« previous post | Main | next post »
March 15, 2005
Justice Scalia's blooper
Don Herzog, Herzog: "A Christian Nation?": March 15, 2005
I finally got around to reading the oral argument in Van Orden v. Perry. That's the challenge to the Texas legislature's display of the ten commandments on the grounds of the State Capitol. (The display in question is a 6' by 3' slab of pink granite, which you can glimpse here.) Spare a moment, please, for unabashed celebration of equality under the law in this country: whatever you make of the merits, Van Orden is homeless and his license to practice law has been suspended, but there he and his cause are, before the high court of the land. The Supreme Court heard the case on March 2. From an exchange between Justice Scalia and the lawyer arguing that the display violates the establishment clause:
JUSTICE SCALIA: You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are.
(Laughter.)
The joke doesn't surprise me: Justice Scalia is frequently witty. But what followed is startling.
But first, let's back up. (These professors! always fussing over context.) Where does government get its legitimacy? Medieval Christian writers argued that the authority of the state descends from God. Modern theorists replaced that view with the claim that political authority ascends from the people. Thus the consent of the governed and social contract theory. You can see the transition in John Locke's Two Treatises of Government. Locke explains that when the government is oppressive,
the sufferers ... having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.
Before democracy, ordinary men and women were humble subjects, not proud citizens. Medieval theorists had asked what subjects could do if they were ruled by a harsh tyrant. They couldn't vote the scoundrel out of office. The theorists' answer was the appeal to heaven: they should pray and repent for their sins, and God would mercifully lift the scourge. Locke subverts their language, because he clearly means that the people should take to the battlefield. Yes, you can say he imagines that providence will award the victory to the deserving. But Locke's predecessors would have been appalled to see their language used to license civil war.
This wasn't just the nattering on of spacey theorists, either. It was real politics. In 1609, James I instructed his first parliament that
The state of monarchy is the supremest thing upon earth: For Kings are not only God's lieutenants upon earth, and sit upon God's throne, but even by God himself they are called Gods.
In 1624, James referred in passing to "Christ, in whose throne I sit in this part of the earth." His son, Charles I, ran into increasing conflict with Parliament over taxation and, later, control of the militia. So he turned to the glorious old tradition to build public support. Archbishop Laud's canons of 1640 directed English ministers to instruct the faithful, four times a year, that
The most high and sacred order of kings is of divine right, being the ordinance of God himself, founded in the prime laws of nature, and clearly established by express texts both of the Old and New Testaments.
Civil war broke out in 1642, and in 1649 Charles I was put on trial for his life. The Puritan radicals insisted he had violated his contract with the people. An imperious Charles bluntly rejected any such contract, refused to plead, and sniffed disdainfully that he was accountable only to God. They killed him anyway. Locke wrote the Treatises in part to urge a similar insurrection against James II, even though they weren't published until after the Glorious Revolution.
News flash, or, dubious blast from the past: like the medieval theorists, like the Stuart monarchs, Justice Scalia doesn't believe that political authority ascends from the people. Here's what follows his joke.
JUSTICE SCALIA: And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes — derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.
MR. CHEMERINSKY: I disagree, Your Honor. For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message....
JUSTICE SCALIA: It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people. And our traditions show that there is nothing wrong with the government reflecting that. I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.
There are different claims here. Justice Scalia appeals to "our traditions." He urges that the "vast majority" may "express its belief that government comes from God." (This blatantly implausible claim about what the vast majority believes reminds us why the law is reluctant to let judges take judicial notice of facts not on the record.) But — it bears repetition — he asserts in his own voice "that government comes — derives its authority from God." That, he tells us, is a "fact."
It may be a fact, though it won't astonish you to learn that I rather doubt it. But it is emphatically not the premise of our Constitution, which of course opens:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Yes, yes, the Declaration of Independence opens differently:
When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
Not even that language, though, means that government comes from God. At most, it means a morality underwritten by God permits the colonies to split away from the British empire and declare independence. But they will then be establishing their own government. Then too, Justice Scalia might have remembered Justice Marshall's imperative:
we must never forget that it is a constitution we are expounding.
