First published March 9, 2005, in the Chicago Free
Press.
Belligerent and strident Supreme Court Justice Antonin Scalia
has an inexplicable reputation for judicial brilliance. What seems
insufficiently noticed, however, is Scalia's recent passage from a
masked religious advocacy to overt support for intruding religion
into people's lives.
During the March 2 oral argument of constitutional challenges to
government displays of the Ten Commandments, Scalia observed that
the commandments were "a symbol of the fact that government derives
its authority from God." A little later he added that display of
the commandments sends the message that "Our laws come from
God."
Now this view of American government is offered entirely without
evidence and not only deeply dangerous to republican government but
at every point demonstrably false.
Scalia's claim is dangerous because based on what we can learn
from ancient religious texts, gods typically give commands, offer
no reasons for their commands, require unquestioning obedience,
brook no argument or dissent and tend to destroy those who disobey.
If governmental authority comes directly from a god, governments
have no reason to follow any other practice.
In theory, any such government is obligated to obey the god's
will. It is exactly this theory that underlies fundamentalist
Muslim hostility to democracy - that democracy is non-Islamic
because it is rule by the people instead of by Allah. But of course
it is the government itself or officially approved religious
authorities who determine what God's will is.
Scalia's view that government derives its authority from God
seems indistinguishable from the medieval doctrine of the Divine
Right of Kings. But modern governments, even monarchies, long ago
abandoned that claim, no prominent American statesman - and no
Supreme Court justice - has ever asserted it, and the founders of
the United States rejected it in the strongest terms.
The very Preamble to the U.S. Constitution makes it clear that
the American government obtains its authority not from any god but
from the people themselves: "We the People of the United States,"
it says, "do ordain and establish this Constitution for the United
States of America." That is, the people form the government and
grant it powers. Nowhere does the Constitution mention God.
The theory behind this - what we might call "the metaphysics of
republican government" - is set out in the Declaration of
Independence. There, Thomas Jefferson and the 55 other signers
explain that "all Men ... are endowed by their Creator with certain
unalienable Rights" and that the governments they institute derive
"their just Powers from the Consent of the Governed."
In short, the idea is that the Creator gives unalienable rights
to human beings, who in turn grant to a government only enough
power to protect their rights. The government receives nothing at
all from God - no authority, no rights, no powers.
If someone tried to cavil that the Declaration was technically
not a government document, we can point out that both the Ninth and
Tenth Amendments make clear that the people themselves have primary
possession of rights and powers, even of the ones they transfer to
the government.
The Ninth Amendment says, "The enumeration in the Constitution
of certain rights shall not be construed to deny or disparage
others retained by the people." Note the word "retained" - that is,
the people had the rights in the first place before they formed a
government.
The Tenth Amendment adds, "The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States, respectively, or to the
people." Note the word "delegated." The government's authority is
derived from the people - and in the U.S. context, pre-existing
state governments - not from God.
Unfortunately for Scalia, even if governments did obtain
authority from God, the Ten Commandments would not be a reliable
basis for our laws.
For one thing, societies long before and in total ignorance of
the Ten Commandments had highly developed law codes that prohibited
stealing, adultery and the murder of fellow citizens. Those are
fundamental requirements for any society and hardly depend for
their discovery or enforcement on the authority of anyone's
particular god.
Second, most governments - including ours - reject the idea of
enforcing through law many of the Biblical God's commandments - for
example, those that prohibit work on the Sabbath or the creation of
graven images, and the parts that refer complacently to slavery
(commandments 4 and 10).
Third, contrary to the fundamentalists' view, many biblical
scholars point out that if the Israelites had just escaped slavery
in Egypt and were wandering in the desert, they would hardly have
had slaves of their own, nor houses nor cities with gates, yet all
those are referred to in the commandments. That indicates that the
commandments were not given at Mt. Sinai but formulated later by
scribes for a more developed society and back-dated by being
inserted into the Exodus to give them more authority.
So Scalia's view is ignorant, false, tendentious, authoritarian
and literally un-American.