Wednesday, January 26, 2005

Deconstructing the Constructionists

He is Strict, but He is No Constructionists

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.


Boomr said...

Exactly. Even from the mouths and pens of the unanimously Christian "founding fathers," the very beginnings of our country were marked by a stark reluctance to have the state ruled by religion, or vice-versa. To rule the country according to religious dogma is to become the opposite side of the coin from Iran, and would most likely further fuel the animosity against the U.S. that is felt by the fundamentalists in the Middle East.

I've said it before, and I'll continue to shout it from the mountaintop until my last breath: The primary functions of religion and government are completely mutually exclusive. Religion's purpose is to save souls, to promote INNER holiness, such that the "life ever after" is spent in glory rather than in flames -- thus, the goal of religion is securing the afterlife. Government's purpose is to protect the lives of its citizens and the property within its borders -- thus, the goal of government is securing the present life.

As for the claims of being a "strict constructionist," I have a couple of comments. First, there's a big difference between holding yourself to the intent of the drafters of the document (the technical definition of "strict constructionist") and holding yourself to a conservative moral attitude. There is very little about morality in the Constitution -- there are rights and freedoms and powers of the government, but little or nothing in terms of how an individual should live his daily life. "Conservative" -- especially in the religious-right sense of the word -- does not equate to "strict constructionist." Justice Scalia is a conservative, and is just as willing to bend the intent of the framers of the Constitution to his conservative agenda as are the more liberal Justices.

Second, there is absolutely no rational reason why laws written 200 years ago should be interpreted according to a "strict constructionist" analysis. The Constitution was created by men who envisioned the need for change -- thus, the inclusion of methods to amend the Constitution. Those men were also completely familiar with the British common law system of jurisprudence, in which written law was relatively sparse and was interpreted (and often created) by judges, the judges' rulings taking precedence over the literal reading of the laws. This is in stark constrast to the system of law in continental Europe at the time ("civil law," derived from the Roman system and still widely used throughout the world) in which the written law was paramount and the judges' interpretations were limited. Thus, the framers envisioned a judiciary that would interpret the laws over time. And just to include a bit of common sense, how can an eighteenth century legislator envision the needs of a twenty-first century state? Answer: he can't. To prove it, I give you an assignment: Draft a law today for use in the year 2205.

Again, as I've said before, a great variety of cherished rights have been "read into" the Constitution. The right to privacy (which encompasses the right to use birth control, among other things) is what is considered a "penumbra" in the Constitution -- a right that is not explicitly stated in the text, but is otherwise implied by the inclusion of other similar provisions (like the right to be free of unreasonable searches and seizures). If the Constitution were intended to be an all-encompassing compendium of laws, then there would be no need for the United States Code or the Code of Federal Regulations, voluminous collections of laws generated by the federal government.

Like Dingo said, the document states, "Congress shall make no law respecting an establishment of religion...." When Congress starts to legislate morality, it's necessarily establishing its close connection to a religious belief. The Supreme Court should continue to adapt the constitutional law to the changing times, and should continue (or strive harder) to keep religion out of politics.

Dysfunctional Deacon Peck said...

So, what is the big deal then with the 10 commandments being posted by an individual rather than the government...if a Mayor wants the commandments posted, then HE is not the government, so what is the big deal....

Boomr said...

Because when the individual is the Mayor, he is the government, especially when the display in question is intended to be on government property. The Mayor can post the ten commandments in every room of his house, in his personal car, in his wallet -- hell, he can even have them tattooed on his body. But the instant he displays those things in a government building, he is acting as the government in support of religion -- and not just religion in general, but one specific religion. Then it becomes a question of whether the people who don't ascribe to that belief feel that the Mayor's personal religious beliefs are being inflicted on them.

When one is elected or appointed to a government office, that person no longer acts as an individual in his business life, but acts as the state. It is not the province of the government to espouse a religious belief, so when a Mayor or a judge or a legislator posts religious writings on government property, it is the same as if the entire government were posting such writings. Then it's the government "respecting an establishment of religion," and it's expressly unconstitutional.

I'll put it to you this way: What if I were a judge and a devout Satanist? If I show up in court wearing robes that have a pentagram and selections from the writings of Alistair Crowley, wouldn't that make you uncomfortable? Why should it be more respectable because it's the religion that the majority of the country follows?

No establishment of religion means NO establishment of religion, popular or otherwise.

Dingo said...


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.

Dysfunctional Deacon Peck said...


Point taken...Just to let you know, variety in thoughts is what really makes the world go around...If everyone agreed on everything, that would make this world a very boring place and would eventually lead to the downfall of every nation...But, let me pose another question to you...Recently, (and unfortunately I have lost the link to the article) a high school in Tennesee moved to allow a Muslim teenager the right to wear her religious prayer scarf or Bhurka (spelling may be a bit off)...isn't this a case where government openly is accepting religious artifacts?

Just for the sake that you and I do not see eye-to-eye on a lot of things, if you don't mind, I will link to your blog from mine because your responses are actually thought out.

Boomr said...

