Establishing My Religion

by hilzoy

I have been reading the oddest thing: Scalia's dissent in McCreary County v. ACLU (pdf). It's very peculiar in its own right, and even more peculiar as an illustration of originalist legal theories in action. McCreary County is one of the Ten Commandments cases that were handed down on Monday; it concerns a copy of the Ten Commandments displayed in a courthouse. The majority said that the display of the Ten Commandments in this case was unconstitutional. Scalia disagrees on various grounds; the one that interests me is his claim that putting up the Ten Commandments in a courthouse does not favor one religion over another (pp. 53-55).

I could understand (though I would not agree with) an originalist who said: look, what 'establish' means, in the establishment clause, is: to make some religion the official religion of the government. Via the fourteenth amendment, this extends to other units of government, like counties. But putting up a display in a courthouse is not an establishment of religion in this sense. So even if McCreary County had chosen to display the Catholic catechism, the Augsburg Confession, or the Qur'an, that would have been fine. Scalia does say that "governmental invocation of God is not an establishment." But for some reason he does not conclude that it is acceptable for a public building to display the text of some specific religion; only for such a building to display texts common to Christianity, Judaism, and Islam. (Why? I don't know about you, but I think the answer has to involve a penumbra or an emanation.)

I could also understand an originalist who tried to argue that displaying the Ten Commandments did not count as establishing a religion unless the display somehow indicated which of the several religions that take the Ten Commandments to be sacred it favored. But while that argument would be understandable, it would also be stupid and unworkable, not least because it would require a clear account of what counts as 'one religion'. (Is establishing Christianity OK so long as the government does not choose between Protestantism, Catholicism and Orthodoxy? Is establishing Pentacostalism OK so long as one does not specify which of the roughly 11,000 Pentacostal denominations now in existence one prefers? And so on.)

But Scalia does not rely explicitly on the claim that the Ten Commandments are not the province of any one religion either. Instead, he argues that because the Ten Commandments are viewed as sacred by Christianity, Judaism, and Islam, and because these three religions are the most popular monotheistic religions in the country, it is acceptable to display the Ten Commandments in a public building. And what I cannot understand is how on earth he manages to get this out of the text of the establishment clause in a way that even pretends to be consistent with his general views on legal interpretation.

(Note: I am not a lawyer, of course, but I am about to pretend. Be warned. It may not be pretty. Also: I started thinking about this because I was appalled by the idea that you could 'establish' anything on which Christianity, Judaism. and Islam all agreed; but as I thought more I ended up being more interested in the question: how did a smart guy like Scalia convince himself that what he says has anything at all to do with originalism?)

Scalia has already argued that various acknowledgments of God do not violate the establishment clause, citing not only legal precedents but, for instance, the fact that the Presidential oath of office ends with the phrase 'so help me God'. In the case of acknowledgments of God, he claims, the Constitution does not require neutrality between religion and its absence. Suppose we accept this for the sake of argument. One might still think that it would be wrong to acknowledge not just, vaguely, 'God', but the God of some particular religion (say, Christ.) And one might think that displaying the Ten Commandments was wrong in this way: it doesn't just acknowledge 'God' or 'religion'; it seems to endorse a specific religious text which many religions do not regard as holy.

Scalia argues that displaying the Ten Commandments does not favor one religion over another in this way. Here is his argument: He says that "the principle that the government cannot favor one religion over another" is "a valid principle where public aid or assistance to religion is concerned". However:

"it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. (...)

Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, "a tolerable acknowledgment of beliefs widely held among the people of this country." Id., at 792. The three most popular religions in the United States, Christianity, Judaism, and Islam—which combined account for 97.7% of all believers—are monotheistic. See U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004–2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint."

Or, in my summary:

(1) The framers, and others since then, did invoke and acknowledge God, so invoking and acknowledging God must be consistent with the establishment clause as they understood it.

(2) But invoking and acknowledging God necessarily favors monotheism over polytheism or atheism, where monotheism is understood as the view that there is one God who pays attention to human affairs.

(3) So any acknowledgment of religion that merely favors monotheism, so understood, over other religious views is OK.

(4) The three most popular religions in the US are monotheistic, and all of them acknowledge the Ten Commandments as sacred.