There's a lot to say about what's right and wrong with the Court's current establishment clause jurisprudence, on which everything hangs on whether the government is endorsing religion. But there's no room in constitutional law for Justice Scalia's claim that political authority descends from God. He may believe it off the bench, and you may believe it too if you like. But our constitution and our constitutional law do not proceed on those terms. Sorry, but you win no points by observing that it's long been conventional for the preamble to have no legal force. Unless, that is, you can show me that the Declaration's opening does have legal force, and unless you can wring out of it some drips and drops of the descending theory of legitimacy. (Good luck.) And unless you can explain why the constitution vigorously rejects religious tests for holding public office.
And sorry, I'm not feeling paranoid or hysterical about this. I am not cowering under my chair waiting for the theocrats to whip me along to church, burn me at the stake, or put me in the pillory. Nor am I forecasting that after a few appointments from President Bush, the Court will rule democratic decision-making a blasphemous mistake and replace it with the will of God — even if the president has already volunteered his view that you need a "relationship with the Lord" to serve in the White House.
But I also think that the language we use in politics and law is crucial. It would be good if all of us — left and right, secular and religious — could agree that Justice Scalia, whose work on and off the bench I much admire, pulled a blooper.
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d834536ae669e200d8345832b169e2
Listed below are links to weblogs that reference Justice Scalia's blooper:
» Nino Scalia, by Grace of God Justice and Lord from Brad DeLong's Website
Don Herzog is weirded out by Nino Scalia: Left2Right: Justice Scalia's blooper: News flash, or, dubious blast from the past: like the medieval theorists, like the Stuart monarchs, Justice Scalia doesn't believe that political authority ascends fr... [Read More]
Tracked on Mar 15, 2005 2:23:13 PM
» The Divine Right of Nino from Preposterous Universe
Via Brad DeLong, Don Herzog at Left2Right is taken aback by a remark of Justice Scalia's during oral argument in Van Orden v. Perry (one of the Ten Commandments cases, from Texas). [Read More]
Tracked on Mar 15, 2005 4:10:17 PM
» Are you there God? It's me, Nino from dadahead
... none of this is particularly surprising coming from Scalia, whose defining characteristic is his tendency towards fascistic reasoning. The man despises democracy and civil rights. That he is on the Supreme Court at all is shameful enough; that he... [Read More]
Tracked on Mar 15, 2005 6:41:22 PM
» Scalia's disturbing view of government authority from Brendan Nyhan
Brad DeLong flags an important post by Michigan political science/law professor Dan Herzog on Left2Right in which Herzog catches Supreme Court Justice Antonin Scalia making the following astonishing claim: JUSTICE SCALIA: And when somebody goes by that... [Read More]
Tracked on Mar 16, 2005 1:45:39 AM
» Who Said That? from PBS Watch
Compare the paragraph above from [J.F.]Kennedy to this paragraph from Scalia. For a calibration of how far down the slippery slope the "Progressives" have "Progressed," note that Don Herzog of Left2Right discusses the latter paragraph under the hea... [Read More]
Tracked on Mar 22, 2005 8:03:27 PM
» Herzog on Scalia: Is the Justice a Theocrat? from Right Reason
In a recent post on the liberal philosophy blog Left2Right (always good reading; be sure to check it out), Don Herzog disapprovingly quotes the following remark from U.S. Supreme Court Justice Antonin Scalia during the oral argument in Van Orden... [Read More]
Tracked on Mar 23, 2005 12:21:45 PM
Comments
Posted by: Shag from Brookline
If Scalia believes that political authority descends from God, then how does he explain the differences in the political authority of the nations on earth? Or does he believe that God favors America's political authority over that of other nations? Does God have a policy of preemptive political authority approval under His Universal Religious Security Strategy (similar to Bush's 2002 National Security Strategy)? Is this a message from God's mouth to Scalia's ear? I can't hear you!
Posted by: Shag from Brookline | Mar 15, 2005 7:32:01 AM
Posted by: Richard Bellamy
Sounds to me like the authorities are consistent: government derives its rights from the people, and the people derive their rights from God.
Thus, Scalia is making an elision more than a "blooper".
Posted by: Richard Bellamy | Mar 15, 2005 9:12:18 AM
Posted by: Terrier
What is absurd about this is that it seems to imply that tradition justifies anything. So if grandpa was a Packer fan, you must be a Packer fan and so must all your descendants until the end of time. I can imagine Scalia recommending a lynching for a run-away slave in 1854 with the same kind of 'tolerant' confidence. I don't want to be tolerated! I am an American citizen and I deserve respect from my government. If the evil horde invades here to prevent my fellow citizens from exercizing their right to worship a diety I will gladly serve on the frontlines. Will those same worshippers speak up for my right not to believe?