I hope you don't mind if I comment, as well. In the case of the religious teenager, it's the second part of the 1st Amendment's establishment clause that is applicable: "... or prohibiting the free exercise thereof." There's a big difference between a government official putting up a religious icon in a government building, and a government PROHIBITING a citizen from the practice of his religion, even if that practice includes wearing certain clothes. That's especially true in the case of a citizen who is required to be at a government-run institution (like a student in a public school).

If the school had not allowed the teenager to wear the burka (or whatever it was), but had allowed ... say ... other students to wear crosses around their necks, or to wear yarmulkes on their heads, or to grow beards, then the government would be seen as specifically targeting for repression the one religion that required the burka. Then, it's not the case of the government supporting one religion, but it's the case of the government suppressing a religion. Either way, it's state involvement in religion, something I don't want.

Government can't promote religion in general or one religion in particular, nor can it prevent the practice of religion in general or one religion in particular.

Dingo said...

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...

Jimmie said...

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...".

Boomr said...

Personally, I don't see the difference between "an establishment of religion" and "establishment of religion." Either way, Congress is prohibited from making religious-based laws.

The word "establishment" is, I think, misdefined by Jimmie. He provides a link to the Merriam Webster Online Dictionary directly to "established church," which is referenced in one of M-W's definitions of "establishment." Yet it's the wrong definition of "establishment." The third definition of "establishment" is more appropriate in this context: "the act of establishing; the state of being established." Thus "an" establishment is not limited to the establishment of only one religion. One can establish multiple religions with a single act of Congress -- thus, "an" establishment doesn't mean the "seldom ... more singular" thing that Jimmie presumes.

Congress is not "simply prevented from favoring one religious establishment over another all others [sic]." It is prevented from establishing favoritism to religion in general. According to Jimmie's interpretation, Congress could pass a law requiring all citizens to be religious, as long as it doesn't mandate only one religion for the masses. This is complete bunk. Mandating religiosity (even if a plethora of choices is offered) is just as prohibited as establishing a single national church. Thus, Congress is, in fact, prevented from "favor[ing] several religions at once if it so chose," because favoring multiple religions is still favoring religion in general. This is where that pesky lack of "an" in front of "religion" in the First Amendment comes into play, and why it's dangerous to ignore its glaring absence.

So I, as a non-church going, non-religious citizen of the U.S., may not be compelled by Congress -- or anyone else for that matter, despite Jimmie's states' rights argument (states may expand constitutional rights, but they may not restrict them) -- to be subject to ANY religious laws. "An establishment of religion" means any law giving more credence to religion than any other system of beliefs.

And again, I can't get tired of saying it, why should the government be run by religious laws? Religion is a matter of FAITH for the INDIVIDUAL, not for the masses. Government is a matter of REALITY for the MASSES, not for the individual. The Bible itself says so -- "Give unto Caesar what is Caesar's." Leave heaven (or nirvana, or paradise, or the afterlife) out of government.

After all, who's to say that your religion will be favored by the government, anyway?

Dingo said...

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."

Boomr said...

And don't get me started on the "one nation under god" addendum to the Pledge of Allegiance. "One nation, indivisible" is fine with me.

Jimmie said...

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.

Boomr said...

I'm sorry, but you're just wrong. "An" is an indefinite article, and when placed next to an ambiguous term like "establishment" which can have multiple meanings, the word "an" takes on the connotation of "any," just like Dingo said. The text of the 1st Amendment doesn't say "the" establishment or "one" establishment, it just says "an" establishment.

Besides, even if it did say "one establishment of religion," like I said before, one Act of Congress (or one act of establishment) can "respect" multiple religions, and by the express language of the 1st Amendment such multiple "respecting" of religions in a single act would still be unconstitutional. The biggest modifier -- or lack of one -- is the absence of any article ("a," "the," "one," etc.) in front of "religion." This means that the entire concept of religion is expressly forbidden from the ambit of Congress's powers.

Show me one piece of legislation "respecting" multiple religions that has passed constitutional muster, and I'll shut up.

Boomr said...

Oh, and one more thing. To extend the apple metaphor, I agree with Jimmie that if I say, "I'm going to buy an apple," it means I'm going to buy ONE apple.

But, if I say, "You're prohibited from buying an apple," that doesn't mean you're merely prohibited from buying ONE apple (i.e., that you're allowed to buy more than one apple). It means simply you're prohibited from buying apples at all -- ANY apple.

Thus, when the 1st Amendment says that Congress is prohibited from making laws "respecting an establishment of religion," it means that Congress is prohibited from buying ANY apples, not just one apple. Again, even if Congress had said "THE establishment of religion" or "ONE establishment of religion," the effect would be the same, because any law that Congress passes would be one establishment, even if it may apply to multiple religions. "Religion" standing alone without any other modifiers is the entire concept of religion, not just one church or sect.

And how would you define "an" establishment of religion? Would Christianity be one religion, even though it has dozens of vastly differing sects? Would Mormonism be considered part of Christianity? What about Voodoo? Would there be different categorizations for Shia Islam and Sunni Islam? Since Judaism, Christianity, and Islam all share certain beliefs in the same prophets and books, would they all be considered one religion, three religions, or hundreds of religions? How does one start a religion from scratch?

The whole point is that religion is a realm of belief in the unproven, rather than reality. Government is not supposed to deal with anything other than reality, and the drafters of the 1st Amendment knew that.