(5) So displaying the Ten Commandments does not favor one version of monotheism over others; it simply favors the major variants of monotheism over atheism and polytheism. It thus does not endorse a particular religion, and it is therefore OK on the same grounds as invoking God.

Several points about this peculiar argument. First, one way of trying to reconcile the establishment clause with the legitimacy of invoking God in (say) the Presidential Oath would be to say that it is permissible to invoke God, but that when one does so, one's invocation should be as inclusive as possible. If one must take a position on (say) the number of gods, then one must, but one should not exclude any religion unless one has to. This would allow us to recognize that public officials acting in their official capacity may take religious oaths, but would require that those oaths be constructed in such a way as to minimize the appearance that that official was endorsing a specific religion. This would be consistent with the historical facts that Scalia invokes, but it would imply that posting the Ten Commandments would be clearly illegitimate, since posting them does take a position on which religions are legitimate when none is needed. Since Scalia comes to the opposite conclusion, his argument cannot turn on the question, what is the minimum amount of specificity one needs in order to invoke God in certain acceptable ways?

Second, while Scalia may be right when he claims that "historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion", he is wrong about what it implies. Scalia interprets the 'acknowledgment of a single Creator' to mean the acknowledgment of monotheism, which he defines as the belief in a single God who concerns himself with human affairs. Scalia's reason for saying this is that "one cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs." It is true that one cannot ask for God's help, and mean this as a literal request, without contradicting the view that God or the gods play no role in human affairs. But one can say 'God' or 'the Almighty', or thank Him, without making any assumption at all about His interest in what we say. One can also pray for help and understand one's prayer to be a disclosure of one's finitude and fallibility, or an acknowledgment of one's dependence on God, without making such an assumption. This is an understanding of prayer that was well-known in the Eighteenth century: one school of thought at the time held that God's will was unalterable through prayer, since He had already willed the best and could not without contradiction change His mind; and thus that the point even of petitionary prayer had more to do with us than with producing an effect on Him. So it seems to me that as a statement about what those who wrote and ratified the establishment clause must have meant, Scalia's statement is wrong.

If monotheism is understood simply to mean the view that there is one God, without the part about his concern for human affairs, then Deism is a form of monotheism. Deism, according to Merriam-Webster, is "a movement or system of thought advocating natural religion, emphasizing morality, and in the 18th century denying the interference of the Creator with the laws of the universe." And Deism is not just a hypothetical counterexample: some of the Framers were Deists, and thus would plainly have recognized Deism as a form of religion. If monotheism includes Deism, however, then it is not true that all forms of monotheism (or: all that we are familiar with) accept the Ten Commandments as sacred. Deism specifically rejects revealed religion in favor of a God known through the light of reason. Thus, it rejects the view that the Ten Commandments were given to us by God.

So: Scalia cannot support his position using the argument that government officials acting in their official capacity are entitled to invoke God in certain ways, and when doing so requires that they say something that takes a specific religious position they can take it, but that they should not take any specific religious positions that are not so required. Nor is there any obvious reason why he defines 'monotheism' as he does, in apparent disregard both of the views of the Framers and of the theology current when the Constitution was drafted. If he defines 'monotheism' more broadly, however, then he cannot move from the claim that acknowledgment of monotheism is acceptable to the claim that displaying the Ten Commandments is acceptable.

Instead, his argument seems to turn on his quote from Marsh v. Chambers: invoking God is "a tolerable acknowledgment of beliefs widely held among the people of this country." As I see it, Scalia simply ignores the word 'tolerable': he never asks what makes one invocation of popular beliefs 'tolerable' and another not. (I think the most obvious way to answer this question would be to say: an invocation of God is tolerable only if it is not needlessly specific about which God is being invoked. Invoking 'God' is tolerable; invoking 'our Lord Jesus Christ' is not, despite the fact that Christianity is a belief widely held among the people of this country.) Instead, having moved from the claim that we can invoke God to the claim that we can favor monotheism construed in his peculiar way, he takes this quote to mean that we can favor that set of monotheistic beliefs which is widely held among the people of this country. Since Christianity, Judaism, and Islam together account for 97.7% of all believers, any invocation or acknowledgment of God that favors that set of religions above all other religions is acceptable.

