Nino Scalia, by Grace of God Justice and Lord

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.

Comments

[Stuart]

That, or there's my wife's shorter assessment uttered to me while listening to some audio of Scalia's comments during the case: "That guy scares me."

[dogfacegeorge]

Impeach Scalia. Impeach Scalia now.

[Tony A]

Let's not be too harsh on "medieval theorists". They believed that while the sovereign was granted power by God, he had to govern justly. Otherwise, the sovereign lost the divine mandate, and resistence became legitimate. Remember also that the history of church-state relations in the medieval period was a constant tussle between the church and the most-powerful-king-of-the-day over who was the real boss. The real ascendency of the "absolute right of monarchs" can be traced to the reformation, Calvinism in particular. There was no longer any separation of powers, but one theocracy (take the orthodox world as an example of this).

This is where Scalia is really coming from. I've been following his views on religion for quite some time, and it's clear that he is at heart an old-time Calvinist, despite his nominal catholicism. For a start, his judgements do not reflect catholic teachings in the slightest.

I would go further and argue that the 10 Commandments issue is really an attempt to establish the preeminence of the Calvinist variety of protestantism, which is where American fundamentalism ultimately comes from. Why? During their awful desecration of religious art, the Calvinists replaced it with the 10 Commandments, which reflected: (i) iconoclasm; (ii) the supremecy of "the book" and the written law over catholic teachings. You are free to hold these beliefs if you like, but the current 10 Commandments controversy is simple an attempt by the fundamentalists to foist their theology on the rest of us (inluding non-Calvinist Christians) and to demonstrate that Calvinism is really the state religion of this country. The media, which of course lumps all Christians together in the "conservative" camp (God forbid!) fails to see this. Just look at one sign: which numbering of the Commandments do they want displayed? Yes, it is the Calvinist numbering. And yes, other traditions (including Catholics) use different numbering.

Finally, when you quote the bible, why must you use the ridiculously antiquated King James version? There are plenty of fine modern translations. I recommend the New Jerusalem Bible.

Tony.

[Tim Silman]

What can one say to, or about, this man? And this is who some conservatives are proposing be the next CHIEF justice if/when Rehnquist retires during Bush's term? The blatant disregard that Scalia has shown for judicial precedent, established legal reasoning, and in this case, the foundations of our democracy, cannot be understated.

[Mark]

The real problem is that these fuckers keep reinforcing the idea that a mythical being somehow dropped these laws on us. The coward in the white House constantly refers to god-given laws.It also doesn't help that a lot of people are incapable of understanding the basis of government.

By the way, where are the adultery laws, the sabbbath protection laws, the anti-envy laws, the one-god laws?

All power to the people.

[dogfacegeorge]

Scalia says that most of us believe in "monotheism." Shouldn't we be upset then, that he wants to promote the First Commandment, which rejects monotheism?

[todd]

> he had to govern justly.

As the hierarchy is ordained by god there's no moral way to get rid of rulers who rule unjustly. It would be a sin to do so. The people just have to accept that it is god's will. Richard III is a good example of the conflict when deposing a rule who rules by the will of god.

One would think any one reading the constitution would understand the US is founded on different principles. The Duke of Scalia wishes it were otherwise.

[Davis X. Machina]

Who needs the Federalist Papers when we've got Bossuet (Politics Derived from Holy Writ)?

"Look at the prince in his cabinet. Thence go out the orders which cause the magistrates and the captains, the citizens and the soldiers, the provinces and the armies on land and on sea, to work in concert. He is the image of God, who, seated on his throne high in the heavens, makes all nature move. . . ."

[Dennis]

Tony A,

I think most American fundamentalists are from the anabaptist tradition and/or Arminians and/or dispensationalists, not Calvinists. The Calvinists are represented by the Presbyterian and Dutch Reformed churches. While they welcome converts, I do not think they are about forcing themselves on others. The Divine Right rulers were RC, and, aside from the Belgic Confession, there does not appear to be a strong Calvinist tradition of regarding the government as divine.

[praktike]

So does Nino believe in velayat-e-faqih?

[Seems likely, at some level.]

