U.S. Supreme Court Justice Antonin Scalia said Tuesday that judges should look to historical practices when ruling on religious issues. (Link)So, does this mean we look to how our founding fathers viewed the separation of church and state? If so, the results do not support his positions. But wait, there is more...
Speaking at the University of Michigan, Scalia criticized judges for using what he called "abstractions" to interpret religious issues when they should be looking to the text of the Constitution itself.
"The Constitution says what it says and does not say what it does not say," he said.
Exactly, the Constitution says that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." It does not say an establishment of a religion, but of religion. That clause is all inclusive, not singular. For a constructionist to do his/her job, they must look at what each word means.
Religion is defined by the Marriam-Webster dictionary as:
b (1) : the service and worship of God or the supernatural (2) : commitment or devotion to religious faith or observance
2 : a personal set or institutionalized system of religious attitudes, beliefs, and practices
So, if you replace "religion" with the definition, you get, "Congress shall make no law respecting an establishment of the service and worship of God or the supernatural." This does not mean Congress cannot establish a single religion, but must void itself of anything to do with the service and worship of God or the supernatural. This does not mean it is ok to acknowledge god as long as it is non-specific. This includes "In God We Trust" and "Under God."
So, textual construction does not work. If Scalia then wants to turn to "historical practices," he runs into a whole host of new problems.
First, there were many founding fathers. Just like Democrats or Republicans, there were not a homogeneous group. As with any group you have many divergent beliefs. There is no way to look at the group as a whole and come to one concensus conclusion about how they foresaw religion as part of our government.
Lets look at James Madison in his Remonstrance of proposed legislation for Christian teachers to be paid for with public funds. Madison said:
"Because Religion be exempt from the authority of the Society at large, still less can it [religion] be subject to that of the Legislative Body... The Rulers who are guilty of such an encroachment [mixing state and religion], exceed the commission from which they derive their authority, and are Tyrants."
So, in Madison's own words, he considers anyone who would have the state cross the boundaries between church and state are tyrants.
Was Madison speaking only of Christianity when he talked about excluding religion, or did it go father?
Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.
So, again, we see by Madison's own words, that he was not merely speaking of Christianity or a specific sect, but of all religion. His statement, "we cannot deny an equal freedom to those whose minds have not yet yielded," means atheists are equally to be protected from the mixing of church and state.
But Religion is good and teaches us morals and gives us guidance in order to live our lives. Should not the state foster the benefits of religion in order to build a better society? Madison did not think so:
Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion...for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.
What Madison is saying here is that the Christian faith is bigger than the state. It existed before the state and exists in spite of the state. If religion is indeed a product of God, then there is no need for the state to support it. By the state becoming involved in religion, it in fact weakens the premises of faith in God. For someone to say that there needs to be a support of religion by the state means that their religion is not strong enough to support itself.
Many who feel that Christianity holds a special place in America because it was founded mainly by Christians are also rejected by Madison's words. Madison envisioned America as a place for all religions to prosper equally, without deference to any particular religion or sect.
Because the proposed establishment is a departure from the generous policy, which, offering an Asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens... Instead of holding forth an Asylum to the persecuted, it is itself a signal of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the [Spanish] Inquisition, it differs from it only in degree. The one is the first step, the other the last in the career of intolerance. The maganimous sufferer under this cruel scourge in foreign Regions, must view the Bill as a Beacon on our Coast, warning him to seek some other haven, where liberty and philanthrophy in their due extent, may offer a more certain respose from his Troubles.
There is nothing in the constitution that supports any connection with religion and the state. There is no consensus view of the founding fathers that there should be any connection between religion and the state. So, can Scalia be a strict constructionist and still find it ok for there to be any connection between religion and the state? Not a chance. If Scalia was really a strict constructionist, he would oppose any connection between religion and the state. Otherwise, Scalia is actually an "activist" judge.