Now: this is a pretty strained argument for anyone to make. But it is an argument that ought to make Scalia, in particular, run screaming from the room in horror. For there is just no way that one can take the literal, original meaning of "shall make no law respecting an establishment of religion" to be: shall not favor any religion, unless it is a (set of) monotheistic religion(s) that is widely held in this country.

***

The relevance of the framers' oaths and thanksgivings is also an interesting case study in the problems of taking this sort of evidence to be relevant to Constitutional interpretation. Scalia thinks it's clear:

"It is no answer for JUSTICE STEVENS to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” Van Orden, ante, at 18 (dissenting opinion). The Establishment Clause, upon which JUSTICE STEVENS would rely, was enshrined in the Constitution’s text, and these official actions show what it meant." (emphasis added.)

I disagree. The claim that the framers thought that favoring monotheism over other forms of religion was OK cannot be read off from the fact that they did, at times, favor it. If the framers felt comfortable invoking God (in the singular), that might be because all the religions they were acquainted with were monotheistic, and so, to them, invoking God did not favor any religion above any other. This seems unlikely, since the framers were familiar with polytheistic religions, for instance those of the Greeks and Romans, and of various peoples mentioned in the Bible. But they might legitimately have assumed that since no one held these beliefs any more, they did not need to be taken seriously, or accommodated by public officials.

Things get trickier when we ask: but what about any polytheistic religions held either by Native Americans or by African slaves? The framers might, I suppose, not have heard of these. Alternately, however, they might have been acquainted with them, but not have felt that they needed to be taken seriously. And their reason for thinking this might not have been that these polytheistic belief systems were not, in fact, religions, but that they were (so I imagine the framers thinking) silly religions held by people whose humanity, let alone their religion, was not taken fully seriously. The thought, that is, might have been not: those aren't really religions, but something more like: those people and their beliefs don't really count.

Likewise, while atheism was not unknown at the time, it was regarded by many people as something no serious person would actually believe, like one of those views held only by obnoxious brainy high-school students who hold them to annoy others, or to make themselves feel like fearless intellectuals. When I was in high school, I knew someone who seriously maintained that no work of literature was better than any other, because he thought that value judgments were 'unreal'. He just loved hearing himself say that. I thought that the idea that there was nothing to choose between Charlotte Bronte and a Harlequin romance was one of the stupidest things I had ever heard. In 18th century Britain and America, most people thought of atheism that way, and they also thought of atheists as people like the guy I knew in high school. Such a view might also seem like something one might safely discount.

Of course, the idea that one need not take certain religions seriously in interpreting the establishment clause is arguably inconsistent with that clause itself. But it is not clear that we should not attribute it to the framers on that ground. It is also inconsistent to say that all men are created equal, but that some should count for only three fifths of a man. (And the fact that the first statement is in the Declaration of Independence, not the Constitution, is not dispositive if we are trying to figure out what they meant; presumably most of the people who wrote the Constitution also endorsed the Declaration.) Moreover, it is exactly the same sort of inconsistency: the sort that comes from not having taken the humanity of some people seriously. People who don't take the humanity of some others seriously do not deny their humanity. As (I think) Stanley Cavell said somewhere: the slaveowner wishes to be served his dinner by a black hand, not a black paw. It just fails to register with them on certain occasions. And when it fails to register, contradictions that depend on noticing it can also fail to register, and remain unaddressed and unresolved, even if those contradictions seem obvious to us.

If the right explanation for the framers' invocation of God, in the singular, was not that they were not aware that there were alternatives to monotheism, nor that they did not realize that some people in the United States adhered to those other views, but just that they thought that neither slaves nor Native Americans really counted, and that atheism was not worth taking seriously, then their practice would not have shown that they thought that favoring monotheism above other religions was OK. It would, instead, have rested on a view about the moral status of non-Europeans, and on the intellectual respectability of atheism, which most people in this country have rejected, and which could in any case not serve as a basis for Constitutional interpretation.

So, in Scalia's place, I would be wary of concluding too much from the framers' oaths and thanksgivings. Figuring out the original meaning of a text is hard, and one cannot conclude anything from the fact that the founders invoked God, in the singular, without doing a lot more intellectual history. However, I don't think you need to do much work at all to see that whatever the original meaning of the establishment clause was, Scalia's dissent is wrong about it.