Posted by: Terrier | Mar 15, 2005 9:39:01 AM
Posted by: D.A. Ridgely
Some justices see penumbrae, others see aureolae. It all depends on their chiaroscuroprudence.
Posted by: D.A. Ridgely | Mar 15, 2005 9:55:02 AM
Posted by: Tad Brennan
Richard Bellamy--
I suppose there *might* be a consistent theory to be had somewhere in that neighborhood, though without a lot more detail about what rights humans had from god and what rights they in turn pass on to govt it will be far too indeterminate to settle any questions.
But the real problem is: do we have any reason to think that this theory was the theory of any of the Framers?
Don Herzog has brought forward some historical reasons for thinking that the intellectual heritage of the Framers had explicitly rejected this route of derivation. Would you like to bring forward evidence to the contrary?
(It might be worth distinguishing two kinds of rejections, one more metaphysical and one more epistemological. The first would deny that human rights depend on theological underpinnings, or need any such dependence. The second could grant that they might very well do so, but that in light of human fallibility we can know so little about these theological underpinnings that for all political purposes we are pretty much here on our own. We have to use our ordinary unaided faculties to try to determine what our rights might be and how to move forward with them. Having done that, we might hope that the rights that we have identified do have the right sort of metaphysical underpinnings, whether those are to be found in gods, platonic forms, ethical universals, or what have you. We might say, e.g., that we were entitled to them "by the laws of Nature". Or if we were feeling somewhat more conciliatory towards religionists we might add the more or less vacuous "and of Nature's God", i.e. whatever notions of deism we can arrived at with unaided human reason, in the same way we arrive at our conceptions of our rights.
Don't worry--what I'm offering here is *intended* as unsupported speculation, so there's no point asking me for *my* evidence! That's why I teach in a philosophy department and they don't let me near the law school.)
Posted by: Tad Brennan | Mar 15, 2005 10:32:46 AM
Posted by: john t
D A Ridgely stole some of my thunder,OK so it's a zephyr. Some minds just work faster then others. I was thinking that Scalia's comments could be covered under emanations from penumbra leading to Kennedy's meaning of life. Now that's profound,as well as relying on respected judicial case law.
Posted by: john t | Mar 15, 2005 10:33:12 AM
Posted by: Don Herzog
David V has given us the immortal phrase "whataboutery." If your impulse on learning that Justice Scalia has said something this odd is to say, yeah, well, liberal justices have said really odd things too, then your partisanship is getting in the way of thinking.
Posted by: Don Herzog | Mar 15, 2005 10:40:58 AM
Posted by: duus
I think it's particularly interesting that Scalia takes a strong stand on being a strict constructionist, following the letter and intent of the Constitution and nothing more. This seems to be clearly in violation to this stance.
Posted by: duus | Mar 15, 2005 10:55:30 AM
Posted by: D.A. Ridgely
Hmmm, well my occasional superciliousness may be getting in the way, but not my partisanship. If I need to aver that I agree Scalia said something "quite odd" to demonstrate that point, I hereby aver it. Nino's a good Catholic boy who has probably read too much Aquinas for his own good. What can I say?
On the issue of "whataboutery," however, we non-liberal non-authors seem to be at something of a disadvantage when, after all, our function is largely reactive to the musings of the authors. One can't help but wonder how (or even whether) those authors' responses to a Right2Left blog might avoid the difficulty.
Posted by: D.A. Ridgely | Mar 15, 2005 10:58:15 AM
Posted by: pickabone
Mr. Bellamy,
2 questions:
If God granted man free will, is man not responsible for the granting of authority to the government? If an independent agent, however endowed by God with certain rights, takes action, is God responsible for that action, or is the agent?
Whether God grants authority to man, does man have legitimate standing to redistribute that authority to an insitution of man's own creation?
I think your elision is a rather over-generous interpretation of Scalia's remarks. And I doubt he'd agree with you.