[Ted K]

Almost every state has a statement like the following in the preamble to its constitution.
"We, the people of California, grateful to Almighty God for our freedom in order to secure its blessings, do establish this Constitution.", California Constitution, ratified Nov 13, 1849

Some of the God-talk is barely disguised YWHW; some is Nature's God; none is Jesus.

There is a strong Calvinist tradition of thanking God for liberty, a tradition that I think comes from the politics of the Reformation when Calvinists spent some very important time in the minority. There is also a strong Calvinist tradition of depending on government to restrain the evil impulses inside us all.

The American civil religious tradition about how to square "the powers that be are ordained of God" with republicanism, contested elections, and impeachments is pretty darn muddled. The nineteenth-century folks I found who tried to square St. Paul with the guys from Philly ended up confusing themselves instead. The best they came up with was that the Sovereign people are ordained of God (Jefferson's thought reduces to this if you find the right quotes).

But, I don't think this is quite what Scalia was referring to.

[larry birnbaum]

A number of years ago Boulder Colorado passed an ordinance forbidding discrimination against gays and lesbians, and the State of Colorado then passed a law overruling any such laws by local jurisdictions. Which then led to a lawsuit that I believe went to the Supreme Court. In any case at one point Scalia commented that he didn't think the courts ought to get involved in this sort of "kulturkampf."

It was at that moment that I conceived of the perfect title for his autobiography: Mein Kulturkampf.

[Lee A. Arnold]

Justice Scalia's grave intellectual error proceeds from a profound misunderstanding of the basis of his own beliefs. And in fact it prevents him from genuine consciousness of God. The injunction to follow the authority of God is an INTERIOR injunction: to be followed in one's own being. Attempting to apply it to the exterior world results in word-orientated beliefs that distort the meaning of the interior injunctions: by reifying concepts without an exterior referent, by circular chains of reasoning, and by the psychology of needing to win arguments. The resulting "explanations" serve to reinforce the fallen ego in its certitude.

Calvin, for example, signed dozens of death warrants for the execution of other sinners.

Indeed the assertion that accepting Christ as your personal saviour is enough for "salvation," is one of the biggest and most harmful errors. Often minor shakes and shimmers occur in the field of perception, to make the person think something lasting has occured. But the continuing interior torture, of which the separted soul may be almost entirely oblivious, is evidenced in the contortions of the facial expressions.

It is true that committing a civil disobedience will not get you to god consciousness. It is also true that god consciousness may demand a civil disobedience.

You have to be careful not to be misled by St. Paul because (1) he had only a short taste of higher consciousness--the conversion on the road to Damascus--and started spinning out rules and regulations after that, to a degree of over-specificity unrecorded since Leviticus; and (2) much of his writing is aimed at keeping the young church together, dealing with outsiders, etc.; in other words, many of his injunctions are particular to specific external circumstances in the face of enormous political oppression, and are often long-distance letters in response to pleas for group guidance.

One wonders what Scalia thinks of Jesus taking food from the farmer's field! Perhaps he would contort his features yet further, and explain that the Lord himself is exempted from private property laws.

Next up: "takings" and the Endangered Species Act!

[Rob Sperry]

"But does such a guy have any business being a Justice of the Supreme Court of a free country? No."

The question becomes how do you prevent such a thing through the rule of law given the population that we have?

[jri]

"God gives us rights: to life, liberty, and the pursuit of happiness. "

God can't give anything if he doesn't exist. Our rights are inalienable and endowed by our creator. In other words, my mother, by the fact of her giving birth to me, gave me my rights.

When I heard Fat Tony quoted as saying that government gets its authority from god in a way that implied it was settled law, I just shook my head and wondered, "and this man is supposed to be brilliant?"

-

[spiny norman]

If you have not heard it before, Unka Nino is not just your garden variety RC. He's one of the extra-special varieties--a member of Opus Dei, founded by a close associate of....Francisco Franco.

This all comes dangerously close to Russell's parody of Hegel's views on citien's rights (these days we'd call it a shorter Hegel):
"True freedom is the right to obey the law"

The parallel between the views of the mullahs and the views of the American right really is frightening. Particularly because, unlike the US, the mullahs do not spend as much on 'defense' (Orwellian term) as the rest of the world put together.

[dogfacegeorge]

Patrick,
Do I understand you to say that the government has a First Amendment right to the free expression of relious preferences? Most of us think of the First Amendment is a restriction on government, not as a grant of rights to the government.

