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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.

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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


Posted by: D.A. Ridgely

Mr. Brennan: Aside from my being far too lazy to do such a thing, I fear that you'd probably not only be among my first but among my only commenters.

picabone: I don't doubt that Scalia is a committed Christian who believes that government derives its authority from God. As others noted, it doesn't follow that government might not also sufficiently derive its authority from the consent of the governed, whether they belive in the existence of God or not. Moreover, it doesn't matter what Scalia believes as long as his decision in such cases doesn't, itself, violate fundamental Constitutional principles. Scalia, like some other justices, occasionally speaks and writes in a nonjudicial and injudicious manner. Is that a good thing? No. Is it unusual or per se a threat to the republic. Nope.

Posted by: D.A. Ridgely | Mar 15, 2005 1:31:05 PM


Posted by: john t

I happen to think that choosing Scalia is a form of the immortal whataboutery,after all with today's court there is plenty to pick from. As to partisanship.why pick Scalia,or were lots drawn and his name came up?

Posted by: john t | Mar 15, 2005 1:37:37 PM


Posted by: D.A. Ridgely

Oh dear, here we go again! Thank you for the kind words, Mr. Brennan, but I assure you I am not now nor have I ever been an academic. Not only would I make a very, very bad one (and I can think of one or two professors who would probably testify to that effect gladly and at considerable length), I have certainly never sought to give the impression here that I was anything of the sort. Believe me, whatever other ills befall the contemporary academy, it would be even worse off with me in its ranks.

Posted by: D.A. Ridgely | Mar 15, 2005 1:40:05 PM


Posted by: Tad Brennan

Mr. Ridgely--

Come now--spare us your blushes. You have enough of the academic's characteristc virtues and vices (lazy, did you say?) that I think we can declare you a functional academic, you and Mona too, whatever your job titles may be. You certainly do a much better job impersonating an academic than Herzog, Velleman, Anderson et al. do impersonating political activists.

And really, if one had to find a political stance more divorced from the American mainstream than the left-wing philosopher's thoughtful liberalism, and one with an even slimmer chance of political viability, I don't know where else we would turn if not to the right-wing academic's thoughtful and consistent libertarianism. It is a lovely, nuanced, principled thing, and I like seeing how you expound it--Karl Rove would keep us both in cages, as specimens of endangered species too laughably ineffectual to threaten his ambitions.

Posted by: Tad Brennan | Mar 15, 2005 1:57:02 PM


Posted by: Sebastian Holsclaw

"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?"

Yes it does. A) the history of such displays both predates the ratification of the Constitution and is also found afterwards. B) the founders were well aware of that. C) if a reasonable interpretation of their words as understood at the time was that such displays should have been banned, they should have been banned at the time.

The idea that the interaction between words and actions can often lead insight to the meanings of the words as used is not exactly shocking. In a scientific definition of the word 'prove' or 'establish', such evidence does not prove or establish. But it is excellent evidence which strongly tends to establish a point. And it is as good as such evidence is ever likely to get.

Posted by: Sebastian Holsclaw | Mar 15, 2005 2:28:30 PM


Posted by: Chris

I think I'm with Richard. I don't think

(1) The government's authority comes from the people

conflicts with

(2) The government's authority comes from God,

especially if we think

(3) The people's authority comes from God.

(2) follows from (1) and (3); the Constitution upholds (1) but the Declaration upholds (3).

Don quotes the Declaration, but I don't think his gloss is right. The Declaration says that one people is assuming the station which the laws of God entitle them. God makes laws; those laws entitle a particular people to assume a particular station. I.e., that people's entitlement to assume that station comes from God, via his laws.

There might be a difference between (2), which speaks of the authority of government coming from God, and saying that the government itself comes from God. But Scalia's first statement that Don quoted talked about authority. "It's a symbol of the fact that government comes — derives its authority from God." Later he refers to "the majority's ability to express its belief that government comes from God," but it's plenty clear what he means, I think.

Posted by: Chris | Mar 15, 2005 2:39:08 PM


Posted by: pedro

What Tad Brenan said.

Posted by: pedro | Mar 15, 2005 2:39:42 PM


Posted by: Bret

Tad Brennan wrote: "So when can I look forward to the launch of Right2Left, with threads started by Mona and D. A. Ridgely?"