Posted by: pickabone | Mar 15, 2005 11:01:53 AM
Posted by: Don Herzog
duus, Justice Scalia has disavowed "strict constructionism" and embraced what he calls "reasonable constructionism." And he has disavowed any interest in legislative intent or the intent of the framers or ratifiers of constitutional language. You might check his A Matter of Interpretation, a fun and smart read.
Mr. Ridgely, had I said or implied anything of the form, liberal justices are impeccably well behaved on the bench as a matter of jurisprudence, and Scalia is a characteristic right-wing crackpot, then skeptical observations about emanations and penumbras would be fine by me. But I didn't. I said in fact that I much admire Justice Scalia's work on and off the bench, and the reason I said that is that it's true.
Posted by: Don Herzog | Mar 15, 2005 11:09:06 AM
Posted by: D.A. Ridgely
Mr Herzog, I don't for a moment doubt your good faith here, I recall your positive comments in the past regarding Scalia, and I fully understand your and other authors' frustration when the responses to a topic amount to little more than a whining sort of schoolyard "I know you are but what am I?" Still, sometimes it seems to some of us in the non-left peanut gallery, whether you agree or not, that tu quoque-esque responses are called for, if only to provide a bit of perspective.
Now, however, I'll make what I hope is a more constructive comment; to wit (as the lawyers like to say), let's not go judging bench comments and questions as though they were decisional language (in which, for that matter, one often finds many "quite odd" statements, as well.) Justices think out loud, say provocative things, ask absurd questions, play devil’s advocate, take cheap shots and grandstand during oral argument. Much of such nonsense gets filtered out in the calm of private deliberation and chambers argument. If you want to suggest that Scalia holds dangerously unsound religious views which he inadvertently revealed in oral argument, fine. Perhaps so, perhaps not. But let’s not make too much of any justice’s off-the-cuff comments in oral argument.
Posted by: D.A. Ridgely | Mar 15, 2005 11:29:22 AM
Posted by: Don Herzog
Right, it would be even more unsettling had Scalia published something like this in US Reports. But I think it's unsettling for it to appear in oral argument, not least because when he votes to uphold the display, as he will, and his opinion, if he offers one, says nothing whatever about government's authority descending from God, he will inspire the cynical suspicion that he is too discreet to publicly resolve the case on the grounds he actually adopts.
Posted by: Don Herzog | Mar 15, 2005 11:35:47 AM
Posted by: miab
Richard Bellamy: "Sounds to me like the authorities are consistent: government derives its rights from the people, and the people derive their rights from God. Thus, Scalia is making an elision more than a "blooper"."
But that's not what he said. If to defend him, you have to pretend he said something that he flat out didn't say, you are agreeing that what he said is indefensible.
Scalia made the comment in a discussion of the ten commandments. These are top-down rules imposed by God upon the people. Government, in Scalia's theory, derives its authority in the same top-down manner.
He goes on to reaffirm the directness of the top-down grant of authority by describing this belief as the "belief that government comes from God, which is what this is about."
He thinks that a vast majority of Americans believe this, and that this is enough justification for the government itself to make the same theocratic claim.
He is very clear and straightforward about what he says. He is a clear thinker, and a clear speaker. If he meant to say that government derives its just authority from the will of the governed, who happen to have rights granted from God, then he would have said so.
Posted by: miab | Mar 15, 2005 11:37:44 AM
Posted by: David Johnson
That this point even needs to be made shows what a strange period of history we're living in.
Posted by: David Johnson | Mar 15, 2005 11:40:14 AM
Posted by: Sebastian Holsclaw
"Don Herzog has brought forward some historical reasons for thinking that the intellectual heritage of the Framers had explicitly rejected this route of derivation. Would you like to bring forward evidence to the contrary?
(It might be worth distinguishing two kinds of rejections, one more metaphysical and one more epistemological. The first would deny that human rights depend on theological underpinnings, or need any such dependence. The second could grant that they might very well do so, but that in light of human fallibility we can know so little about these theological underpinnings that for all political purposes we are pretty much here on our own. We have to use our ordinary unaided faculties to try to determine what our rights might be and how to move forward with them."
Has Don Herzog really done any such thing? The context of the founding was such that all but the most revolutionary thought that human rights derived from God. The fact that they chose a secular method of defending those rights is a function of their desire to avoid establishment of a single religion which could lead to religious warfare (as it often had in Europe). That is well known and well understood history, and I haven't seen anything from Don to contradict that. Scalia's statement alludes to that fact. It isn't the sharp contradiction that Don makes of it.
