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.
5 comments:
Deacon,
Because as soon as the Mayor steps into his office, he IS the government. As soon as a judge enters a courtroom, he IS the government. This is because their decisions have legal weight and have the full backing of the government. When they go home, if they want to put a nativity scene and big marble block with the 10 commandments on their front yard with huge search lights and neon signs saying, "repent now, the world is coming to an end" they are individual citizens and perfectly within their rights to do so. They must be able to separate their faith from their jobs.
Beat me to the punch again Boomr... Don't you work (don't answer that).
Anyhow, I agree with what Boomr said, and as he so often does, he said it in a much more articulate way than ever could. Boomr and I came to an agreement a long time ago - while I am much smarter, he is much more articulate :)
I have no problem with individuals practicing their religion. And if the school allows Muslims to wear religious garb, but denies a Christian from wearing a cross, then the school is in the wrong. In fact, I feel the school should not be dictating what religious garb any student wears as long as it is not causing a distraction to other students. If a student wants to wear a cross... go for it. If a seik wants to wear his head dress... go for it. The Government should not be in the business of suppressing religion anymore than it should be in the business of endorsing it. But, school prayer, even if non-denominational, I think goes to far in endorsing religion. I always found plenty of time before and after school to pray. I am not sure why today's kids can't do the same...
Your analysis doesn't quite hit the mark.
You mis-read the relevant section of the First Amendment, I'm afraid. Here's what you 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."
You've missed the actual subject of the sentence, which isn't the word "religion" but the word "establishment". The phrase "of religion" tells you what kind of establishment the author is talking about. The word "an" is very singular. Words seldom get more singular than "an". You could rephrase "an establishment of religion" to read "one religious establishment" and be just as precise.
Keeping that in mind, Congress (and only Congress) is prevented from respecting an establishment of religion - one establishment. The authors prevented, by law, the nation from having an established church.
If you read the Amendment wrong, the rest of your analysis is wrong, too. Congress is not compelled to divest itself from any trappings of religion. It is simply prevented from favoring one religious establishment over another all others. It could, by the language of the Amendment, favor several religions at once if it so chose. In fact, the Amendment does not prevent state and local governments from favoring one religious establishment (though state constitutions might prevent that).
That's what Scalia meant when he said, "The Constitution says what it says and does not say what it does not say...".
Just to add to what Boomr said,
First, "An" when used before a singular noun that is followed by a restrictive modifier means "any", not "a" as in the 1st order of a class as you are using it. You cannot turn "an establishment of religion" into "one religious establishment." Instead, it would be "any religious establishment." Thus, government is still excluded.
Second, you cannot favor two religions and exclude others and be within the bounds of the constitution. I don't think any interpretation of the document could lead you to that logical conclusion. Even Scalia could not justify favoring Judaism and Christianity but excluding all others. And it does not matter how broad you use the definition of religion. I will give you an example:
Passing a law that puts "In God We Trust" on money is an "establishment of religion." Religion is the belief of a higher power or consciousness. Therefore, a belief in God is religion. God in the Christian, Muslim and Jewish faith, is a belief in mono-theism, one and only one god. There are many poly-theistic religions. Therefore, "In God We Trust" is an establishment of mono-theistic religion to the exclusion of poly-theistic religions which would read, "In the Gods We Trust."
You guys make me laugh. :)
How plain is the word "an"? It means "one". It is a "global" word in that it is non-specific in that particular sentence. It could mean "any one of a group" but it still means only one. So, regardless of how you define "establishment" or "religion", Congress is prevented from respecting one of them. I mean, if you tell me that you're going to go to a fruit stand and buy an apple from the pile, it would be very clear to me that you're going to choose one of those apples, not all of them.
You're straining English to make your point. I tihnk you could make a point for minimal government endorsement of religion in general, but you can't make it using the language of the First Amendment.
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