Comments

[Jackmormon]

The claim that the framers thought that favoring monotheism over other forms of religion was OK be read off from the fact that they did, at times, favor it.

Did a word get dropped here? (See how careful a reading this post demands!)

I'm still working out my reaction to this dissent, so it's back to Balkin and Volokh for me, but I have to highlight this--

while atheism was not unknown at the time, it was regarded by many people as something no serious person would actually believe, like one of those views held only by obnoxious brainy high-school students who hold them to annoy others, or to make themselves feel like fearless intellectuals.

--and say, perfect.

[Francis/Brother Rail Gun of Reasoned Discourse]

This is such a classic constitutional issue. What does "establish" mean? What is the impact of the 14th amendment in incorporating the prevention of establishment against the states?

Scalia, a devout Catholic, studiously ignores the fact that many Founders were Deists. (the words "deism" and "deist" are not to be found in his dissent.) And his fond recollection of that evil secular europe (wow, talk about going beyond the record!) demonstrates clearly his intolerance of secularism.

His entire dissent is based on that intolerance. "Establishment" is therefore construed to have the narrowest possible meaning, even if the word "god" itself must be tortured into meaninglessness.

Scalia is a fine scholar and a deep thinker. He is also just as guilty as the rest of the Court in using his tools of constitutional interpretation to fit his desired result.

I look forward to SH's defense.

[liberal japonicus]

like one of those views held only by obnoxious brainy high-school students who hold them to annoy others, or to make themselves feel like fearless intellectuals

I wonder what percentage this applies to the blogosphere? (left and right)

[hilzoy]

Jackmormon: one of several words I inexplicably left out; and each time I found one, I edited, and it took forever. That one, iirc, was 'cannot'. As in: cannot be read off.

[Bernard Yomtov]

Good post.

Let me add that Scalia's "97.7% of all believers" argument is utter BS, aimed only at making a pretense of inclusiveness.

Suppose the relevant symbol were something other than the Ten Commandments, one that had religious significance to 95.4% of believers. Would the argument be just as good? According to the same table Scalia cites, 95.4% of believers are Christians. Does that justify putting up a cross? Of course not. Is the difference in percentages the reason, or are there more fundamental ones?

Two other statistical points bear mentioning. First, Scalia conveniently neglects the substantial number of people, about 20% of the adult population, who do not provide a religious identity. So "97.7%" becomes more like 78.5%. Second, Islam is in the top three only by a hair. There are very nearly as many Buddhists as Muslims in the US. If there get to be more, what happens to "the big three" argument?

Of course this goes to the heart of the historical argument. The religious practices and attitudes of 200 years ago, or even 100 years ago, derived from the fact that beliefs were much more uniform then than now. That made it easy to live with the contradictions hilzoy describes between the First Amendment and actual practice. It also made it more difficult for members of minority religions to challenge these practices. Scalia may not like the fact that things have changed (though as a Roman Catholic he might reflect that, except for Taney, no Catholic was named to the Court befor the 1890's), but they have.

[hilzoy]

Bernard: I think your first point is good and crucial. I can't see any way of specifying what 'widely held' means that's not arbitrary. About the second: Scalia seems to think that he need only consider monotheistic religions, since that's what the framers plainly thought they could invoke. Since Buddhism isn't monotheistic, or arguably theistic at all, I think he'd rule it out on that count.

Jews are included, according to Scalia, because of Washington's letter to the Hebrew Congregation at Newport. (See pp. 58-9 of the decision.) (Although why this letter would be relevant escapes me: I thought originalists, as opposed to original intent people, were concerned with the actual text of the Constitution. And besides, the part of the letter Scalia quotes talks only about the free exercise of religion, not about establishment.)

I think Muslims are just an easy add-on for Scalia; I can't for the life of me see how his argument would change if they were excluded. Nor, if it worked to start with, do I see, as you point out, why it would not be wrong to post clearly Christian things all over the courthouse walls. -- I mean, it's just a dog of a dissent, in my humble non-lawyerly opinion.

[Jackmormon]

Jack Balkin's scathing post also disputes the statistic Scalia cited. He directs a fair amount of his wrath at the idea that the monotheists would all also be Biblical literalists.

(Thanks for clearing up that sentence, hilzoy!)