Posted by: Sebastian Holsclaw | Mar 15, 2005 11:59:37 AM
Posted by: miab
Terrier writes: "What is absurd about this is that it seems to imply that tradition justifies anything. "
Scalia would agree that this is what it implies, and would disagree that it's absurd.
He believes that whatever was the practice when the constitution, or any particular amendment, was ratified, is still justified, as a constitutional matter, today.
While as a practical matter he knows that certain things are too hot to touch, his philosophy of jurisprudence would consistently hold that all sorts of things that are horrible and ought, as a matter of policy, to be made illegal through legislation, are nonetheless constitutional if they were OK at the time of ratification. He has said so himself.
The odd thing in this particular case is that the textual evidence is so strong that the U.S. constitution was ordained by the People, not God. In this case he deviates from his own philosophy of constitional jurisprudence.
Posted by: miab | Mar 15, 2005 12:05:22 PM
Posted by: Bret
D.A. Ridgely: "tu quoque-esque", "penumbrae", "aureolae", "chiaroscuroprudence", ...
How about writing in English? Even the esteemed professors who run this blog seem to be able to stick to English. Some of us are having a hard enough time just typing your name correctly (it is quite a finger twister)...
Posted by: Bret | Mar 15, 2005 12:19:01 PM
Posted by: miab
Sebastian Holsclaw writes: "The context of the founding was such that all but the most revolutionary thought that human rights derived from God. The fact that they chose a secular method of defending those rights is a function of their desire to avoid establishment of a single religion which could lead to religious warfare (as it often had in Europe). . . . . Scalia's statement alludes to that fact. "
But it doesn't allude to that fact. You are declining to do him the same courtesy he does the constitution -- read the words and believe that he means what he says. He repeats, in clear straightforward language, what he thinks. There is no ambiguity here that justifies going outside his own words. If you can find other utterances or writings by Scalia that say that (a) the claim "government's authority comes from God" means the same thing as (or is shorthand for) (b) the claim "individual rights come from God," then you can say that here he was using that shorthand. Otherwise, give some respect to his clarity of thought and expression.
Scalia is making a very specific theological claim, plus a factual claim that a vast majority of the public believes that theological claim. You seem to agree that his actual claims are indefensible, and therefore are casting about for a way to re-form it as a more defensible claim.
I think D.A. Ridgely has taken the more principled approach here, by surmising that Scalia here was just being sloppy (again, implicitly disagreeing with Scalia's actual words). However, giving Scalia his due, I think he actually said what he meant. I have read enough of his speeches outside of oral arguments that it is clear to me he does in fact at least partially conflate governmental authority with God-granted authority. For good or for ill, the man is pretty good at saying what he thinks.
Posted by: miab | Mar 15, 2005 12:30:32 PM
Posted by: Tad Brennan
Sebastian Holsclaw--
DH may well not have given evidence for the portion of my speculation that you quote, but that does not constitute a problem for *him*. Ask him if he wants to sign onto any of my further thoughts; I doubt if he will.
What I ought to have said earlier is more like the following.
There is an important split between the view that rights bubble up from below, and the view that rights rain down from on high. (Rights, obligations, laws, etc.--the foundations of law in general).
But there is an equally important split between the view that rights, even any that rain down from above, must be discovered by unaided human reason, and the view that they can only be learned about by special revelation from a scriptural text. This is related to the distinction between natural theology and revealed theology.
When the founders rejected establishment, they also rejected scriptural authority. Without establishment, there are simply too many self-proclaimed scriptural authorities to choose from.
If this left them with Nature's God, i.e. the god of natural theology rather than revealed scriptural authority, then it also left them with Nature's Laws, i.e. an account of rights that is not based on revealed scriptural authority.
The controversy over the Ten Commandments and the Framers' attitudes towards them cannot be settled by deciding whether they were or were not religious, or whether they did or did not accept some role for divine foundations in morality and law.
For the Ten Commandments are, if anything is, a species of revealed theology, founded in a revealed scriptural authority. And a political role for revealed scriptural authority is exactly what they rejected in rejecting establishment.
So I might well agree with you that "The context of the founding was such that all but the most revolutionary thought that human rights derived from God." But since I also agree with you about the Founders' "desire to avoid establishment of a single religion", I think your point can never show that the Founders would have agreed with Scalia about the role of the Ten Commandments.
