Gimme That Old Time Religion

Billmon

Chief Justice . . . excuse me, soon-to-be Chief Justice Scalia gave a little talk down in Virginia, the Execution State, yesterday.

Speaking at an event called "Religious Freedom Day," (i.e. Religious Freedom for Politically Well Connected Conservative Christian Churches Day) Scalia complained that the courts, meaning all those lesser judges not named Anton Scalia, have gone way too far in interpreting the First Amendment's establishment of religion clause.

"What's so terrible about stoning adulterers?" Scalia asked. "I mean, who could be against that? Cough..Bill Clinton..cough."

OK, enough with the comedy schtick. This is actually serious business -- as opposed to that giggle fest with the North Korean nukes. Since Scalia is going to be our next legal pope (editor's note: Does he get to wear the robes with the cool racing stripes?), I thought we should give his views (snigger) a thoughtful (snort) and respectful (blows rasberry) hearing.

According to Scalia, when the Framers wrote that "Congress shall make no law respecting an establishment of religion," what they actually intended to say was "Congress shall make no law which I, Anton Scalia, with my brilliant legal mind, do not agree with."

(In conservative legal circles, this is what is known as the doctrine of "strict constructionism." It holds that once a judge who is member of the Federalist Society has constructed a ruling, it must be strictly obeyed by all lesser mortals for all time.)

Of course, there are many religious laws out there that Justice Scalia does agree with, including especially the 11th Commandment: "Thou shalt make sure the Republican presidential candidate wins the State of Florida." Amen.

But it has come to Justice Scalia's attention that some lower courts are taking a more expansive view of the First Amendment -- especially in that bastion of all things liberal and wicked, (editor's note: you're getting repetitious here) the late great state of California. And thus have sinned against both God and Anton Scalia:

(Scalia) pointed to a federal appeals court ruling in California barring students from reciting the Pledge of Allegiance with the phrase "one nation under God."

That decision is on hold pending further consideration by the same court, but the Supreme Court could eventually be asked to review the case.

Scalia . . . said past rulings by the Supreme Court gave the judges in the pledge case "some plausible support" to reach that conclusion. However, he said, such decisions should be made legislatively, not by courts.

Note how deftly Justice Scalia disposed of stare decisis - that quaint, old-fashioned legal concept which holds that courts should generally defer to established legal precedent, particularly if it has been set down by the highest court in the land.

But of course, we all know that stare decisis is actually a typo; what the law books meant to say was "Scalia decisis," a much sounder and more practical rule.

Note also how Justice Scalia skirted around the equally quaint notion that members of the Supreme Court should refrain from publicly commenting on cases that are, or are likely to be, before the court. Once again, the Scalia exemption must be respected.

We could, I think, fairly interpret Justice Scalia's comments as suggesting he is eager to consider the California case - as in, "I'm going to reach so far down into that circuit's throat to overrule, they're gonna think I'm ripping out their lower intestine."

I guess if the liberals can overturn Plessy v. Ferguson, then maybe conservatives are entitled to take a crack at the Frist (oops) First Amendment.

But Justice Scalia's last comment is what really interested me: the idea that these issues are best handled through the "legislative" process.

Scalia elaborated on this thought when he spotted a lone protestor in the back of the room, holding a sign that read: `Get religion out of government.' With his usual thoughtful wit, Scalia pointed at the man and screamed, "Burn the unbeliever!!!"

OK, OK. What he actually said was, "I have no problem with that philosophy being adopted democratically. If the gentleman holding the sign would persuade all of you of that, then we could eliminate `under God' from the Pledge of Allegiance. That could be democratically done."

Now this passion for democracy is, as the "Church Lady" character on Saturday Night Live used to say, "very convenient." It's often forgotten (most things are in this country) but 70 years ago, when the courts were conservative and the legislatures were liberal -- or at least populist -- right-wing jurists practically had the phrase "judicial review" engraved on their foreheads.

But that was then and this is now (or at least I think it is; the mushrooms didn't go down too well last night), so we'll dismiss the nagging thought that there may be something a tad opportunistic about Justice Scalia's enthusiasm for the popular will. Ask me again in another 70 years.

But turn Justice Scalia's logic on its head for a minute (ignore the nausea; this won't take long.) If the "democratic" process can be used to force us to say "under God" when we recite the Pledge of Allegiance, then what else can we be forced to say? Or not say? Or do? Or not do?

So Justice Scalia, please answer this: Is the entire Bill of Rights now fair game for the legislative process? (I mean other than the Second Amendment. I think we can safely assume it's not covered by your popular will doctrine, and won't be as long as the NRA remains a major part of the Republican donor base.)

If the answer is yes, if constitutional rights are subject to veto by a temporary political majority, then what exactly is the point of having a Bill of Rights?

Hmm . . . individual liberties . . . limits on the power of government . . . protection from a hostile majority . . . Weren't those once conservative ideas?

Posted January 13, 2003 10:18 AM | Comments (61)