I've already asked D.A. Ridgely to start a blog and he turned me down too. I can make it even easier. I'll offer to start it and administer it. All you have to do is post. You can even email me the posts if you're too lazy to click a couple of extra buttons.

As far as Right2Left goes, there is a blog called Right Reason. David Velleman has actually posted comments there.

Posted by: Bret | Mar 15, 2005 2:41:25 PM


Posted by: pedro

Oops, sorry for the spelling error. I meant Tad Brennan, of course.

I'm not sure this blog is doing a great job of dispelling some of the negative ideas that people on the right have about academics, but I wish to say that it is doing a fantastic job of reconciling me with some people on the right. Prof. Herzog may be criticizing Scalia here--something we liberals are accustomed to doing and applauding, but he is also telling us that he admires his work, something that invites me to reflect on the image that I have of Judge Scalia.

Posted by: pedro | Mar 15, 2005 2:50:06 PM


Posted by: Don Herzog

john t writes,

I happen to think that choosing Scalia is a form of the immortal whataboutery,after all with today's court there is plenty to pick from. As to partisanship.why pick Scalia,or were lots drawn and his name came up?

And this too, I'm afraid, is a distressingly partisan impulse. I didn't "pick Scalia." Nor did I choose a Supreme Court justice to write about at random. I have an ongoing interest in religion and politics. Scalia just happens to be the person who just did something public and (by my lights) exceedingly odd about that. But I didn't choose him qua Scalia any more than I chose him qua Justice born in Trenton, NJ or qua Justice who most recently visited University of Michigan Law School.

Posted by: Don Herzog | Mar 15, 2005 2:51:25 PM


Posted by: Tad Brennan

Sebastian Holsclaw--

"The idea that the interaction between words and actions can often lead insight to the meanings of the words as used is not exactly shocking."

No, it is not shocking, and I did not deny it. Nor did I deny that what happened after Ratification can provide *some* evidence in this debate. There is no deep methodological dispute between us. My question was: is post hoc evidence of comparable quality and relevance, i.e. when compared to evidence about what happened *before*?

Don Herzog's evidence was drawn from earlier sources; your reference to the "context of the founding" in your first post made me think you meant to provide evidence of that vintage as well. Even in your latest you refer to displays that "predate". Such predating evidence seems to me generally a more substantial and weighty evidence than the history of what happened later on after the U.S. was up and running. (And evidence from the early years seems more apposite than evidence from the years after Demille's movie). Incidentally, could you direct me to evidence of the posting of plaques quoting the Ten Commandments on govt buildings that predates Ratification? No points off if you cannot, since I'm not contributing any evidence to this debate myself, but if you have it ready to hand I would be interested.

As to your argument: this goes to the heart of the court case, i.e. whether the Establishment clause precludes Ten Commandment displays, or some forms of those displays. (Jack Balkin had a good quip--he predicts that O'Connor will settle this case by upholding five commandments and striking down the other five.)

That is a good question, but not exactly on topic, given that the original post is about whether Scalia is right to say that the Founders thought that govt derives its legitimacy, and citizens derive their rights and obligations, from the kind of revealed religious authority symbolized by one short quotation from the Book of Exodus.

The Founders could, I suppose, have thought that neither govt nor the people derive their respective powers, rights, and obligations from revealed religious authority, while nevertheless thinking that the Establishment clause does not require the banning of such displays. I don't know whether that was their position, or whether it would have been a sensible one to take, but it shows the difference between the topic of your last argument, and the topic started by Don Herzog.

Posted by: Tad Brennan | Mar 15, 2005 2:57:55 PM


Posted by: dave

I hate to disagree here, since I fundamentaly disagree with Scalia, but I don't think anyone (including the founders) can possibly take the notion of "consent of the governed" seriously.

First, at the time the constitution was established, it was not consented to by all the people. Second, even if you pretend it was unanimously consented to, we all know that none of us, alive today, ever consented to the constitution. You cannot have true consent without the ability NOT to consent. Since we are all obligated to consent (or we are arrested for violating laws, imprisoned, or forced to leave the country) and cannot exempt ourselves, then we have not truly consented.

This does not mean that Scalia is right. Governmental authority does not come from "God" and it does not come from the people. Governmental authority comes from its protection of our fundamental rights. There are certain fundamental rights that we have regardless of government. By protecting those rights, government derives its legitimacy. Government is illegitimate when it fails to protect those rights or actively infringes on them.