Scalia's comments were wrong, not because the Founders were strict secularists or atheists (they were not), but because they rejected this sort of role for revealed pronouncements from scriptural authority. Even if they thought that rights came from God, they didn't think one could or should find this out by trying to discern God's views from the scripture of one particular, politically sanctioned, revealed religion.
Posted by: Tad Brennan | Mar 15, 2005 12:33:58 PM
Posted by: Tad Brennan
Mr. Ridgely--
All of us non-authors (whether non-liberal or not) have a role here that is mostly reactive. They post; we kibitz. So when can I look forward to the launch of Right2Left, with threads started by Mona and D. A. Ridgely? You can count me among your first customers.
Posted by: Tad Brennan | Mar 15, 2005 12:37:16 PM
Posted by: pickabone
D.A.,
As you and I should both remember from a previous thread, this is not the first time Scalia has used this exact language with regards to the authority of the government. It can hardly be considering an "off-the-cuff" comment.
Posted by: pickabone | Mar 15, 2005 12:49:48 PM
Posted by: D.A. Ridgely
Sorry, Bret. There was a very weak joke hiding in all that puffery, but I'd be too embarrassed to try to explain it.
Since Mr. Herzog floated one cynical suspicion he worries about, let me offer an even more cynical theory (not that I believe it, but it's fun to ponder): Scalia and Thomas are favorites to be nominated to replace Renquist. Scalia is simultaneously playing for favor from the openly and notoriously religious Bush while laying a trap for leftist criticism, especially during confirmation hearings. (Nasal Boston-accented Senator: “So, ah, Justice Scalia, do you mean to, ah, tell this committee that you, ah, actually believe that law comes from God?” Scalia: “That’s correct, Senator. Are you suggesting that being a believing Christian disqualifies someone from being Chief Justice?” ) Oh, how it would play outside the Beltway!
Posted by: D.A. Ridgely | Mar 15, 2005 12:52:32 PM
Posted by: Sebastian Holsclaw
"I think your point can never show that the Founders would have agreed with Scalia about the role of the Ten Commandments."
My point can't show that. But the history of public 10 Commandment displays in the United States provides a strong suggestion that the founders would have agreed with Scalia about displaying them.
"All of us non-authors (whether non-liberal or not) have a role here that is mostly reactive. They post; we kibitz. So when can I look forward to the launch of Right2Left, with threads started by Mona and D. A. Ridgely?"
Can't speak to Mona or Ridgely, but there is a perfectly good and relatively popular political site with intelligent authors from both sides of the debate (at least in US terms) who regularly engage one another at ObsidianWings. (Apologies if the plug is inappropriate).
Posted by: Sebastian Holsclaw | Mar 15, 2005 12:56:24 PM
Posted by: Tad Brennan
Sebastian Holsclaw--
You have raised a new consideration, i.e. the "history of public 10 Commandment displays in the United States", in order to argue that the founders agreed with Scalia about the Commandments' role in grounding the Constitution and our rights in general.
That looks different from the point that you earlier raised, to which my second post responded, i.e. that " The context of the founding was such that all but the most revolutionary thought that human rights derived from God.....Scalia's statement alludes to that fact."
My response was that evidence that the Founders accepted *some* sort of role for divine underpinnings to political rights, laws, and so on, could not establish that they would accept the Ten Commandments as providing that underpinning, i.e. one brief excerpt, widely synopsized, from one particular revealed religion's scripture.
Does the history of what has happened *after* the Constitution was ratified (your "history of displays in the United States") really give us evidence of a comparable quality and relevance for trying to establish what the Founders might have thought *before* the Constitution was ratified? Your earlier argument from "context" seemed more apposite for that purpose--it was at least an attempt to meet Don Herzog's references to King Charles etc. on their own ground. This new post hoc evidence seems to shift the ground a bit. I'm not saying it is of *no* relevance, just that it is a different line of attack; have you abandoned your earlier line?
Thanks for the link to Obsidian Wings; I am certainly aware of the many media outlets that allow the Right to communicate to the Left. But there would be a special insight to be gained from the views of academic libertarians like D. A. Ridgely and Mona.
Posted by: Tad Brennan | Mar 15, 2005 1:24:51 PM