Don Herzog is weirded out by Nino Scalia:
Left2Right: Justice Scalia's blooper: News flash, or, dubious blast from the past: like the medieval theorists, like the Stuart monarchs, Justice Scalia doesn't believe that political authority ascends from the people. Here's what follows his joke.
JUSTICE SCALIA: 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.
. CHEMERINSKY: I disagree, Your Honor. For the State to put that symbol between its State Capitol and the State Supreme Court is to convey a profound religious message....
JUSTICE SCALIA: It is a profound religious message, but it's a profound religious message believed in by the vast majority of the American people, just as belief in monotheism is shared by a vast majority of the American people. And our traditions show that there is nothing wrong with the government reflecting that. I mean, we're a tolerant society religiously, but just as the majority has to be tolerant of minority views in matters of religion, it seems to me the minority has to be tolerant of the majority's ability to express its belief that government comes from God, which is what this is about.
There are different claims here. Justice Scalia appeals to 'our traditions.' He urges that the 'vast majority' may 'express its belief that government comes from God.' (This blatantly implausible claim about what the vast majority believes reminds us why the law is reluctant to let judges take judicial notice of facts not on the record.) But — it bears repetition — he asserts in his own voice 'that government comes — derives its authority from God.' That, he tells us, is a 'fact.'
Nino Scalia's views on this are profoundly--there is no other word for it--UnAmerican. Here in the United States, we are all children of Thomas Jefferson. God does not give us rulers. Instead, God gives us rights: to life, liberty, and the pursuit of happiness. We then institute governments to secure these rights, and they derive their just powers from our consent, not from God's decree. Moreover, it is not the YHWH of Revealed Religion but instead "Nature's God" and Nature itself that are the source of these rights.
Where does Scalia's anti-Jeffersonian belief that God gives us not rights but rulers come from? It comes from Paul, whom Scalia likes to quote with approval:
Paul (Romans 13:1-5): Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? Do that which is good, and thou shalt have praise of the same: for he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
Note what Paul is saying in this passage. The government that is "ordained of God" and that one has a duty to obey is not a representative democracy or a merciful Christian king but the Principate--the government of the Roman Empire under the Julio-Claudian dynasty: Caligula, Claudius, and Nero. To fail to obey that government is contrary to the will of God: not just a crime but a sin.
What is the payoff from this belief of Scalia's that power comes from above? In his speech "God's Justice and Ours," Scalia says that God hates not just crime and open revolt but peaceful campaigns of civil disobedience which are, in Scalia's view, based on the false assumption that "what the individual citizen considers an unjust law... need not be obeyed."
Thus from Scalia's point of view for Blacks to sit at an all-White lunch counter when the law decrees they shall not--that is not just a crime but a sin. And the Martin Luther King, Jr. holiday--a celebration of his civil disobedience campaigns--is blasphemous: hateful to God, because it teaches people that there are circumstances in which they should disobey those whom God has commanded them to obey.
Now this is a free country. And Nino Scalia is allowed to break with those like Jefferson, Madison, and Lincoln who think that legitimate power ascends from the consent of the people. It's a free country. He can take his stand with those like James I Stuart, Innocent III, and Khomeini who think that legitimate power descends from God.
But does such a guy have any business being a Justice of the Supreme Court of a free country? No.