Thursday, August 21, 2008

Justice Scalia on American Civil Religion

He well understands the concept until he gets to the Ten Commandments.

Justice Scalia, in his dissent in MCCREARY implies that "monotheism" has some type of constitutional privilege over non-monotheistic religions, at least in the context of government endorsement of monotheistic, over non-monotheistic religions. In that opinion he writes:

Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another....That is indeed a valid principle where public aid or assistance to religion is concerned...or where the free exercise of religion is at issue...but it necessarily applies in a more limited sense to public acknowledgment of the Creator.

If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists. The Thanksgiving Proclamation issued by George Washington at the instance of the First Congress was scrupulously nondenominational, but it was monotheistic.


Let me try to explain what I think is going on in Scalia's head. He is willing to entertain the notion that the Establishment Clause does more than forbid a national Church, that government may indeed be forbidden from favoring one sect over another in its mere acknowledgments, and he is looking to the historical record for evidence. What he finds is that all of the first four Presidents, like the Declaration of Independence, commonly invoked God in their public pronouncements. But he also finds that their invocations were "scrupulously nondenominational," so much so that they hardly can be termed "Christian" or even "Judeo-Christian." As Scalia notes, "This is not necessarily the Christian God (though if it were, one would expect Christ regularly to be invoked, which He is not)" and,

All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history, and all the other examples of our Government's favoring religion that I have cited, have invoked God, but not Jesus Christ.


Scalia instead dubs him "the God of monotheism." And further notes, "[t]he three most popular religions in the United States, Christianity, Judaism, and Islam -- which combined account for 97.7% of all believers -- are monotheistic."

So Scalia doesn't really answer whether it is constitutional for government to endorse in its mere acknowledgments, one Christian sect over another, Christianity over Judaism, or Christianity and Judaism over Islam...but instead he concludes, based on the historical practice of the first four Presidents, it is constitutional to endorse "monotheism" over "non-monotheism." Monotheism therefore is a Lowest Common Denominator among Judaism, Christianity, and Islam.

With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.


Scalia then connects such "monotheism" with the Ten Commandments themselves.

All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life....Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God.


Here is the fatal flaw in Scalia's argument. He fails to include "another" monotheistic tradition within the Lowest Common Denominator, arguably the most important tradition for purposes of this discussion because it happens to be the personal religion of the first four presidents he mentioned: theistic rationalism. And the theistic rationalists did not necessarily believe that "the Ten Commandments were given by God to Moses." Nor did they ever say so in their public invocations of God.

These Founders did believe in a God, in fact believed that reason discovered God exists and grants men unalienable rights. But reason, not revelation is where ultimate truth is to be found. And these Founders disbelieved a great deal of revelation which they regarded as either unreasonable or unproven. And Moses divinely receiving those Commands was one of those truths about which our Founders were highly dubious.

For instance, here is Jefferson in an 1824 letter to Adams:

Where did we get the ten commandments? [The Bible] itself tells us they were written by the finger of God on tables of stone, which were destroyed by Moses; it specified those on the second set of tables in different form and substance, but still without saying how the other were recovered. But the whole history of these books is so defective and doubtful, that it seems vain to attempt minute inquiry into it; and such tricks have been played with their text, and with the other texts of other books relating to them, that we have a right from the cause to entertain much doubt what parts of them are genuine.


Adams likewise doubted that we had the right version of the Ten Commandments.

When and where originated our Ten Commandments? The Tables and The Ark were lost. Authentic copies, in few, if any hands; the ten Precepts could not be observed, and were little remembered.

If the Book of Deuteronomy was compiled, during of after the Babilonian Captivity, from Traditions, the Error or Amendment might come in there.

– John Adams to Thomas Jefferson, Nov. 14, 1813.


There is nothing in the private writings or public acknowledgments of the two other Presidents that contradict Jefferson's and Adams' sentiments here. They were all men of reason. Therefore, if we include the creed of the first four Presidents as part of the lowest common denominator of monotheism, we would have to exclude the notion that the Ten Commandments were divinely given by God.