[Bernard Yomtov]

Todd,

I think you mean Richard II:

"The breath of worldly men cannot depose
the deputy elected by the Lord."

In fact the breath of worldly men, or their swords at least, did suffice, though things were rough in England for a time thereafter.

It's interesting though, how the Scalia view fits right into Bush's ideas about himself.

[ogmb]

SCALIA: "It's a symbol of the fact that government comes — derives its authority from God."

JEFFERSON: "[all Men ... are] endowed by their Creator with certain unalienable rights"

Sully, if you don't understand the fundamental difference between those two statements why don't you just shut the f*** up?

[Quentin]

Is he really? In my book Opus Dei is an illicit organization. The present pope gets off on it. Religious extremists like Scalia can make the U.S. seem a very dark place nowadays. How did this ever happen? What makes so many in the U.S. so neurotically religious? Don't tell me 'tradition'. Their influcence makes the future seem bleak. In fact, Scalia is an intellectual ignoramus.

[JRoth]

So is Patrick just going to continue his linkless la-la-la-can't-hear-you regarding his initial, egregious error?

Patrick, what Scalia says /= what Jefferson said. One of these fellows was a Founding Father. Unless you want to argue otherwise - argue that Jefferson was wrong, or that the plain-English meaning of the Declaration is wrong - shut the F up.

I will say this - because of this country's f-ed-up religious history, and the reluctance to cover religion/religious history in schools, Americans are wholly unequipped to understand what's wrong with what Scalia said, and what he seems to believe. Even those few who might be able to explain the distinction between faith and works would most likely prattle off doctrine, not discuss it thoughtfully, the way they might be able to do with, say, the Prevent Defense.

Which is why it's easy to hoodwink Americans when it comes to religion. Recite off a few buzzwords (thanks, Gerson; your spot in Hell is assured), and 60% of churchgoers will follow you anywhere. Ugh.

[P O'Neill]

All of Scalia's critics need to read Fafblog, which convincingly recounts how God was in fact personally involved in writing the Constitution.

http://fafblog.blogspot.com/2005_03_06_fafblog_archive.html#111053651754590151

[Giles Robertson]

This is a real point of pedantry, but "James I Stuart" isn't how any British historian would describe him - "James I"/"James VI and I" (look up details of the union of the English and Scots crown for the reason for the latter), and then perhaps a qualifier to say what country he came from - "James I of England", or even "James Stuart", but not "James I Stuart"

[Why not? First name, number, and dynasty all seem to be useful pieces of information.]

[wml]

Patrick: If Scalia was paraphrasing Jefferson, then he mispoke or minsunderstood Jefferson.

JUSTICE SCALIA: ...It's a symbol of the fact that government comes — derives its authority from God...

Jefferson: 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,

Jefferson says government authority depends on the people , not Nature's God. Scalia seems to be saying it is a "fact" that government's legitimacy derives from God (and in particular the God of the 10 commandments)

[ogmb]

"You misunderstand my point completely."

What Sully means is that the free citizens which make up the government have the right to express their religious beliefs on the buildings they occupy by virtue of their public positions.

[Uncle Jeffy]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Patrick and Antonin - just what part of "NO LAW" don't folks like you two understand? This whole thing is silly. Whether or not you believe in one god, an infinite number of gods, anything in between, or none at all, the Government (including state and local governments) cannot tell you or anyone else ANYTHING about it. And that includes putting the Ten Commandments on courthouse walls. The fact that the writers of the U.S. Constitution put that language in tells me that, while they may all have believed in god and while most people then and now also believe, they did not intend to provide government with any excuse to ram such beliefs down anyone's throat.

[knut wicksell]

Patrick Sullivan (and Justice Scalia) would benefit from reading a competent history of the Constitutional Convention, which deliberately eschewed references to the 'Creator', on the quite sensible grounds that it introduced a dangerous superstitious element into what amounts to a civil contract between people and their government.

Like other Americans Sullivan and Scalia is each entitled to his own private Idaho of superstition; but neither is entitled to use the government to enforce that superstition on people who don't share it. I can't believe I have to write this out in this day and age. I hope God doesn't strike me down with a load of bird crap from an incontinent seagull.

