Scalia’s constitutional errors

By |2018-01-16T08:47:28-05:00October 31st, 2017|Uncategorized|

Paul Varnell

The Cutting Edge . . .

Belligerent and strident Supreme Court Justice Antonin Scalia has an inexplicable reputation for judicial brilliance. What seems insufficiently noticed, however, is Scalia’s recent passage from a masked religious advocacy to overt support for intruding religion into people’s lives.
During the March 2 oral argument of constitutional challenges to government displays of the Ten Commandments, Scalia observed that the commandments were “a symbol of the fact that government derives its authority from God.” A little later he added that display of the commandments sends the message that “Our laws come from God.”
Now this view of American government is offered entirely without evidence and not only deeply dangerous to republican government but at every point demonstrably false.
Scalia’s claim is dangerous because, based on what we can learn from ancient religious texts, gods typically give commands, offer no reasons for their commands, require unquestioning obedience, brook no argument or dissent and tend to destroy those who disobey. If governmental authority comes directly from a god, governments have no reason to follow any other practice.
In theory, any such government is obligated to obey the god’s will. It is exactly this theory that underlies fundamentalist Muslim hostility to democracy–that democracy is non-Islamic because it is rule by the people instead of by god. But of course it is the government itself or officially approved religious authorities who determine what god’s will is.
Scalia’s view that government derives its authority from a god seems indistinguishable from the medieval doctrine of the Divine Right of Kings. But modern governments, even monarchies, long ago abandoned that claim, no prominent American statesman – and no Supreme Court justice – has ever asserted it, and the founders of the United States rejected it in the strongest terms.
The very Preamble to the U.S. Constitution makes it clear that the American government obtains its authority not from any god but from the people themselves: “We the People of the United States,” it says, “do ordain and establish this Constitution for the United States of America.” That is, the people form the government and grant it powers. Nowhere does the Constitution mention any gods.
The theory behind this -what we might call “the metaphysics of republican government” – is set out in the Declaration of Independence. There Thomas Jefferson and the 55 other signers explain that “all Men … are endowed by their Creator with certain unalienable Rights” and that the governments they institute derive “their just Powers from the Consent of the Governed.”
In short, the idea is that the creator god gives unalienable rights to human beings who in turn grant to a government only enough power to protect their rights. The government receives nothing at all from a creator – no authority, no rights, no powers.
If someone tried to cavil that the Declaration was technically not a government document, we can point out that both the Ninth and Tenth Amendments make clear that the people themselves have primary possession of rights and powers, even of the ones they transfer to the government.
The Ninth Amendment says, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Note the word “retained” – that is, the people had the rights in the first place before they formed a government.
The Tenth Amendment adds, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people.” Note the word “delegated.” The government’s authority is derived from the people–and in the U.S. context, pre-existing state governments–not from any gods.
Unfortunately for Scalia, even if governments did obtain authority from some god, the Ten Commandments would not be reliable evidence.
For one thing, societies long before and in total ignorance of the Ten Commandments had highly developed law codes that prohibited stealing, adultery and the murder of fellow citizens. Those are fundamental requirements for any society and hardly depend for their discovery or enforcement on the authority of any god.
Second, most governments including ours reject some of Yahweh’s commandments and therefore his authority–for example, commandments that only Yahweh be worshipped, that prohibit work on the sabbath or the creation of graven images of gods (remember that for most Christians Jesus is an aspect of god), and the parts that refer complacently to slavery (commandments 4 and 10).
Third, biblical scholars point out that if the Israelites had just escaped slavery in Egypt and were wandering in the desert, they would hardly have had slaves of their own, nor houses nor cities with gates, yet all those are referred to in the commandments. That indicates that the commandments were not given at Mt. Sinai but formulated later by scribes for a more developed society and back-dated by being inserted into the Exodus legend to give them more authority.
So Scalia’s view is ignorant, false, tendentious, authoritarian and literally un-American.

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BTL Staff
Between The Lines has been publishing LGBTQ-related content in Southeast Michigan since the early '90s. This year marks the publication's 27th anniversary.