When Supreme Court Justice Antonin Scalia died last week, there was an outpouring of praise so effusive that any innocent bystander couldn’t help but be convinced that the man was one of the towering intellects, juristically speaking, ever to occupy the Bench.
Scalia was, by all accounts, a loyal and hearty hail-fellow-well-met, but Oliver Wendell Holmes he wasn’t. He believed in heaven and hell, for instance, not figuratively but literally, and he said that Judas Iscariot was a conspicuous denizen of the latter. He once suggested that the Devil caused atheism, and he saw it as his responsibility to exorcise the Prince of Lies from the body politic.
“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion,” Scalia said in 2014, while preaching to the choir at Colorado Christian University.
Scalia often harped on this theme, including during one of his last public addresses, early this January, at a high school in Louisiana.
“To tell you the truth there is no place for that (religious neutrality to include atheism) in our constitutional tradition,” he told the students. . “To be sure, you can’t favor one denomination over another, but you can’t favor religion over non-religion? Where did that come from?”
Well, call me obtuse, but how about from the Constitution itself? “Congress shall make no law respecting an establishment of religion,” it says right there in the very first amendment. I don’t know how it can be any plainer, but then I haven’t been trained in the law.
Scalia was 79 when he died, but supposedly still sharp as a tack. So when he told the students in Louisiana that it was a good thing for public figures like the President to invoke the name of God in their speeches, because God has been good to us in return, you couldn’t chalk it up to senility, I guess. We honor God, God blesses us—tit for tat.
Scalia’s shtick as a Supreme was to insist on the “originalism” of the words of the Constitution, meaning that they are fixed for all time. So he made it his mission to puzzle out what the Founding Fathers meant by such-and-such a pronouncement. Okay, but how do you get from “no establishment of religion” to “any religion is better than no religion”?
James Madison, the principal author of the Constitution, was pretty clear about his intent:
“What influence, in fact, have ecclesiastical establishments had on society?” Madison said in an address to the Virginia Assembly in 1785. “In some instances they have been seen to erect a spiritual tyranny on the ruins of the civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been the guardians of the liberties of the people. Rulers who wish to subvert the public liberty may have found an established clergy convenient allies.”
Thomas Jefferson, another author, coined the term “a wall of separation between church and state,” and Thomas Paine, who also contributed, was a flaming agnostic.
“I do not believe in the creed professed by the Jewish church, by the Roman church, by the Greek church, by the Turkish church, by the Protestant church, nor by any church that I know of,” Paine said. “My own mind is my own church.”
On that last point, apparently Scalia felt the same way.