In an interview with the Orthodox Jewish paper Hamodia, Justice Scalia says,
More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.
I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life.
Steve Benen comments,
How would government staying neutral on matters of faith “drive God out of public life”? Scalia didn’t say.
Actually, I think it’s reasonably clear. Scalia is blurring, deliberately or not, the distinction between the public sphere and the government. Public life and the transactions of the Lege are not to be distinguished.
I’m no scholar of the Constitution, but it seems plain in the Preamble that it and the institutions it lays out are, at least conceptually, ordained and established by the People. (Even the people of the State of Texas likewise “ordain and establish”, though not before invoking G-d.) Government may control us in more ways than we’d like, it may employ more of us than we care to admit, but it is our creature.
I wouldn’t have thought there was a particular political chirality to this common error, but it may well now belong, if only as a rhetorical strategy, to the right. Certainly much of the Republican opposition voiced over the past year to Keynesian deficit spending was phrased in these terms — when times are tough, we have to tighten our belts! — as if the government were just like a private individual, or were the aggregate of all the private individuals it governs. (And I’ve heard the same from a winger friend.)
Am I right? It seems downright perverse that the party of the rhetoric of small government should so freely resort to a confusion that implies a kind of statism.
And does the confusion have a history? From what I recall of my civics, the Founders did their founding out of an experience in which the distinction between government and the governed had grown all too stark.
26 comments
September 28, 2009 at 6:47 am
politicalfootball
How convenient.
September 28, 2009 at 7:11 am
politicalfootball
Also, this is kind of remarkable:
Surely Scalia understands the dismissive nature of the alleged de Gaulle remark. It always amazes me when conservative intellectuals make common cause this directly with the little children and drunkards in their political sphere.
September 28, 2009 at 9:18 am
Vance
The commentariat must all be off atoning for something. I’ll just post this placeholder to push the spam link off the front page.
Donald Fisher, founder of the Gap, has died. I’ve posted before on his efforts to found a museum in the Presidio of San Francisco. That didn’t work out — but a few days ago the news was that he had decided his collection should go to the SF Museum of Modern Art.
Fisher was a trustee of the museum, and was also a crucial figure in the effort to save the Presidio from being sold outright. So was there some falling out between him and the museum, which provoked him to try setting up his collection as a separate museum? And in saving the Presidio, did he inadvertently launch the unappeasably demanding preservation board which now makes it all but impossible to do anything productive with it? (See for example what the Disney heirs had to go through to convert one of the buildings on the Main Post into a museum.)
Speculation aside, we can only be grateful. The museum, and San Francisco, will benefit greatly.
September 28, 2009 at 10:21 am
Charlieford
“does the confusion have a history?”
There’s the irony–let’s call it–that the Fugitive Slave Act, together with Southern Democrat demands for the extension of federal protection of slavery into the territories, would have constituted the largest expansion of federal power in our history up till then. That from the so-called States’ Rights crowd.
September 28, 2009 at 10:42 am
Chris
I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life.
Wouldn’t that depend rather a lot on which god is being driven out (or, in this case, in)? Has Justice Scalia forgotten that different religions are different and they have a multi-millenial history of mutual hostility, and that his own religion not so long ago pursued Jews, Orthodox or otherwise, with fire and sword?
The founders of our country were determined to prevent that sort of thing from coming here. Driving gods out of *government* life was one of their most powerful safeguards against it.
Different religions *have different gods* and no amount of pablum about “Judeo-Christian values” is going to obscure that fact to the people whose children are asked to join in a public prayer to someone else’s Lord and Savior.
September 28, 2009 at 11:15 am
Vance
That last assertion, Chris, is at least open to question. But Scalia isn’t interested in a correct or consistent answer to that question, either — rather, as with the distinction between the people and the government, he lumps or splits as necessary to form a missile of the desired shape and weight.
September 28, 2009 at 12:08 pm
teofilo
I don’t know enough about Orthodox Jewish opinion to say how Orthodox Jews feel about the Establishment Clause, but other Jews have traditionally taken a very hard line on it, and not in the direction Scalia prefers. Whether or not Judaism and Christianity worship the same god, they are certainly different religions, and as Chris points out they have a long and not very amicable history.
September 28, 2009 at 12:52 pm
andrew
Certainly much of the Republican opposition voiced over the past year to Keynesian deficit spending was phrased in these terms — when times are tough, we have to tighten our belts! — as if the government were just like a private individual, or were the aggregate of all the private individuals it governs.
However, private individuals also try to do things like work more hours, ask for raises, get second jobs, apply for loans, and ask for help from family or friends. The government, under this view, is a peculiar kind of private individual that should do only the belt tightening and none of the rest.
September 28, 2009 at 1:40 pm
politicalfootball
As the woman in this video would say, “boolshit.”