This obviously doesn't change the fact that Scalia is scary wrong on this issue.

Posted by: dave | Mar 15, 2005 2:59:34 PM


Posted by: D.A. Ridgely

Mr Brennan writes: “[T]he original post is about whether Scalia is right to say that the Founders thought that govt derives its legitimacy, and citizens derive their rights and obligations, from the kind of revealed religious authority symbolized by one short quotation from the Book of Exodus.”

Well, actually three different versions of the decalog appear in the Old Testament: at Exodus 20:2-17, Exodus 34:12-26, and Deuteronomy 5:6-21. I don't know what version was on display and I’m not sure what the contemporary scholarly position on these three versions is, but it used to be generally believed that the Deuteronomy text was written 100 or more years after the first two in Exodus (which we might think of as the CNN and the Fox News reported versions.) And, of course, the text differs among the versions. So, even if we could all agree about state authority deriving from God; alas, we would still have those messy interpretive problems to grapple with!

Originalism, anybody?

Posted by: D.A. Ridgely | Mar 15, 2005 3:17:33 PM


Posted by: Peter Wizenberg

I wonder how Scalia would have responded if Chemerinsky had answered Scalia's assertion that "government...derives its authority from God" by quoting the Declaration of Independence that government derives its "just powers from the consent of the governed."

Whether a Creator endows us with unalienable rights is logically distinct from how or whether governmental power can be legitimated.

Posted by: Peter Wizenberg | Mar 15, 2005 3:22:51 PM


Posted by: etyger

The concept that authority derives from God is not the same as the concept that God wants us to live in a caste-based society. God wants insects to live in caste-based societies, because their reproductive systems support such a social organization. Human beings, like us, however, have a reproductive system (male and female) that motivates us to value individuality and therefore self-preservation. That being said, I offer you an alternative analysis of the Judge's comments.

Government authority derived from God is not inconsistent with government by consent of the governed because there is another concept that applies to the argument. That concept is that the 'spirit','will' and 'idea' of God is in every man, woman and child on the face of Earth. Government is a contract, or covenant, between humans who equally have God within themselves. I do not posit that men are more in possession of God than women, however, the larger numbers of men in high office is more likely due to the vicissituds of a world that has not yet found a way to live in peace, thus necessiting war, the practice and prosecution of war is man's inheritance in a more obvious and easily recognizable way than in women, though I do not doubt women's effectiveness in prosecuting war, only that the majority of blood shed in combat tends to be that of men.

The key insight, as I see it here, seems to be a lack of recognition that the 'consent of the overned' and 'authority from God' are /complimentary/ not /opposing/ principles.

This is such an obvious principle of life that even chimpanzee's obey God's will in this matter. When an alpha male exceeds his granted authority in troop disputes, the females of the troops will often attack the alpha in mass and force, recruiting the help of beta males to put the alpha 'in check'.

To quote Peter Hammerstein (Why is reciprocity so rare in social animals?, 2003),

"Most certainly, if we invested the same amount of energy in the resolution of all problems raised in this discourse, as we do in the publishing of toy models with limited applicability, we would be further along in our understanding of cooperation."

Posted by: etyger | Mar 15, 2005 4:04:54 PM


Posted by: Strange Doctrines

The problem with Mr. Bellamy's elision theory is that it makes the predicate "comes from God" utterly trivial. For on its assumptions, peanut butter and tennis rackets and TiVo and every other thing there is "come from God" in the same way government supposedly does.

Whereas I take it Justice Scalia meant to say something interesting.

Posted by: Strange Doctrines | Mar 15, 2005 4:20:57 PM


Posted by: Tad Brennan

Mr. Ridgely--

"three different versions of the decalog"

Oh great--thirty decalogs. Not only is there the numerical awkwardness, there's also the fact that "thirty decalogs" sounds like something you'd order at Home Depot in the pressure-treated lumber section. If that really were the foundation, at least it would explain why we call them "framers".

Etyger--

This sort of notion of God as natural law ("even chimpanzee's obey God's will") is exactly the kind of appeal to nebulous natural theology that will *not* show why the Ten Commandments, or a quotation from the Koran, or a snippet from Homer's Catalogue of Ships, should be considered the basis of our government. Maybe the founders thought government derived some of its authority, through some indirect route, from some deistic conception of god. But the jump from that to the Ten Commandments is unbridgeable, except by establishing one particular religion to the disadvantage of others.