[felixrayman]

This piece is hilarious. Hilzoy, do you really think the Constitution of the United States means anything to Scalia other than something to wipe himself with after he defecates? Do you really think it has any greater meaning than that to anyone with power to do anything about it?

It's a piece of paper. It means nothing. I used to believe differently, I no longer do. If I run out of toilet paper, I will have a use for such documents. In the real world, power is not constrained by such niceties, whatever you or I may wish.

[ral]

The Oath of Office in the U.S. Constitution does not mention God.

Clause 8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

George Washington added "so help me God," I believe, and it has been a tradition ever since.

[CharleyCarp]

I have to say that I think that the http://straylight.law.cornell.edu/supct/html/03-1693.ZC.html>opinion of Justice O'Connor is a thing of beauty.

[rilkefan]

I'm establishing a new religion, by the way. Anyone wishing to help out with the text is welcome. (The link is a reaction to a spat with Mark Kleiman - a subspat of his disagreement with PZ Myers.)

[hilzoy]

rilkefan: that's gorgeous. If actual belief is not required, can I join?

Also, did you look at the 'Destroy the world' link on my 'Ceci N'Est Pas...' post? I was curious about whether the physics actually made sense. (Plus, if you haven't, it's funny.)

[ral]

rilkefan, I'm glad to see your numbering starts at 0.

[liberal japonicus]

I'm establishing a new religion, by the way. Anyone wishing to help out with the text is welcome

Book O Chapter O? Rilkefan, you traditionalist, you. You should have version numbers, a FAQ, common workarounds. They it would truly be a religion for our times.

(just teasing, which I have to do in lieu of being poetic)

[rilkefan]

hilzoy, I need writers and prophets first - belief comes after. I'm sure anything in the book of hilzoy would be canonical.

You may not have heard of rec.arts.pave_the_planet or something along those lines - it was devoted to discussions of practical ways to destroy all life. I thought 10 years ago that the idea of Neumann machines on the ocean floor building hydrogen bombs along all the plate edges would work, but having learned a smidgen about bacteria since I don't believe anything less than a program to Neumann everything non-molten would do, barring exotic physics like highly-bound strange matter or portable black holes, which I think would still present enormous engineering hurdles.

ral, my second book of poems will be titled _Counting From Zero_ and will hopefully contain mostly poems that do so.

[Gary Farber]

The usual sort of thing here. Needless to say, Catholic, Protestant, and Jewish, "Ten Commandments" aren't the same. To put one up somewhere is to choose one over the other. Not to mention that people actually also believe yet other core beliefs.

And equally crucial: the public square is not the government square, and Christianity is free to be expressed everywhere in the public square that doesn't require government endorsement. This is the point that ignoring of drives me particularly crazy. There's nowhere in America that Christianity isn't fine to display and endorse and worship in public, save those few places where someone demands the government also endorse it. This is so plain on the face of it that I have to remind myself that there are a few folks who truly don't grasp it, beyond the deliberate obfuscators.

[Gary Farber]

"...but having learned a smidgen about bacteria since I don't believe anything less than a program to Neumann everything non-molten would do...."

I've not even caught up on this sort of thing since Greg Egan made nice about it fifteen or so years ago. (I thought of linking to his page, after five seconds, but another five seconds showed it full of Javashit, so I didn't.)

[felixrayman]

the public square is not the government square

Nonsense, in the real world, there is overlap between the two.

[Tad Brennan]

hilzoy--
"This is an understanding of prayer that was well-known in the Eighteenth century: one school of thought at the time held that God's will was unalterable through prayer, since He had already willed the best and could not without contradiction change His mind; and thus that the point even of petitionary prayer had more to do with us than with producing an effect on Him."

