Infallible Justice

Infallible Justice

I saw a puzzling banner on the door of a restaurant the other day. It was a flag flanked by two aphorisms: God bless America and America bless God.


I saw a puzzling banner on the door of a restaurant the other day. It was a flag flanked by two aphorisms: God bless America and America bless God. Ever since, I’ve been puzzling over the latter. I suppose the sign could actually have meant “America blesses God,” although I always thought mere mortals praised or worshiped God rather than having the temerity to actually bless God. As written, however, it had an imperative tone to it, as in “America! Bless God!” To my ear it carried such peculiar hubris, like some back-room contractual guarantee: God does for America, so America’s going to ante up for God. In any event, I suppose I shouldn’t try to wax too exegetical about an anonymous banner whose meaning is more sentimental than theological, a patriotic Valentine, perhaps.

I guess I’m worried about the degree to which religious fervor seems to have merged with America’s new nationalism. The line between church and state is challenged by troubling arguments from theorists like Bush’s most recent nominee to the federal bench, University of Utah law professor Michael McConnell. McConnell has said that the government cannot “favor nonreligion over religion” and that tax dollars should be allotted to religious organizations on the same basis as nonreligious entities–even when they adhere to racist, sexist or antigay tenets that clearly violate civil rights laws. McConnell’s arguments about religion are thus very similar to new age notions of “reverse discrimination” so familiar in the context of race. (McConnell didn’t hesitate to defend the old, straight-ahead kind of racial discrimination as “religious freedom,” however, when arguing that Bob Jones University’s tax-exempt status ought to have been preserved despite its antimiscegenation policies.)

But my concern is broader than McConnell. George W. Bush has said he’s looking for judges in the mold of Antonin Scalia, and this worries me. Scalia’s extreme conservatism is certainly no secret–even if the controversy generated by his positions rarely engages the public’s interest much beyond his antipathy to abortion rights and affirmative action. But I do wonder if many people outside the legal profession know precisely what is being embraced when Bush makes such an endorsement. Perhaps the most lucid summary of Scalia’s general jurisprudence is found in a speech he presented this past January, defending the morality of the death penalty, to the Pew Forum on Religion and Public Life.

Scalia began his remarks by reiterating his view that the Constitution is not a living document but “dead.” This means that he interprets the Constitution according to “what it meant when it was adopted” unless Congress has legislated otherwise. Hence, he asserts that capital punishment is “clearly permitted today” since it was permitted when the Eighth Amendment was adopted and “not merely for murder but for all felonies including, for example, horse thieving.” Scalia does not subscribe to judicially imposed limits such as permitting the jury “to consider all mitigating factors, and to impose, if it wishes, a lesser sentence.” Nor does he subscribe to judicially imposed age limits for capital punishment: “It is currently 17. That is well above what existed in common law.”

To adhere so rigidly to the norms of eighteenth- or nineteenth-century America means that Scalia would countenance the rollback of a huge portion of the jurisprudence of the past century. That is why among many lawyers he is seen as not really a conservative but rather one of the most activist judges ever to sit on the bench. Moreover, to civil libertarians who fear that legislatures are sometimes too beholden to what Madison called “the tyranny of the majority,” Scalia’s stance is an abdication of the vital checking power that the Court has historically exercised.

But aside from the fact that Scalia seems to actually like the thought of hanging horse thieves, none of this is what worries me most. Rather, it is that Scalia seems driven by a wondrously reactionary religious crusade. Take for example, his argument 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.” Scalia’s Christianized citizenry, moreover, in being “less likely to regard death as an utterly cataclysmic punishment…is also more likely to regard punishment in general as deserved.”

This sort of language scares me because it echoes millennia of foolish martyrs and sincere fanatics. The last thing we Americans need is a political religion in which “death is no big deal.” But Scalia dismisses such “post-Freudian secularist” objections as those of the “nonbeliever” to whom, he asserts, depriving “a man of his life is to end his existence–what a horrible act.” There is a disturbing sarcasm in this last locution, as though “nonbeliever” had become the latest manifestation of the politically correct bleeding heart. (That the symbolism of Christ’s bleeding heart is inverted in such allusions is a subject for another day.)

Religion is quite central to Scalia’s understanding of governmental legitimacy. “My” system, he says, is that of Justice John Marshall, ostensibly referring to so-called natural (or divinely inspired) law–much of which fell out of fashion before Marshall himself left the bench. (It was Marshall, the first Chief Justice of the Supreme Court, who, in an 1823 case, famously opined that the discovery principle gave title in the Americas to “Christian people,” specifically the King of England, “notwithstanding the occupancy of the natives, who were heathens.”) Scalia cites St. Paul to assert that “the Lord repaid–did justice–through His minister, the state,” a conception he maintains was “the consensus of Western thought until quite recent times.” It concerns Scalia that “that consensus has been upset…by the emergence of democracy,” and he believes that “the reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should be not resignation to it but resolution to combat it as effectively as possible.”

God bless America. The Constitution is dead.

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