[wishful]

In the faith-based rehabilitation that we are paying for in our prisons, there is a parallel being taught to women prisoners. I read (can't remember where right now) that when a woman prisoner asked if she had to be submissive to her husband even if he is abusive, the prison rehabilitator answered that, yes, she did. He recited Paul and the above-mentioned Bible passage, saying that all of us are required to obey our rulers. In our homes, women are ruled by their husbands or fathers, whichever it may be, and as citizens, we are ruled by our elected and appointed officials, for good or bad. Thank God we have decided to provide faith-based rehab--Scalia must be smiling wildly.

[dogfacegeorge]

ogmb,
Although I think you're right about what Patrick means, nevertheless I'm not sure. Maybe he means exactly what he says, that people can go onto any public property and post whatever religious beliefs they want. I suppose I could go to the White House and paint quotations from the Koran all over the walls. The government would be precluded by the First Amendment from stopping me. Is that what you mean, Patrick? Or is it only public officials who can do so?

[ogmb]

dfg, I think what he means is that the government has no right to interfere with the government's right to express its religious beliefs on public buildings. Unless it is authorized to do so by God.

[dilbert dogbert]

When I read this my first thought was of the delicious comment in response to the mewing of some that there was not enough rethug university profs or at least the numbers did not match the party distribution. The response was that, at least at Stanford, only some 0.0X% percent of profs there belived in devil posession where some XX% of the population acribed to this belief. Stanford was thus descriminating against those who belived in posession.
Might be time to look thru the files and find and update that passport.

[PW]

Well, you know what "nino" means -- "kid." Diminutive. Cute l'il Tony. Odd in a Supreme Court justice.

But that's what he is -- he's aptly named. A spoiled, bright, self-centered kid who can't get past his long-held beliefs. It's not his Catholicism which makes him rigid. His is the rigidity of the narrow-minded, the narcissist. We have to wonder how the system of appointing judges could have failed to catch this. There's no way he will put good of nation before personal belief.

[masaccio]

The worst part of this is that Scalia's jurisprudence is consistent. This idea that government is god-given is the basis for the "sovereign immunity" cases such as Alden v. Maine and Seminole Tribes.

Alden held that the employees of the State of Maine are not entitled to the benefits of the Fair Labor Standards Act, and so, have no right to a 40 hour week or overtime pay. Maine, you see, is a beneficiary of the doctrine that "the king can do no wrong" and since its authority derives directly from the Almighty, neither State nor Federal Courts can require Maine to submit to the laws which bind the rest of the nation.

Yeah. Whoo hoo. State constitutions are great. But, so?
The First Amendment applies to states because of the 14th Amendment's Section 1, according to the 1925 Supreme Court ruling in Gitlow v. New York.

Whatever Jefferson wrote, intended to write, intended to convey, it's not the law of the land. With respect to whether the Ten Commandments should be posted on public property, I don't really care what Jefferson said if it's not in the Constitution.

"We the People of the [US]... do ordain and establish this Constitution of the [USA]...." Nope, don't see God in there. (God isn't even mentioned in the Constitution (though this argument is weaker (I can hear those privacy opponents now ("there is no phrase 'right to privacy' in the Constitution"))

(I am curious whether Scalia would argue that, because this passage does not explicitly exclude God from also ordaining and establishing the Constitution, one may include religion/God as a basis for some US law? Of course, the counter being that the law doesn't explicitly exclude animals from establishing and ordaining the Constitution, either.)

[tristero]

Glad to see that someone of influence in the blogosphere has finally noticed this about Scalia. I wrote about it in detail two years ago, here. I began "It is genuinely difficult to believe that an American would hold [Scalia's] views, let alone an American appointed to one of the highest positions of power. But Scalia does. And we should be aware of it."

On July 8, 2003, I wrote, in a lengthy analysis of the Declaration and Scalia's opinion of it, the following analysis of what the Declaration says:

"In its first two sentences, the Declaration of Independence acknowledges the ancient divine right of kings, rejects it, then asserts a different divine right, a divine right of the people. Here's how:

"In the first sentence, Men seem quite removed from God in a hierarchy which descends like this:

"1. God
"2. Laws of Nature
"3. People (i.e. the State)
"4. Men (citizens within the State, not mentioned, in fact, until the second paragraph).

