So most reports are saying that the justices appeared fairly hostile to the idea of removing the Ten Commandments displays. Judge for yourself by reading the transcript of the oral arguments. I was right that Douglas Laycock did not argue the Van Orden case, it was Erwin Chemerinsky of Duke University Law School. One statement sticks out to me, from Scalia:
You know, I think probably 90 percent of the American people believe in the Ten Commandments, and I'll bet you that 85 percent of them couldn't tell you what the ten are. And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds.
Leaving aside the fact that he is basing his conclusion of what is being endorsed by such monuments on the ignorance of the public, this seems like a silly argument to me. The Ten Commandments don't say anything about government deriving its authority from God. There are other biblical texts that say that, such as Paul's letter to the Romans, but this one does not. So essentially what Scalia is arguing is that anything that is posted that even mentions God is appropriate to post because it somehow links to the notion that government derives its authority from God. By that reasoning, any display that mentioned God at all, even if it doesn't say anything whatsoever about governmental authority, would be "appropriate". A big banner saying, "God doesn't like it when you masturbate" would be equally as "appropriate" to post in a courthouse, under Scalia's reasoning - after all, it mentions God, even if it has nothing at all to do with governmental authority.
I would also argue that Scalia has exactly reversed the founding principle of our nation. The statement of the Declaration of Independence is this:
We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the Pursuit of Happiness -- That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed...
It does not say that government derives its authority from God, it says that our rights are endowed by God (that is, men are free in a state of nature, from the perspective of the founders), but that government derives its authority from the consent of the governed. So even if one accepts the dubious notion that the Ten Commandments being posted symbolizes nothing more than the founding idea of our political system, it's symbolizing a distortion of that principle.
You can see more discussion of this all over the net. Mark Tushnet of Georgetown Law and Jack Balkin's blog (and father of Rebecca Tushnet, also a Georgetown law prof who happened to be judged by me in debate when she was in high school a long time ago) held a Q and A session on the subject at the Washington Post. And Jon Rowe points to this old article by Marci Hamilton on why the Ten Commandments are virtually irrelevant to the history of American law.
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The sad thing is that the court may decide to bow before public pressure in one or two cases that are clear establishments of religion.
Wow. So, by Scalia's reasoning, we haven't actually progressed significantly beyond the point where the kings ruled by divine right. That's chilling, to say the least.
I think we will get a good ruling. Before the Texas case SCOTUS refused to hear Ten Commandments monument cases. What was different about the Texas case? A Ten Commandments monument was upheld. (The Kentucky case probably would not have been heard by SCOTUS if the Texas case was decided differently.)
What do you mean by "good ruling"? If you mean high quality with sound reasoning, I doubt it. If you mean long, you are probably right.
And, Oh will you hear the "lamentations" in the land, if their beloved, their idol cannot be displayed in the public square at taxpayer expense!
One of the interesting points in the hearing, according to Slate's description, is that Scalia is not playing the advocates' game of pretending the 10 Commandments are not religious in nature. The bad part of that is he apparently thinks that's OK.
What do you mean by "good ruling"? If you mean high quality with sound reasoning, I doubt it. If you mean long, you are probably right.
sorry for the double post.
Exactly, Ed. Is it just me, or does Scalia seems to live in this benighted world where a stern, patriarchal God watches over the whole American legal system? He gave it to us, in his infinite wisdom, but by gum, he can take it away at a moment's notice if we don't use it to glorify Him!
And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes -- derives its authority from God.
Whose god? If I worship Buddha, or Vishnu, or Zeus, when I look at that monument, I don't see the authority of my god. I see government endorsement of--even allegience with--an alien faith. If I bought Scalia's reasoning, I should be able to demand an equal sized monument of virtually any religious symbol I want. I want to be reminded that the government's authority derives from MY god. Pretty soon the rotundas of America would look like some cluttered, ecumenical swap meet.
If I bought Scalia's reasoning, I should be able to demand an equal sized monument of virtually any religious symbol I want.
Not really, because Scalia's reasons that the U.S. should favor certain religions over others. Christian Heritage, Christian Founders, Christian Nation, Christian Peanut Butter and Jelly, etc. And he prouldy flaunts it every chance he gets, be it in chambers, or out in public.
Ed, are you sure that Scalia actually said something like that? I don't particularly care for Scalia, but I would be surprised if he would actually say something like this--and mean it. If he did say it, maybe he intended it to be sarcastic?
Raj - the quote from Scalia shows up on page 16 of the transcript mentioned in the post. He then goes on to ask that the minority "be tolerant of the majority's ability to express its belief that the government comes from God." He plays on similar themes throughout the transcript. I find it very upsetting.
Opus Dei sleeper-cell "Scalia" is now "active."
I'm sure that 90% or more of people believe that some of the commandments are useful or how they might act (EG, not murdering and so forth), but, as professor Paul Finkelman says, for a society saturated with marketing and a notion of keeping up with your neighbors, Thou shalt not covet is a bit out of place.
Scalia is a majoritarian... if the people want it, the people should get it. I wonder, though, what would happen if his beloved Protestant majority decided that Catholics should be second class citizens? It's happened before.
During oral arguments in the Van Orden case, Justice Scalia, the originalist, had the audacity to criticize the Founders. He said that the Declaration of Independence was wrong. Our government does not derive its authority from the consent of the governed as the Declaration proclaims. Rather, it "derives its authority from God." And he insisted it's a fact that "the foundation of our laws is God."
Has Scalia lost his mind? At what point in his life did he start to think that the "impartial" part of being a Justice stopped being immportant in religious matters? It's not like we're asking that displays of the Ten Suggestions be outlawed and removed from everywhere, just public land. The religious right is using the same false argument here as they use to decry the loss of prayer in schools. Nobody took away their right to pray in public schools, we just made it clear that they don't have the privilage to infringe upon other peoples rights by forcing non-Christians to pray. It's not like a school kid is going to be arrested for throwing out a few "Hail Mary's" before the bell, nor will anybody be detained for wearing a TC shirt in a public park or putting up their own monument in their church or on their own property using their own money. Jesus, these people are stupid.
Patrick