This, like many of the most noble aspects of Enlightenment Christianity, was a direct borrow from pagan Neo-Platonism:

"When we sin, God doesn't “turn away” or “become angry” or “separate” himself from us; and when we repent , God doesn't “turn back” or “approach” us because we have become good. These are all human attributes, and remote from divine blessedness, which is unchangeable in every respect. Rather it is we who tear ourselves away from there when we have become bad by our fall into an unnatural state, and have become unlike divine goodness by becoming unjust, impious, and devoid of wisdom….
We describe our turning back towards him, as though it were his turning back towards us. Our experience in this is similar to that of people who tie a rope around a rock at sea, and draw themselves and their vessel to the rock by pulling on it, but, owing to their inexperience of the event, think not that they are approaching the rock, but that the rock is little by little coming to them. Acts of repentance, entreaties, prayers, and the like correspond to the rope, since it is by them that people who have been pulled away achieve their turning back."
(Simplicius, "Commentary on Epictetus' Encheiridion" pp. 389-390 Hadot; pp. 107 Dübner)

[cleek]

rilkefan, may i suggest numbering lines as multiples of ten - in case you need to add new lines later.

20 GOTO 10

[Tad Brennan]

Historical curios aside--

Isn't Scalia's argument "peculiar" in the sense of "grossly invalid"?

E.g.

1) Employment discrimination legislation says I can't discriminate among applicants.
2) But even the legislators who drafted it always made a habit of hiring *human beings* in preference to gazelles, crayfish, and protozoa.
3) So the mere preference for *human beings* over other species cannot be an impermissible discrimination
4) The three largest groups of human beings here in Minnesota are Swedes, Finns, and Norwegians, and they're all Scandinavian.
5) So a policy of hiring only Scandinavians does not discriminate against some kinds of human beings; it simply favors the major variants of human beings over gazelles and crayfish.

The plain text of the Amendment requires utter neutrality between monotheism, polytheism, and atheism. Scalia's favorite brand of creative interpretation ("what shall we make the Constitution say today?") claims that the historical practice of the drafters lets us narrow that down to monotheism. But even if *that's* true, it does not license him in narrowing down even further, fishing among the various kinds of monotheism for the "Judeo-Christian" ones, to the exclusion of the neo-Platonist ones, the divine watch-maker ones, etc.

His principles get him to monotheism, and that's all. The further fact about what sorts of monotheists are represented in what sorts of numbers hereabouts these days is as completely irrelevant in the religion case as is the fact about what sorts of human beings are represented in what sorts of numbers in Minnesota.

Scalia writes:
"Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion".

Yup, that's right; there is a distance. And as soon as you travel from mere "ceremonial deism" (e.g "in God we trust") to posting a piece of prose from the scripture of a revealed religion, you have traversed that distance.

It cannot be sufficiently emphasized, I think, that the Ten Commandments are considered by their proponents to be a piece of **revelation**. This is not "the laws of Nature and of Nature's God"--that kind of deism ends at natural theology.

Yup--it's a dog. And it also reveals one of Scalia's main problems: he's a smart guy, but his brain falls out when religion enters the picture.

[hilzoy]

Tad: Great quote above, and great analogy. I think it's exactly right. I also think there's a lesson here about originalism, which may be easier to see because the conclusion is so absurd.

[CharleyCarp]

There's nowhere in America that Christianity isn't fine to display and endorse and worship in public, save those few places where someone demands the government also endorse it.

and

the public square is not the government square

Nonsense, in the real world, there is overlap between the two.

Y'all realize, of course, that you're fundamentally in agreement. What makes the PS into the GS is the never ceasing demands by a significant faction that G endorse their religion, in as P a way as possible.

We'll have yet more of this to look forward too if SDO retires, as her replacement will be selected to join the 4 justices already on board with 'endorsement is not establishment.' States and counties will compete to see which gets to have the boldest endorsement of Protestantism get through the new court.

I guess we need to know if rilkefan's religion has the God worshiped by the 3 branches of middle eastern monotheism.

[CharleyCarp]

I don't know why it took me so long to realize it. Only when I wrote the above did it really connect for me that Mr. Justice Scalia is attempting to enforce the commandments.

In God's Own English (the KJV), Exodus 20:3-6 reads:

3 - Thou shalt have no other gods before me. 4 - Thou shalt not make unto thee any graven image, or any likeness [of any thing] that [is] in heaven above, or that [is] in the earth beneath, or that [is] in the water under the earth: 5 - Thou shalt not bow down thyself to them, nor serve them: for I the LORD thy God [am] a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth [generation] of them that hate me; 6 - And shewing mercy unto thousands of them that love me, and keep my commandments.