"This simple formulation appears to be in accord with Scalia (and his particular reading of Romans 13: 1-5). Men are beholden to the State which is beholden to the Laws of Nature, which is beholden to God. Therefore, as the state is above Men and consequently closer to God, Men owe their allegiance to the State.

"But there is one glaring problem in this formulation which surely loomed large in all the authors' minds as they worked on the Declaration. By what right do Men, at the lowest end of this hierarchy derive the power to dictate to those above them? In a very real sense, a declaration of independence, a dissolving of political ties that bind a People to a Government would upset the law of God by placing Men as at least equal to the State. For are not Men subservient to the State?

"No! says the second sentence of the Declaration. The State exists only via the "Consent of the Governed." The actual structure proposed by the second sentence is closer to something like this:

"1. God
"2. Laws of Nature which endow Men with Life, Liberty, and the Pursuit of Happiness.
"3. The State, which is derives its "just Powers from the Consent of the Governed."

"In this second sentence, the State is clearly beholden to Men who, endowed by the Laws of Nature with rights, are beholden only to God.

"There's nothing obscure about this at all! Men trump State. Scalia is just plain wrong to think that American democracy says differently, even if those Men are "fools and rogues (as the losers would have it)". For in American democracy, those Men, no matter how foolish or criminal their conduct, are surely responsible for their government, but just as surely answer only to God."

[Ace Pumpkin]

Sorry, the last anonymous post was mine (now only "slightly" anonymous!).

[liberal]

Patrick R. Sullivan wrote, "What is absolutely, completely missing from the words of the Amendment, and from the actions of the people who ratified it, is any suggestion that the official religious position of the Federal government is atheism, agnosticism, secularism, or any other hostile-to-religion belief."

Wrong. The absence of religion is not equivalent to hostility towards religion, nor an endorsement of atheism or agnosticism.

"If there is going to be art on display at taxpayer expense on public property, then religious themed art has to be treated equally with other viewpoints."

That's the right-wing "viewpoint discrimination" shibboleth.

"Meaning, that through the give and take of politics, we'll get art that best represents the wishes of the electorate."

LOL!

"Just like we got Social Security, Medicare, and war with Iraq."

Given the lies put out to deceive the public on Iraq, that's a funny argument to be putting forward.

[liberal]

Patrick R. Sullivan wrote, "Correct. And it is prohibited from interfering with the peoples' free exercise of their religious beliefs. Which denying them the right to express said, on public property, would do."

The issue is not the right to express religious beliefs on public property; no one is talking about preventing students from praying in schools, or people from praying in parks.

The issue is the expression of religious belief that appears to have the imprimatur of government.

[dogfacegeorge]

liberal,
Right. And Patrick is arguing that those who win elections can erect whatever religious symbols they want on any public building or on any public land.
Patrick, if the Suuni come to power in your town, would you have any constitutional objection if they raise your taxes to get the money to paint slogans from the Koran all over City Hall?

[Bernard Yomtov]

"Further, in the body of the Constitution, there is a prohibition against religious tests for public office. Yet, Chemerinsky is arguing exactly that there should be, and that the Ten Commandments flunk the test."

What office do you think the Ten Commandments should be named to, Patrick?

[Ted K]

Patrick Sullivan wrote three accurate paragraphs and then the following:

"What is absolutely, completely missing from the words of the Amendment, and from the actions of the people who ratified it, is any suggestion that the official religious position of the Federal government is atheism, agnosticism, secularism, or any other hostile-to-religion belief. Which is what you need to censor the free exercise of religious belief you see in displays of the Ten Commandments in Texas (and in three different places at the Supreme Court itself)."

What is consistently visible in the discussions about religion and the state (I think I need to work this chapter into an article) is that the founders were terrified of another religious war. They wanted to try to depoliticize religion, or at the very least to avoid any situations where religious factions would vie for control of the coercive power of the state. So on the Federal level, the official position - from the Continental Congress through the founding and the post-founding eras - was that religion was a state thing and we don't want to mess. We won't impose Virginia separation on Massachusetts if Mass. won't impose its Puritan establishemnt on Virginia.

After 1791 the states fairly quickly moved to a similar position on religion and also tried to get it out of political contests. They got rid of their religious tests (some more slowly than others); they got rid of their remaining religious establishments; they kept the notion of a vague general Providential blessing on the states and on the nation but they also did their best to remove all specific value from that blessing.

