Justice Stevens Has a Question for Justice Scalia

Tuesday, June 28, 2005

Justice Stevens Has a Question for Justice Scalia

In yesterday's ruling upholding Texas' Ten Commandments display, Supreme Court Justice John Paul Stevens wrote this excellent dissenting opinion. First, Stevens challenged the plurality's one-sided historical analysis ("plurality" refers to the opinions written by Rehnquist and Scalia):
Notably absent from their historical snapshot is the fact that Thomas Jefferson refused to issue the Thanksgiving proclamations that Washington had so readily embraced based on the argument that to do so would violate the Establishment Clause.

The Chief Justice and Justice Scalia disregard the substantial debates that took place regarding the constitutionality of the early proclamations and acts they cite [including James Madison's 1822 letter to Edward Livingston in which he argued] that Congress' appointment of Chaplains to be paid from the National Treasury was "not with my approbation" and was a "deviation" from the principle of "immunity of Religion from civil jurisdiction" ....

... and (they) paper over the fact that Madison more than once repudiated the views attributed to him by many, stating unequivocally that with respect to government's involvement with religion, the "tendency to a usurpation on one side, or the other, or to a corrupting coalition or alliance between them, will be best guarded against by an entire abstinence of the Government from interference, in any way whatever, beyond the necessity of preserving public order, & protecting each sect against trespasses on its legal rights by others."

... The Chief Justice and Justice Scalia ignore the separationist impulses -- in accord with the principle of "neutrality" -- that [colonists] brought to the debates surrounding the adoption of the Establishment Clause.
Best of all, Justice Stevens wonders why Scalia sets aside his "original intent" creed when it comes to interpreting the Establishment Clause:
... there is another critical nuance lost in the plurality's portrayal of history. Simply put, many of the Founders who are often cited as authoritative expositors of the Constitution's original meaning understood the Establishment Clause to stand for a narrower proposition than the plurality, for whatever reason, is willing to accept.

Namely, many of the Framers understood the word "religion" in the Establishment Clause to encompass only the various sects of Christianity.

The evidence is compelling. Prior to the Philadelphia Convention, the States had begun to protect "religious freedom" in their various constitutions. Many of those provisions, however, restricted "equal protection" and "free exercise" to Christians ... That historical background likely informed the Framers' understanding of the First Amendment. Accordingly, one influential thinker wrote of the First Amendment that "[t]he meaning of the term 'establishment' in this amendment unquestionably is, the preference and establishment given by law to one sect of Christians over every other."

... That definition tracked the understanding of the text Justice Story (who served on SCOTUS from 1812 to 1845) adopted in his famous Commentaries, in which he wrote that the "real object" of the Clause was:

"not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government ..."

... The original understanding of the type of "religion" that qualified for constitutional protection under the Establishment Clause likely did not include those followers of Judaism and Islam who are among the preferred "monotheistic" religions Justice Scalia has embraced in his McCreary County opinion.

... The inclusion of Jews and Muslims inside the category of constitutionally favored religions surely would have shocked Chief Justice Marshall and Justice Story. Indeed, Justice Scalia is unable to point to any persuasive historical evidence or entrenched traditions in support of his decision to give specially preferred constitutional status to all monotheistic religions.

Perhaps this is because the history of the Establishment Clause's original meaning just as strongly supports a preference for Christianity as it does a preference for monotheism. Generic references to "God" hardly constitute evidence that those who spoke the word meant to be inclusive of all monotheistic believers; nor do such references demonstrate that those who heard the word spoken understood it broadly to include all monotheistic faiths.

... Justice Scalia's inclusion of Judaism and Islam is a laudable act of religious tolerance, but it is one that is unmoored from the Constitution's history and text ... (and) patently arbitrary in its inclusion of some, but exclusion of other (e.g., Buddhism), widely practiced non-Christian religions.

... Given the original understanding of the men who championed our "Christian nation" -- men who had no cause to view anti-Semitism or contempt for atheists as problems worthy of civic concern -- one must ask whether Justice Scalia "has not had the courage (or the foolhardiness) to apply [his originalism] principle consistently."
Here, here.

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