SCALIA : 10 of hearts
(CH, B) (what
do these signs mean?)
Scalia is universally regarded as the most intellectually
powerful conservative Justice on the Supreme Court.
He was also involved in establishing the "Federalist
Society," a group of lawyers and politicians claiming
devotion to the original intent of our Founders,
and disproportionately represented in the Bush administration.
Finally, he is a committed conservative Catholic. In
May, 2002, he published "God's Justice and Ours"
in First Things, an influential conservative
journal of religion and public life.
argument demonstrates the fundamental contradiction
between religious right views, be they Catholic or Protestant,
with the fundamental principles underlying our Constitution.
We apologize if this discussion is more difficult reading
than most of our others but unlike the mostly
ultra-light weights featured on our deck of cards, Scalia
is a serious thinker, and his ideas deserve to be taken
Scalia argues, is divinely sanctioned, and "derives
its moral authority from God." Government is God's
instrument of vengeance in the world. According to Scalia,
the emergence of democracy obscures this truth because
it is "difficult to see the hand of God [behind
those] we ourselves elect to do our own will."
was misread by some to be arguing against democracy.
Not necessarily. He could be defending a "Christian
democracy," the Christian equivalent of an Islamic
democracy, where citizens are free to rule themselves
within the confines of a particular theology. But Scalia
is arguing against the values underlying our
Constitution, which is grounded in the consent of the
governed, not Divine rule.
Jefferson, who was author of the Declaration of Independence,
close ally of James Madison, perhaps the chief architect
of our Constitution, and third president of the United
States, wrote "I consider the foundation of the
[Federal] Constitution as laid on this ground: That
'all powers not delegated to the United States, by the
Constitution, nor prohibited by it to the States, are
reserved to the States or to the people.' [10th Amendment]
To take a single step beyond the boundaries thus specifically
drawn around the powers of Congress is to take possession
of a boundless field of power, no longer susceptible
of any definition." (Opinion on National Bank,
16th Amendment strengthened the rights of citizens.
Inspired by the South's misuse of state power before
the Civil War (critics of slavery could be put to death
in some states) this Civil War amendment extended most
of the protection of the Bill of Rights to Americans
as citizens of their states as well as citizens of their
country. It undermined the entire logic of "states'
rights." States have no rights, citizens have rights
and states are charged with protecting them.
Constitution is based on the consent of the governed.
The principle of citizen consent is why government's
power is limited not only explicitly, but also implicitly,
as the Ninth Amendment clearly says: "The enumeration
in the Constitution of certain rights, shall not be
construed to disparage or deny others retained by the
people." All rights belong to citizens, and they
give only certain powers to government as their servant,
powers they can take back.
Scalia, government is sovereign, except for its subjugation
tom divine authority. But for Washington, Madison, and
Jefferson, the American people are sovereign, and the
divine authority that limits their sovereignty is itself
characterized by reason, not revelation. Our government
is not established by God to exercise authority over
us, it is established by us to serve us. Scalia got
it completely backwards because he interprets the Constitution
through pre-democratic Catholic and Christian theology.
This is the opposite of what the Constitution tries
to do, because it explicitly argues that religion must
be separated from the government.
point can even be put in theological terms: with the
American Revolution, God transferred political sovereignty
in this land from the British Crown to the American
people. The institutions the Constitution establishes,
the Presidency, legislature, and courts, are not sovereign.
We are. But Scalia misses this interpretation, presumably
because it violates his personal theology.
contradiction between Scalia and the reasoning of the
American Founders arises most clearly in his discussion
of civil disobedience which, as he puts it. "proceeds
on the assumption that what the individual citizen considers
an unjust law even if it does not compel him
to act unjustly need not be obeyed. St. Paul
would not agree..."
also urged slaves to accept their status as legitimate.
His views on slavery are as relevant to us today as
his views on civil disobedience. And as irrelevant.
disobedience is fundamental to the principles of our
government. The American Revolution began with acts
of civil disobedience as people refused to honor British
laws they believed to be unjust. When civil disobedience
was met with repression, the American revolution followed.
When the Alien and Sedition acts were passed during
John Adams' presidency, Jefferson and Madison promoted
what today would be termed civil disobedience: that
when government seriously over steps its proper bounds
there is no need to obey.
in New England, citizens refused to enforce the Fugitive
Slave law, although the Constitution itself supported
it. If an escaped slave made it there, he or she was
usually safe because no jury would convict. Henry David
Thoreau's essay On Civil Disobedience written
in opposition to an American initiated war against Mexico,
later inspired Gandhi's peaceful campaign to win India's
independence from Britain, and later, Martin Luthor
King's campaign against Southern segregation.
logic of civil disobedience directly challenges the
idea that government is sovereign. Rather, breaking
the law and willingness to pay the penalty was the final
peaceful action a minority could take in attempting
to persuade the majority, or the stronger power, to
listen, and to change.
disobedience is also in keeping with Madison's Federalist
No. 10, perhaps the greatest piece of writing to come
from debate over adopting our Constitution. Madison's
entire focus was on protecting the minority from the
majority. As such, he repudiates any concept of government,
or even a divinely sanctioned majority, being based
on Divine authority. The Constitution's provisions made
it possible for minorities to consent to its terms because
they would be protected by the separation of powers,
federalism, and the Bill of Rights. Government is a
tool, the best that we have come up with so far, by
which free and equal citizens can govern themselves.
It is nothing more than that. But neither is it anything
deeply than most, Scalia has pondered the relationship
of our Constitution to his conservative understanding
of Catholic Christianity. He cannot make it fit. He
supports the Bill of Rights (to a point) and explicitly
defends the Constitutional rights of minorities: "...that's
exactly what the Bill of Rights was intended to protect
-- the individual from the majority." (March
there is no way to harmonize this sentiment with his
conception of divinely derived authority. Scalia is
caught on the horns of a dilemma, and is bright enough
to sometimes be aware of it. His Radical Right admirers
are usually not, and simply repudiate our Constitutional
principles without ever addressing these problems. They
even mask their disloyalty to American principles by
calling themselves "patriots."
as servant of the people and government as God's
tool for exercising authority over the people
do not harmonize. This is not to deny that God exists
or that religion is true. But not just any understanding
is true. To be blunt, the meaning of the American Revolution
and our Constitution deny that Scalia's interpretations
are true. His arguments, and the crude caricatures of
them by men like DeLay,
Robertson, and Reed,
are not conservative. They are profoundly radical, and
subvert the common principles by which all Americans
of whatever belief can live together peacefully.