http://www.nytimes.com/2002/07/08/opinion/08WILE.html
>From Justice Scalia, a Chilling Vision of Religion's Authority in America
By SEAN WILENTZ
PRINCETON, N.J.
Earlier this year Antonin Scalia decided to share some aspects of his
worldview with the public. His inspiration seems to have been the death
penalty: recent debates with his colleagues on the Supreme Court and his
general reflections on the legitimacy of the state taking to itself the
power to kill a citizen. Justice Scalia spoke on these matters at the
University of Chicago Divinity School in January, beginning with the
ritual disclaimer that "my views on the subject have nothing to do with
how I vote in capital cases"; his remarks appeared in the May issue of
First Things: The Journal of Religion and Public Life. They are
supplemented by his dissent to the court's decision on June 20 that
mentally retarded people should not be executed. Justice Scalia's remarks
show bitterness against democracy, strong dislike for the Constitution's
approach to religion and eager advocacy for the submission of the
individual to the state. It is a chilling mixture for an American.
Because Mr. Scalia is on the Supreme Court, and because President Bush
has held him up as an example of judicial greatness, his writings deserve
careful attention.
Mr. Scalia seems to believe strongly that a person's religious faith is
something that he or she (as a Roman Catholic like Mr. Scalia) must take
whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia
noted with relief that the Catholic Church's recent opinion that the
death penalty was very rarely permissible was not "binding" on Catholics.
If it had been, Mr. Scalia said, this teaching would have led the church
to "effectively urge the retirement of Catholics from public life," given
that the federal government and 38 states "believe the death penalty is
sometimes just."
Mr. Scalia apparently believes that Catholics, at least, would be unable
to uphold, as citizens, views that contradict church doctrine. This is
exactly the stereotype of Catholicism as papist mind control that
Catholics have struggled against throughout the modern era and that John
F. Kennedy did so much to overcome. But Mr. Scalia sees submission as
desirable — and possibly the very definition of faith. He quotes St.
Paul, "For there is no power but of God: the powers that be are ordained
of God."
"The Lord," Mr. Scalia explained in Chicago, "repaid — did justice —
through His minister, the state."
This view, according to Mr. Scalia, once represented the consensus "not
just of Christian or religious thought, but of secular thought regarding
the powers of the state." He said, "That consensus has been upset, I
think, by the emergence of democracy." And now, alarmingly, Mr. Scalia
wishes to rally the devout against democracy's errors. "The reaction of
people of faith to this tendency of democracy to obscure the divine
authority behind government should not be resignation to it, but the
resolution to combat it as effectively as possible," he said in Chicago.
Mr. Scalia is right about one thing. Modern democracy did upset the
divine authority of the state. That has usually been considered by
Americans to have been a step forward. The great 17th-century dissenter
Roger Williams declared that government derived no authority whatsoever
from God, but was "merely human and civil." Thomas Jefferson put matters
bluntly in 1779: "[O]ur civil rights have no dependence on our religious
opinions any more than on opinions in physics or geometry."
That view prevailed among the framers at Philadelphia in 1787. Throughout
their debates, even when they prayed for divine guidance, they rejected
the idea that political authority lay with anyone or anything other than
the sovereign people. The only extended discussion of religion in the
Federalist Papers has James Madison listing zeal in religious opinion as
one of "the latent causes of faction" that cause men "to vex and oppress
each other" and that need institutional checks.
There have always been Americans who have thought as Justice Scalia does
now. In 1781 a Massachusetts minister, Jonas Clark, preached that
religion is "the source of liberty, the soul of government and the life
of a people." But ever since the Revolution, this has been a minority
view, even an eccentric one, among Americans. It has had no appreciable
place in our constitutional history because the framers rejected it.
They had many reasons for doing so, not least the factionalism mentioned
by Madison. They had an idea that sovereignty rested with a free people,
even if some among those people didn't believe in God, or in the same
God, or in the same way.
Such a belief in the worth of people independent of religious
considerations (whether their own or those of the state) has
distinguished secular democracy. This seems to irritate Mr. Scalia. It
seems to indicate a humanist egotism that might lead a person to think
individual lives are so valuable that it is not the privilege of the
state to take them. "Indeed, it seems to me," Mr. Scalia said in Chicago,
"that the more Christian a country is the less likely it is to regard the
death penalty as immoral. Abolition has taken its firmest hold in
post-Christian Europe, and has least support in the churchgoing United
States. I attribute that to the fact that for the believing Christian,
death is no big deal."
This might imply that the death penalty would have little deterrent
effect for the faithful. It might also imply that devout Christians have
fewer moral scruples about disregarding the Old Testament's injunction
against killing. ("For the nonbeliever, on the other hand, to deprive a
man of his life is to end his existence," Mr. Scalia said sarcastically.
"What a horrible act!") But that is not quite Mr. Scalia's point. He
wants us to know that Catholics and perhaps other religiously minded
people have the moral sense to hold their own wills as slight things
compared to those of God and His minister, the state — with the partial
exception of judges.
In Chicago, Mr. Scalia argued strenuously that in America a judge who
morally opposed the death penalty ought to resign. "Of course," Mr.
Scalia said, "if he feels strongly enough he can go beyond mere
resignation and lead a political campaign to abolish the death penalty —
and if that fails, lead a revolution."
But leading a revolution would inevitably bring some interference with
the application of laws, not to mention all the other atrocities that
typically attend revolutions. Only a judge could think it better to play
Robespierre than to issue too ambitious an opinion.
One senses that Mr. Scalia's true priority is to get secular humanists
off the federal bench. In his dissent to Atkins v. Virginia, the recent
decision against executing mentally retarded criminals, Mr. Scalia wrote,
"Seldom has an opinion of this Court rested so obviously upon nothing but
the personal views of its members." The ones he had in mind were not all
the members, just the six who disagreed with him. Mr. Scalia dissents
vigorously against them for letting their personal notions infect the
law.
In Chicago Mr. Scalia asserted, not for the first time, that he is a
strict constructionist, taking the Constitution as it is, not as he might
want it to be. Yet he wants to give it a religious sense that is directly
counter to the abundantly expressed wishes of the men who wrote the
Constitution. That is not properly called strict constructionism; it is
opportunism, and it threatens democracy. His defense of his private
prejudices, even if they may occasionally overlap the opinions of others,
should not be mislabeled conservatism. Justice Scalia seeks to abandon
the intent of the Constitution's framers and impose views about
government and divinity that no previous justice, no matter how
conservative, has ever embraced.
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