The founders all agreed that civil authorities should not determine or endorse religious doctrines. They disagreed on the case-by-case details.

Should the U.S. Mail coaches stop on Sunday? Yes because nature ordains that we work better if we rest, no because that would be using the national legislature to determine that first-day Sabbatarians are correct and Seventh-day sabbatarians are mis-reading their Bibles. (The nos won the fight in 1828-29; the yes votes won after telegraph and railroad made the speedy transfer of commercial information less crucial for folks in the South and West.)

I digress.

[Robert Waldmann]

I thought the guys in Philly (1776 version didn't agree).
IIRC the original draft of the declaration began
"We hold these truths to be self evident, that all men are created equal and that from that equal creation derive certain inalienable rights including ...
and that the words "creator" and "unalienable" are there because of amendments.

Typepad wisely devoured my arguments against P Sullivan.
I just that our equal creation that "Robert Musil" didn't show up this time.

[Quiddity]

Some biblical scholars, using textual analysis, believe that Paul's chapter 13 is an insertion - probably at the time when Christianity was trying to integrate itself within the Roman Empire.

[Lee A. Arnold]

I think maybe part of Scalia's argument has a hidden purpose: he wants the "majority" to be able to put a religious symbol on government property, but he hopes to avert a challenge from minorities to allow other symbols EQUAL REPRESENTATION UNDER THE LAW. This easily follows from his argument otherwise. Think of all the challenges for representation of:

Atira (the Pawnee Sacred Mother), Buddha, Confucius, Dionysus, Eros, Fafnir (of Fafblog), Gaia, Horus & Isis (in the Egyptian nook), James Joyce (for me only, I guess), Kuklikimoku (Polynesian war-god, and you better mind your manners), Loki, Mahavira (the Jain), Nanak (the Sikh), Odin, Pan, Quetzalcoatl, Ramakrishna, Shiva (the Destroyer), Taoism, Upanishads, Vishnu, Wachabe (Sioux and Osage black bear god), Xena the Warrior Princess (divinized briefly in the fourth or fifth season, I believe, so there just might be a challenge), Yeng-Wang-Yeh (Lord of Death & judge of souls), Zoroaster...

...and we should not forget Zeus...

ALL put up, at the public purse!... What a stupendous hall of shrines that would be!

[CaseyL]

I can't get over the sheer ignorance - of history, of philosophy, of political reform - you need in order to believe "God gave us our rights and our government."

Jesus didn't invent democracy, and damn sure no Church Established did. Hasn't anyone here ever heard of Athens?

Christianity's human rights record is appalling, abysmal, horrifyingly bad. 2000 years of murder and mayhem; yet suddenly the same Bible that justified genocide, holy war, and torture is the source of the Bill of Rights? The same Bible that was used to justify the Divine Right of Kings is somehow a pro-democracy text? How can anyone possibly come up with such absurdity?

Human rights as we understand them are a product of the Enlightenment, which was a reaction *against* religious-based philosophies. The Founders knew that - knew that one heckuva lot better than some of the posters here, and certainly better than the current crop of Jesus Freaks running the government. The Founders' references to God are Deist: not Catholic, not Protestant, definitely not evangelical. They knew that the minute you assert Divine Will or Divine Right, you open the door to religious persecutions, false messiahs trading on peoples' fear and ignorance, and leaders who pursue religious agendas at the expense of sound governance. Does any of this sound familiar?

It floors me that we're having this discussion.

We are having this discussion because the 49%+ don't know how to combat the total dismantling of this country. Every branch of govt is putting every aspect of our lives at risk. Opposites rule. Rich IS poor, down IS up, war IS peace. This person named Scalia is just one more shred of evidence that the nation has lost its collective mind. And its nerve. This truly is beyond Orwellian. We have met the enemy, and -- until such time as we awaken from our stupor and DO SOMETHING -- it, indeed, is us.

[Lee A. Arnold]

I meant to say, Justice Scalia is not only pushing for an untraditional interpretation of the first amendment, but he is pushing for a phony one-time application of his new interpretation (i.e. to the Judeo-Christian majority's views, only.) This is the same pattern as in Bush v. Gore...

