HEARTS | "moral leaders"

ANTONIN SCALIA : 10 of hearts
(CH, B) (what do these signs mean?)

Antonin 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.


Scalia's 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 seriously.

Government, 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."

Scalia 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.

Thomas 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, 1791.)

The 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.

Our 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.

For 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.

This 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.

The 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..."

Paul 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.

Civil 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.

Later, 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.

The 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.

Civil 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 less.

More 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 18, 2003)


But 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."

Government 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.

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