[CharleyCarp]

Speaking of Exodus 20, when will some county have the balls to post this in their courthouse:

22 - And the LORD said unto Moses, Thus thou shalt say unto the children of Israel, Ye have seen that I have talked with you from heaven. 23 - Ye shall not make with me gods of silver, neither shall ye make unto you gods of gold. 24 - An altar of earth thou shalt make unto me, and shalt sacrifice thereon thy burnt offerings, and thy peace offerings, thy sheep, and thine oxen: in all places where I record my name I will come unto thee, and I will bless thee. 25 - And if thou wilt make me an altar of stone, thou shalt not build it of hewn stone: for if thou lift up thy tool upon it, thou hast polluted it. 26 - Neither shalt thou go up by steps unto mine altar, that thy nakedness be not discovered thereon.

[Phil]

After seeing quoted elsewhere Scalia's anecdote in his opinion about talking to the European (Italian?) who admired Bush closing his 9/11 speech with "God bless the United States of America," and wished that their own leaders were not legally forbidden from doing so, I became manifestly uninterested in anything else Scalia had to say on the matter.

[Clueless]

This business of a single Creator is interesting too.

Hinduism, a supposedly polytheistic religion, has a single Creator (Brahma), a preserver (Vishnu) and a destroyer (Shiva).

Thus, the thesis that the reference to a single creator leads to monotheism is problematic.

Clueless

[Kman]

The framers, and others since then, did invoke and acknowledge God, so invoking and acknowledging God must be consistent with the establishment clause as they understood it.

I think you are right -- this is what Scalia is saying.

As I read his dissent, I wondered how Scalia's originalist logic might be applied to the Second Amendment. The word "arms" (as in "the right to keep and bear arms") as the Framers understood it, meant flintlocks and swords. Therefore, it would seem, the originalist view would dictate that the Second Amendment right applies to those weapons only, just as "establishment of religion" supposedly excludes the invocation of a monotheistic God.

This is of course the whole problem with the originalist approach, in that it tries to get into the heads of the Framers. There is a little deception to that approach, because it assumes -- wrongly -- that the Framers themselves were of one mind on the meaning and impact of the words of the Constitution. They weren't. For every "so help me God" example that Scalia rolls out, the majority opinion has strong counter-examples (i.e., Madison's Memorial and Remonstance).

This is why the McCreary County opinion is so important: not because of what it says about the establishment of religion, but what it says about constitutional interpretation. Scalia's dissent should be read in light of the "smackdown" by the majority opinion, and O'Connor's concurrence. In fact, I recommend reading them in that order.

[Bernard Yomtov]

The framers, and others since then, did invoke and acknowledge God, so invoking and acknowledging God must be consistent with the establishment clause as they understood it.

This hardly follows. The implicit assumption behind this is that the framers obviously would never behave in a way that contradicted the principles laid down in the Constitution. But this is silly. People behave in ways inconsistent with their announced principles all the time. I've even done it myself.

We do it for all sorts of reasons - habit, convenience, thoughtlessness, social pressures, and so on. The fact that the framers behaved in ways that conflicted with the First Amendment does not shed light on the application of the First Amendment. It sheds light on human behavior.

[kenB]

Not entirely on-topic, but are there any official guidelines about what may and may not be displayed in a courtroom? What if a Texas court decided to put up "Beef - It's What's For Dinner" posters on every wall, thus suggesting to vegetarians that they'd better keep their dietary practices to themselves? Is that OK since it's not a religious message?

[Francis/Brother Rail Gun of Reasoned Discourse]

kman: i'd argue that what the Framers meant by "arms" was military weapons, as opposed to guns used for hunting food, like fowling pieces. [from what i've read -- and i'm no 2nd amendment scholar -- "bear arms" meant at the time to serve in the military.]

so a modern interpretation of the 2nd amendment might read as follows: A well-trained and disciplined National Guard being necessary for the Security of each State, the right of each Citizen to have a Weapon while in Service in the National Guard shall not be Infringed.

which leads to the odd conclusion that the 2nd amendment protects the right to private ownership of nukes but not handguns.

[hilzoy]

Francis: but this is one of the sticking points for originalism: how on earth do we know whether it was military weapons, or weapons generally, or firearms specifically, or any of the 500 other possible sets of things I could come up with, given time and inclination? I see no good way of answering these questions (generally, not that one couldn't have enough evidence in a given case), and that's one reason why I think Scalia's views on interpretation are (a) utterly wrong, and (b) end up simply concealing his acting on other principles entirely. As in this dissent.