The video is nominally occasioned by the latest Kirk Cameron creationist nonsense, but it does a sweet job of dismantling Religious Right arguments about the nature of church, state and public life in the U.S. I liked the bit where she describes rights as not being God-given, but given by other people, which is why you look at the Constitution and not the Bible when you want to find out what your rights are.
September 28, 2009 at 5:40 pm
zapoli
1,973 – 1,788 = “several hundred.” Fact!
September 28, 2009 at 7:07 pm
Ahistoricality
It is a fact that for several hundred years nobody thought that the Constitution forbade restrictions on the termination of fetal life.
Actually, for the first hundred of those (almost two hundred) years, nobody regulated abortion at all, I think (IANA Americanist, though). So it’s the restrictions, not the freedom, which should bear the brunt of the originalist argument.
I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life.
Let’s start with numbers: the Orthodox are the smallest of the three main American branches of Judaism, so why don’t we stop treating them like the arbiters of Jewish opinion on everything?
September 28, 2009 at 7:39 pm
Vance
Ahist, he’s just acknowledging his interviewer, who represents an Orthodox paper. There’s lots to be creeped out by in the interview, but that at least is benign to insignificant.
September 28, 2009 at 8:54 pm
Ahistoricality
Is it? Would he accept an interview request from a religious publication of a sect that represented fewer than a million people if it was non-Jewish?
Oh, never mind.
September 28, 2009 at 9:04 pm
Vance
No, that’s fair. I was responding narrowly, thinking you were responding just to the fragment you quoted.
September 28, 2009 at 10:15 pm
Ahistoricality
I was, actually. The fact that my knee-jerk reaction isn’t wrong is merely a happy coincidence.
September 29, 2009 at 5:02 am
tomgnh
The reality of the “small government” ideology was made clear to me in a graduate course on federalism, when a guest historian concluded, “I have never seen ‘states’ rights’ used as anything but a smokescreen.” Those in control of federal power exercise it.
Jefferson ran into this with the Louisiana Purchase; Bush did with the Patriot Act and NCLB and….
September 29, 2009 at 5:04 am
dana
So it’s the restrictions, not the freedom, which should bear the brunt of the originalist argument.
Also, as far as I can tell, the idea that life starts at conception (as opposed to “the quickening” or “roughly three months in”) is a relatively recent phenomenon.
September 29, 2009 at 9:42 am
Barry
Chris: “There’s the irony–let’s call it–that the Fugitive Slave Act, together with Southern Democrat demands for the extension of federal protection of slavery into the territories, would have constituted the largest expansion of federal power in our history up till then. That from the so-called States’ Rights crowd.”
I don’t think of it as the largest expansion (the Louisiana Purchase and the Embargo Act were bigger, IMHO).
And not ‘would have’ but ‘did’.
September 29, 2009 at 9:56 am
Vance
Another example of what I’m thinking of is the opportunistic conflation of criticism of the administration with “anti-Americanism”.
September 29, 2009 at 10:42 am
Ralph Hitchens
“…what the American constitution provided?” That should be plain enough even for Justice Scalia. The Establishment clause excludes religion from government, end of story. To the founding fathers the horrors of the religious wars of the 16th and 17th centuries were recent and salient lessons demanding the exclusion of religion from the public sphere. (As for the Ten Commandments, the first four should be excluded but no one can object to the other six.) The GOP and its loyal servants (like Scalia) are working hard to unify christianity and government, and they must be stopped.
September 29, 2009 at 12:57 pm
politicalfootball
It’s always striking to me that Scalia can style himself an “originalist” without grappling with the clear original intent of the 9th Amendment.
September 29, 2009 at 3:47 pm
serial catowner
How did this moron get a seat on the Court? I’m no Constitutional expert, but I’m pretty sure there’s no part where it espouses Christianity.
In fact, when it was written, every other government in the world also established a religion, so I’m pretty sure that when the writers of the Constitution not only didn’t establish a religion, but absolutely forbade it, it indicates their “original intent”- that the government not establish a religion.
Scalia almost makes Clarence Thomas look wisely reserved with his silence. Better to be thought a fool……
September 29, 2009 at 5:20 pm
teofilo
Also, as far as I can tell, the idea that life starts at conception (as opposed to “the quickening” or “roughly three months in”) is a relatively recent phenomenon.
And, to bring this back around to Judaism, the traditional Jewish interpretation is and always has been that life begins at birth.
September 30, 2009 at 7:58 am
Barry
teofilo, he’s not a moron, he’s simply a liar; that is, when BS isn’t strong enough.
BTW, the comment from ‘Vance’, at September 29, 2009 at 9:56 am, was mine. Is Worpress giving nomes de comment?
September 30, 2009 at 7:59 am
Barry
Oh, and the one before ‘Vance’ was not mine. Methinks that WordPress switched names.
September 30, 2009 at 8:04 am
Vance
Barry, you’re probably using IE — there’s a bug in this stylesheet (one we’re not unfortunately in a position to fix). It works in Firefox and I think Safari.