Posted by: Tad Brennan | Mar 15, 2005 4:22:34 PM


Posted by: dave

there is no such thing as "consent of the governed." see my post above.

Both are myth's advanced because they are more comforting (authority form god)and easier to comprehend (consent of the governed) than other theories of governmental legitimacy.

Posted by: dave | Mar 15, 2005 4:25:43 PM


Posted by: Dallas

Blooper? I doubt that. Scalia's rhetoric is too precise to permit that bit of pyschobabblery.

He is simply affirming his conviction that manmade law is governed by natural law.

Posted by: Dallas | Mar 15, 2005 4:41:32 PM


Posted by: dave

Sebastian --

You wrote: "Yes it does. A) the history of such displays both predates the ratification of the Constitution and is also found afterwards. B) the founders were well aware of that. C) if a reasonable interpretation of their words as understood at the time was that such displays should have been banned, they should have been banned at the time."

I don't know the history of such dispays at all, but assuming A and B are true, I don't beleive that C follows.

A) The history of slavery predates the ratification of the constitution and is also found afterwords. B)The founders were well aware of this. C) We also have good evidence that the founders beleived slavery unconstitutional and a reasonable interpretation of their words at the time suggests that slavery was unconstiutional. However, slavery was not banned until much later.

Note: While it is not universally accepted that slavery was unconstiutional, there is strong support for the contention (most notably the fact that the constitution NEVER uses the word slavery)

Posted by: dave | Mar 15, 2005 4:51:35 PM


Posted by: etyger

Tad,

In what way does the overwhelming volume of verified data proving instinctual social organization qualify as 'nebulous natural theology'?

Maybe I'll seem obtuse in asking this question, but, why is the idea of 'God' and 'The Will Of the People' so incompatible and nebulous? Isn't common descent a foundational principle of democracy? You can call it 'the mandate of the people', you can call it 'the will of God', does the jargon so distort the underlying agreement as to nullify it? I don't believe so, I think it explains why the course of divorcing government from scripture was such a pivotal insight, it allowed us to move forward with the present God rather than shackling us to the way we understood God in the past. Freedom must always take precidence before tradition, religious or socioloical, or blood will surely flow, sooner or later. Thank God our Founding Father were able to accept it and design a document that accounted for it so boldy.

Posted by: etyger | Mar 15, 2005 5:01:20 PM


Posted by: Perseus

Even applying his "reasonable construction" rule, Scalia made a whopper of a blooper in saying "government comes — derives its authority from God." It's comparable to President Ford's blooper in the 1976 presidential debate when he said: "there is no Soviet domination of Eastern Europe."

Tad Brennan: Very judicious and quite right, though I would quibble about the Founders not being atheists (many were arguably closet atheists).

Posted by: Perseus | Mar 15, 2005 5:29:30 PM


Posted by: agm

dave, the Constitution did indeed handle the issue of slavery: the 2/3 rule.

Posted by: agm | Mar 15, 2005 5:44:05 PM


Posted by: Chris

Peter,

On the "consent of the governed" question, the Declaration seems to me to be on Scalia's side. It says that people are "endowed by their Creator with certain inalienable rights," including the "Right of the People ... to institute new Government." The Declaration concludes by "appealing to the Supreme Judge of the world for the rectitude of our intentions" and pledging to act "with a firm reliance on the protection of divine Providence."

Posted by: Chris | Mar 15, 2005 5:45:53 PM


Posted by: dave

agm--

The 3/5ths rule states that representation and taxation shall be "determined by adding to the whole number of free Persons, including those bound to service for a term of years, and excluding Indians not taxed, 3/5ths of all other persons."

Notice that it does not say 3/5ths of black persons, or 3/5ths of slaves.
Unless you are an original intent originalist (which no serious person is: not even Thomas or Scalia), we are not bound by the intent of the framers when drafting the constitution. We are only bound by the words they use. They used the term "other persons."

While it cannot be disputed that they intended slaves to be included as "other persons" we are not bound by this intent. We do not know why they didn't use the term "slaves," but they certianly were aware of the term, and if they wanted to be clear and unambiguous they could have easily used it.

Further, if "other persons" refers to slaves then slaves are people. Since people are endowed with fundamental rights to life liberty and property then slavery is unconstituional.


Posted by: dave | Mar 15, 2005 6:12:16 PM


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