permits”
He starts with the on-point observation that there are limitations on government action, drifts into usage that clouds who the actor is and therefore what that actor “cannot” do, and finally eliminates the actor entirely leaving no one specifically accountable.
Even to a legal dilettante like me, this seems incredibly sloppy, especially for the supposed intellectual giant of SCOTUS. I am aware that it is a debatable issue, but to me it seems pragmatic to assume that all individuals, even government officials, can (and will) make personal statements with religious content even in their official capacity and that this is OK so long as they don’t claim to be making such statements as spokespersons for the government, or equivalently, for the people collectively in their role as citizens.
And given this distinction, it then seems reasonable to assume that individuals can post religious “stuff” anywhere that is arguably their “personal” space, even in their government offices. But it also seems unequivocal that such “stuff” cannot be placed in the public parts of buildings with the clear implication that it is the government placing it there and, by implication, “endorsing” the content.
Given that interpretation, it seems totally irrelevant what the history of the 10C is or what the founding fathers thought personally about them. Individuals can post them in their personal spaces, the government cannot post them in public spaces, whether they came directly from a monotheistic “god” or as part of an anonymous mass e-mailing.
And speaking as even more of a dilettante re philosophy than re the law, isn’t “reason … is where ultimate truth is to be found” awfully 18th C?
- Charles
Charles.
Re your last sentence, yes, and I’m glad you noted that. Whenever I speak of problems finding truth in revelation, I can always count on skeptics to agree. But when I note the Founders favored reason as determining ultimate truth over relevation, the skeptics usually don’t have a problem (though many religious fanatics do).
As I understand it, modern relativistic philosophy has a problem with 18th Century notions of “rationalism” — finding truth thru man’s reason unaided — as well.
In the 20th and 21st century it’s the neo-Thomists (mainly Roman Catholic philosophers like George and Finnis) who put so much stake in “reason” to determine objective reality.
My guess is that it isn’t “3 = 1″, a math concept, it’s “3-in-1″, a marketing ploy.
- Charles
Emile,
There are quotations about the intervening God I can offer. I’ll do that within the next few days. From my sense, the Founders put God’s intervention thru the lens of rationalism and tended to reject interpositions of Providence that outright broke the laws of nature (like parting the Red Sea) but were open to God intervening thru chance, playing dice with probabilities and the like.
You know, it is possible to get an A in constitutional law in law school without ever having read the entire U.S. Constitution. (Trust me, I know!)
Their politics stink, but the critical studies gang are right about the infinite pliability of the law as an instrument, to misquote Clausewitz, of politics by other means.
Of course neither textualism nor originalism will always get Scalia where he wants to get, but what is the alternative? Can the Court survive as an institution with any public credibility and authority once we all admit once and for all that it’s just making policy?
The Christian concept of the Trinity is not 3=1. It speaks to a unity of substance and purpose. Imagine, if you will, a family in perfect, ecstatic harmony. The polytheistic religions had gods with differing powers (and weaknesses), as well as differing interests, so they fought one another. The Hebrew God does not do that.
There are a couple of more details to the doctrine and I’ve oversimplified a bit, but that’s a good quickie response. And I won’t defend the large lots of well-meaning Christian people who have gotten this wrong over the years, so please don’t ask me to do so. Lots of cockamamie explanations have made this concept even more confusing to laymen and clergy alike.
As for God intervening, as well as the future state of rewards and punishments, and why these things were important, I come back to the oath of office. The oath meant that the magistrate was accountable to God, and the rights came not from the magistrate, nor even from the Constitution, but from the Sovereign Law of the Creator.
And since this keeps coming up… It’s not so much that religious sentiment is required to build morality (it’s not), but more so that religious fear is required to maintain accountability by those in power — since power tends to both corrupt the holder and oppress the subject.
Jon, I know you have these quotes:-) One of them appears at the Jefferson Memorial. Ben Franklin had a couple of them. George Washington claimed Providence intervened in the Revolutionary War. There are several. I look forward to your post on this (surprised you hadn’t written such a post already).
Finally, James Hanley wrote,
This is quite correct. But I think I have a better remedy than asking, “What were the Founders’ big ideals?” I prefer this…
Amendment IX - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In other words, always assume the power in question should be devolved to the lowest possible level, and limit the federal government to only those powers enumerated (clearly listed) in the Constitution. For example, by my count, there are only 20 things Congress is permitted to expend money for/on. There are, depending on who you consult, no less than three and no more than six federal crimes specified (drug laws, for example, are not on the list). A Constitution is not for grand visions, but for limiting government power.
So the real questions in this instance are, “Did Scalia expand and centralize government power?” and “Did Scalia ignore or go beyond the plain wording of the Constitution?” If he did either or both of those things, then he was wrong.
Personally, I think he built a very impressive house of cards.
Pet peeve alert. . . I would argue this thread’s posters really care about what the framers think, where I define framers as a subset of the founders. Using founders like I read in previous posts on this thread opens up consideration to what Thomas Paine or Patrick Henry argued, when I believe consideration should include only those founders who actually framed our republic, e.g., Washington, Hamilton, Adams, Madison, Marshall, arguably Mason, and a few others.
Jim,
I agree with your analysis of the trinity, but if you want to engage in a wholly futile exercise, try explaining it to a Damascus shopkeeper. ;)
D.A. wrote:
I wholly agree. That’s why I shifted my focus in grad school from constitutional law to things more empirial.
Michael, good pet peeve. I plead guilty. Although as I was writing I was thinking of Thomas Paine’s argument that we can’t be bound by the ideas of dead men.
“Can the Court survive as an institution with any public credibility and authority once we all admit once and for all that it’s just making policy?”
Wouldn’t it be more accurate to describe the process as “resolving closely contested policy disputes”?
In a constitutional democracy a final arbiter is needed and in ours that role is played by SCOTUS. As long as the more contentious disputes are resolved by 5-4 or even 6-3 majorities, I submit that the arbitration process is in good hands. IMO, those who want a SCOTUS with seven Scalia/Thomas clones should recall the adage “be careful what you wish for”.
But in any event, what’s a preferred alternative?
- Charles
I knew there was a reason I despised Scalia.