What we would be left with in our LCD is this: There is a God; He grants us unalienable rights; He is concerned about human beings and will intervene, especially if we don't respect the unalienable rights of others and nothing more. The first four Presidents never more specifically defined God's attributes when publicly acknowledging Him.

In other words, a generic natural religion founds America's public order. "Nature" meaning what is knowable through reason, not revelation. Revealed religion is to be consigned to the private sphere of society (as Harvey Mansfield, Michael Zuckert and Walter Berns argue that our Founders, after Locke, intended).

"Natural religion," as it were is the religion of "all good men." And it does not teach that God revealed the Ten Commandments to Moses. Reason never "discovered" or "confirmed" that.

16 comments:

Matt Huisman said...

I don’t know, Jon. I’m still having a hard time understanding how the private reasonings of a handful of men count as more significant than their public proclamations as representatives when we’re trying to establish what principles this nation was founded on.

Matt Huisman said...

[Off topic: It would be one thing for Adams to claim that Moses was a fraud and made up the whole 10 Commandments thing, but to question them on the grounds that they “were little remembered” and “could not be observed”?

As TVD would say, “Twit.”]

Jonathan Rowe said...

Matt,

Re #2 =, I say "heh."

Re #1, I understand your objection, but I reply, "ideas have consequences." My whole thing is examining how the secret heterodox ideas may have impregnated their public notions of "liberty" and "equality" for all, especially in religious matters.

But as Scalia would note, that equality of religious opinions had its limits in a generically defined Providence.

Pinky said...

.
It seems we could use a paper on the Articles of Confederation to learn if there is anything in that constitution that has anything to do with religion or a god.
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http://www.yale.edu/lawweb/avalon/artconf.htm

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Tom Van Dyke said...

The principle of federalism, Brother Pinky, that the individual states could deal with religion however they saw fit. Oft-elided in the discussion of these things, as if the Articles of Confederation or even the Constitution are the full measure of what is America is [or was].

And no, I didn't know your real name. Pleased to meet you, Mr. Johnson.

I strongly second Matt Huisman's objection to this line of argument. An exclusive focus on the religious beliefs of the first four presidents stunts the inquiry and purpose of this blog.

Jonathan quotes the very confidential exchanges between Adams and Jefferson well after they'd left public life---which qualify as amateur theology at best and in Adams' case, twittitude. I find them of only marginal interest and relevance, especially since they took great pains to keep their musings secret.

Tell me that Adams and Jefferson would still have been elected president if everybody knew they thought the Ten Commandments were bogus.

I just don't see it.

bpabbott said...

Tom: "Tell me that Adams and Jefferson would still have been elected president if everybody knew they thought the Ten Commandments were bogus."

Tom, are you implying that the intent of the founders with respect to religious liberty lacks relevance because their lack of orthodox faith would have prevented them from being elected if understood by the citizens of their day? ... that the Constitution and Bill of Rights may be held in contempt because of they kept their opinions of religion private?

bpabbott said...

Jon,

Excellent points on Scalia and the Ten Commandments.

It appears (to me) that Scalia is confusing the religious accommodations of the early Presidents' proclamations with endorsement of religious doctrines ... which some those same Presidents' are on record as critiquing.

I'll also note that Scalia's position completely ignores the Deism that was relatively common during the revolutionary period.

In any event, while I personally favor accommodations (especially over compromises), it worries me that many with credentials of sectarian leadership may apply a "wedge strategy" by beginning with a position of accommodation and morph it into an endorsement :-(

... or am I just being paranoid?

Pinky said...

.
TVD sez, "Pleased to meet you, Mr. Johnson."
.
Maybe you remember or someone has told you about a popular tv advertisement from the last century (sounds like a long time ago). It went like this, "You can call me [Phil] and you can call me [Pinky] but, you doesn't has to call me Johnson."
.
It's good meeting all you people as well. Even Dan and Barbwah and I was sorry to see them vacate the premises.
.

Tom Van Dyke said...

Ben, I agree with you that some religious types are trying to mutate accommodation into endorsement.

There is also a mirror twin trying to turn accommodation into "neutrality" into a "naked public square."

