Horatio

Horatio
[Photo by Jacquelyn Griffin)

Sunday, January 3, 2016

"Scalia il Magnifico"?

Rod Dreher, after a couple days when I actually enjoyed reading his blog (he has a very nice tribute to the late, great Robertson Davies), has relapsed again, with an effusion to "Scalia il Magnifico", as he terms the cantankerous member of the High Court, not based on any opinion he's written, but on the basis of a talk Scalia gave at Archbishop Rummel High School in Louisiana, which Dreher attended, and says is accurately summarized at the link:
The Constitution's First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn't mean the government can't favor religion over nonreligion.

That was never the case historically, he said. It didn't become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.

If people want strict prohibition against government endorsement of religion, let them vote on it, he said. "Don't cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it."

Citing a quotation attributed to former French President Charles de Gaulle, Scalia said "'God takes care of little children, drunkards and the United States of America.'" Scalia then added, "I think that's true. God has been very good to us. One of the reasons God has been good to us is that we have done him honor."

Scalia has long been a vocal advocate for a conservative reading of the First Amendment's clause on religion. In Scalia's view, the courts should interpret it based on the text itself, which doesn't expressly prohibit government support for religion, and common practice.

At the time the Constitution was written, religion was ubiquitous. Scalia noted that Thomas Jefferson, who first invoked the idea of a "wall of separation between church and state," also penned Virginia's religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.

Such deference for a higher power has been consistent ever since, Scalia said.

The American people have clearly demonstrated a tolerance for government support of religion by enacting laws that exempt church property from taxation, he said. Congress even has clergymen on the payroll.

Given the history and subsequent common practice, Scalia called it "absurd" to interpret the First Amendment in such a way that banishes any government expression of support for religion.
This is a remarkable speech, if Dreher is right, and the speech is accurately summarized. For one thing, it elides completely the distinction between the First Amendment as originally enacted--solely a restriction on the federal government, not on the states--and the effect of the passage in the Reconstruction Era of the Fourteenth Amendment, which changed the balance between the states and the federal government forever, limiting the states in ways that had not been originally contemplated. As I explained at some length in First Amendment, First Principles: verbal Acts and freedom of Speech, the early jurisprudence bears that out, reflecting a complete disabling of the federal government from acting against speech (or, except in the territories, directly governed by the federal government, religious expression), while leaving the states plenary authority. So relying on the Framer's understanding of the First Amendment as it applied to state action, deliberately left outside its scope, as charting its reach as to what it does control is disingenuous in the extreme.

Scalia's logic about custom and practice seems to me to to break with his normal emphasis on text and language, but, frankly, charting Scalia's inconsistencies in interpretative techniques is old now. I would note that his logic would draw into question the very point of a written constitution, and is much more of a common law approach than one would expect from him. Also, any line of reasoning that suggests that Brown v. Board of Education was wrongly decided because a corrupt bargain was struck to allow the South to set the 14th Amendment at naught for 70 years is, to me, self-defeating.

Leaving all this aside, from Dreher's own personal commitments, this praise seems entirely unwarranted, as Dreher is in fact praising the guy who wrote the opinion that struck down decades of jurisprudence–all from those “activist judges” he deplores–protecting religious groups from generally applicable laws when such laws burden their religious beliefs (That’s Employment Div v. Smith in a nutshell), because he agrees that the government has a right to, when the duly elected representatives of the people decide to do so, favor religion over irreligion?

Same logic that allows for the burdening of of religion by generally applicable secular legislation passed by voters. Absent anti-religious discrimination, majority rule determines religious rights.

It sounds like he may be re-thinking his decision in Smith, now that it’s goring his own ox, but is that really commendable? It was just and righteous for 20 years, as applied to other faiths, but now that his own faith tradition is not winning the majority votes, let’s reverse it?

It’s not unlike his opinions in the ACA cases. In King v Burwell, he dismissed as “applesauce” the majority’s reading of the relevant section of the Affordable Care Act in exactly the same way he had read it in NFIB v. Sebelius, a mere 3 years earlier. (I juxtapose the quotes from the two cases, with links, here:

Scalia il magnifico? He’s going back and forth on basic issues of statutory and constitutional interpretation based on his personal preferences. This means that nobody not already in his camp will view such decisions as legitimate, and that they can only be considered not as constitutional but as partisan political acts?

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