[Anarch]

kman: i'd argue that what the Framers meant by "arms" was military weapons, as opposed to guns used for hunting food, like fowling pieces.

Part of the problem, from what I understand, was that that distinction didn't really exist in 18th century America.

[felixrayman]

from what i've read -- and i'm no 2nd amendment scholar -- "bear arms" meant at the time to serve in the military

The "military" at that time meant every able-bodied adult male, so even if your interpretation of the phrase was correct, an originalist position would lead one to argue for the right of all men to own certain types of weapons.

which leads to the odd conclusion that the 2nd amendment protects the right to private ownership of nukes but not handguns.

We do know what the framers meant by arms, and that word clearly distinguished between rifles and guns, which were "arms" and weapons like cannons, which would have been called "ordnance", and under which category ballistic missles would clearly fall.

As I'm standing by my earlier assertion that the Constitution is a piece of paper that is now pretty much meaningless, the whole thing is moot, anyway.

[Jackmormon]

Rilkefan,

To be a truly religious religion and a truly modern one, you have to set up Paypal tithing...

[Francis/Brother Rail Gun of Reasoned Discourse]

felixrayman: in the first portion of your post you leap with two big feet into the intention/extension debate.

every male between a certain age was eligible for the militia. were all of them in it? what about prisoners / the disabled? were 5 yr old males in the militia? uh no. what about the "well-regulated" language? isn't that explicit language that not just any militia qualifies, but only limited ones?

your 2nd point, that the Constitution is "moot" is beneath contempt. Here is a link to the Constitution. Some clauses and amendments may be a little more tattered than others, but the bulk of it still stands. Simple test: If the Constitution is moot, does that mean you're not paying your income taxes?

[rilkefan]

Francis: "beneath contempt"?

Jackmormon, in Rilkean fashion, I'm planning on financing my religion through a patronness. Anyone willing to lend me a well-furnished castle in a dramatic setting gets sainthood.

[Francis/Brother Rail Gun of Reasoned Discourse]

yes, beneath contempt. we may not have a perfect form of govt, but it's one of the better ones going and it derives from the US Constitution. To say that our founding document is "moot" is not merely wrong, it is so profoundly stupid that i hold that comment in whatever state which is found somewhere beneath contempt.

For example, no matter what frman believes about the 5th amendment, as both a practical matter and as a matter of law, the takings doctrine is alive and well. I use it and/or threaten to use it on almost a daily basis in order to prevent municipalities from shifting unfair shares of provision of govt services onto developers I represent.

[rilkefan]

I doubt the remark expressed disagreement with the Constitution as a set of ideals and laws - rather I expect it should be read to argue that our society and govt have turned their backs on it for private or partisan advantage. As such it may be wrong but not I think despicable.

Now if someone says the laws of physics are moot, well...

[Francis/Brother Rail Gun of Reasoned Discourse]

fair enough. today was a lousy day and i over-stated my point.

Felixrayman, I apologize. While I disagree, I should not have been so vehement.

[felixrayman]

Felixrayman, I apologize. While I disagree, I should not have been so vehement.

Darn, and just before I posted my scathing reply. Anyway, no apology necessary, I don't expect that the argument that we have become a nation of men rather than laws to be a popular one, although I believe it is the case.

every male between a certain age was eligible for the militia. were all of them in it? what about prisoners / the disabled? were 5 yr old males in the militia?

The term adult excludes children, the term able-bodied excludes the disabled. I should have added the word "free" (and also "white") to my qualifiers as well, I suppose. One could make a good argument that laws denying ex-felons the right to own firearms are in conflict with the intent of the framers.

what about the "well-regulated" language?

Well-regulated did not mean then what it means now. It meant functioning properly, not well-controlled. Details here. You should read the amendment again with that in mind.

[Phil]

And to follow up on felix's points, every able-bodied adult male today who is not already serving in the armed forces is considered by law to be a member of the unorganized militia; see the U.S. Code here.

[ephriam]

EARTH IS AT ITS END! THE HOUR OF OUR LORD JESUS CHRIST IS UPON US!