We all have our boogiemen; mine are the latter, as I think they have a better chance of success. The former had their shot.

bpabbott said...

Tom: >>There is also a mirror twin trying to turn accommodation into "neutrality" into a "naked public square."<<

I think this is another subject where there are two perspectives that get confused. There are theists who are see 10 commandments in the court house as part of what you mention. Some of these theists are enraged when their 10 Commandments must share center stage with other influences of justice. Some of these theists are enraged when they do not ... of course the atheists tend to align with the latter.

There are other theists and atheists who see public proclamations of an individuals faith to be entirely consistent with the 1st amendment. And yet others (atheists as well as theists) who find such suspect ... perhaps manipulative? ... and then there are a few deluded individuals who think the President saying "God bless America" is unconstitutional (more likely atheists than Christian for sure).

However, in my opinion there are far more parasites of religion pointing at the "few deluded individuals" in the hopes of soliciting a sufficiently strong reaction to drive a wedge between the 1st amendment's intent and its practice.

Tom: "We all have our boogiemen; mine are the latter, as I think they have a better chance of success. The former had their shot."

Mine are obviously the "former". Regarding their chance of success, they are more active than ever, and are much more likely to successfully manipulate the sentiments of the majority (imo).

In any event, who is more likely to successfully distort the constitution isn't a point that I'm so interested in. I'm more interested in what qualifies as constitutional.

What are your thoughts on my comments regarding the 10 Commandments?

I'm also interested in some examples of a "few deluded individuals." After giving it some thought and Googling, I was unable to document any ... although there are sufficient claims that I'm certain at least a few do exist.

Final note, here is a position I like.

Tom Van Dyke said...

Ben, I gave a glance to your link out of respect and courtesy, but I don't really care what some other guy thinks. I'll continue to insist we make our own points. I cannot think of anyone I 100% agree with, although Justice Scalia gives me a run for my money.

Per your comments on the 10 Commandments, my response is simple, and I would enlist our resident law professor Jonathan Rowe on this point of law: that custom and practice are also part of the law when it includes common sense.

200+ years into the Constitution and its interpretation, shall America demolish its culture, its ethos, in the name of law?

This was another point I broached in a previous post. I would suggest that to reduce a nation, or the human experience, to the letter of the law is lose everything. We are not robots, and per Immanuel Kant, we're not even clever devils.

Jim Sweeney said...

The provenance of the ten commandments is clearly suspect, since it's based solely on revelation. Much of its content is strictly religious as well. What part of "I, YHWH, am a jealous god" is mere ceremonial deism?

I resent the implication that my pagan ancestors were necessarily lawless. Thousand-year-old accounts are unreliable, but the difference in ferocity between my Christian Irish and pagan Scandinavian ancestors wasn't considered remarkable at the time.

More to the point, the abjuration of coveting one's neighbor's ass is positively un-American, anti-capitalistic, obsolete.

bpabbott said...

Tom: "200+ years into the Constitution and its interpretation, shall America demolish its culture, its ethos, in the name of law?"

Tom, to what do you refer?

bpabbott said...

Tom: "Ben, I gave a glance to your link out of respect and courtesy, but I don't really care what some other guy thinks."

Tom, those links were provided as examples of my opinion that many secular/sectarian debates are founded in perspective rather than substance and that there are individuals on each side who are eager to manipulate perceptions/sentiments to the point that they are closer to paranoid fantasies than reality.

Thus, my desire was not to substantiate my opinion with that of another's, but to provide examples sectarian manipulators to illustrate my point that religious liberty remains a focus of attack by such individuals. In turn, I'd asked you to provide some examples of the same sort of manipulation by anti-religious extremists.

I'm still interested in that, as I have no exposure to it.

Jonathan Rowe said...

I would enlist our resident law professor Jonathan Rowe on this point of law: that custom and practice are also part of the law when it includes common sense.

The answer to your question is "yes of course." The problem is what happens when custom and practice conflicts with ever expanding constitutional ideals, like liberty and equality.

bpabbott said...

Regarding threats to liberty by deluded anti-theists vs deluded theists, I find this example to be beyond belief, and yet funny as hell ;-)