[Movie Guy]

I used to reside in Augsburg, Germany which has some important religious history and meaning tied to it.

There are days when I miss living there. Today is such a day.

While I love the United States of America, I am not convinced that we will survive our immaturity and lack of reasoned thought processes as we move "forward".

The idea that Scalia serves on the Supreme Court is bad enough, but the thought that he may be the Chief Justice is a bit over the top. Alarming, actually.

Whatever happened to politicians and elected officials who had the maturity to not wear their religious views and affiliations on their sleeves or foreheads?

Where are the adult women and men who should be leading an entire nation, free of serious personal vices and disdane for others?

God help us all...

[ritchie]

"It comes from Paul, whom Scalia likes to quote with approval:"

This guy Paul, was he one of the signers of that Constitutional thingy you all are talking about?

[Robert Waldmann]

oops I meant to *thank* our equal creation that "Musil" didn't show up.

Brilliant Lee and not to be ruined by pedantically pretending you really wanted a god or goddess for each letter as in try

Freya, Jupiter or Juno if need her hubby for Z, Mithra (Mazdean almost beat out JC when the Romans were looking for a new god), Neptune ,Thor, Uhura Mazda (head god of Cyrus and Xerxes), Xipe Totek (Aztec shape changer god)

[ogmb]

"'make no law respecting an establishment of religion'. I.e., Congress was prohibited from disestablishing"

Sully Sully Sully Sully. "establishment". "disestablishing". Difference?

[Bruce Moomaw]

Is it not the case that the whole core of this damn debate is the unavoidable ambiguity over what we mean by "religion" and God"? By "God", do we mean a personal god, or a spiritual principle? The Buddhists get along just fine worshipping the latter -- and the same thing is true of all self-declared atheists and agnostics who nevertheless believe strongly in morality. They may claim to be non-religious, but they are certainly worshipping something other than themselves.

And is Scalia serious when he says that the governing principles of America -- or of any democracy -- hinge upon ALL of the 10 Commandments (a number which has always been ambiguous as hell anyway; if you look at Exodus, there's no clear indication of just what Moses' supposed ten core Commandments really were, and different sects have disagreed about them). Now, six of the Ten Commandments really are universally recognized central concepts of morality -- nobody but a sociopath believes it morally permissible to murder, to lie for selfish advantage, or to commit adultery. Those are unquestionably "the laws of Nature and of nature's God" referred to in the Declaration of Independence. But the other four are rules of ritual worship specific to the Judeo-Christian religion -- and, by an interesting non-coincidence, those are the four Commandments Jesus did NOT mention in the Book of Matthew when a young man asked him how to get into Heaven. (And, yes, I'm quoting Gregg Easterbrook -- http://www.tnr.com/easterbrook.mhtml?pid=927 -- although the idea was obvious even before he mentioned it.)

[Bruce Moomaw]

By the way, Scalia's "God's Justice and Ours" speech is even weirder than DeLong makes it out to be. He directly contradicts himself by announcing elsewhere in the speech that violent revolution against tyranny may be morally acceptable after all, which flies directly in the face of that quote from Paul -- but he never makes any attempt to clarify the circumstances under which he thinks that rebellion really is morally justified or not.

And at another place in the speech, in response to those who oppose the death penalty on the grounds that people are being executed who don't really deserve it, he sneers (as God is my witness) that they are seriously overestimating the degree of injustice done to those people because "to a Christian, death is no big deal". Of course, by that same argument, there's no need to punish murder at all because murdering someone does him no real harm. And THIS is the Court's supposed conservative intellectual light? Jesus Christ.

[liberal]

CaseyL's comments are very good. To repeat some of them:

"Christianity's human rights record is appalling, abysmal, horrifyingly bad. 2000 years of murder and mayhem; yet suddenly the same Bible that justified genocide, holy war, and torture is the source of the Bill of Rights?"

I don't know about the New Testament, but there are chapters in the Old Testament where God commands the (Israelites, I think) to commit genocide. At least insofar as slaying everyone except female children younger than childbearing age.

"Human rights as we understand them are a product of the Enlightenment, which was a reaction *against* religious-based philosophies."

Damn straight.

"The Founders knew that - knew that one heckuva lot better than some of the posters here, and certainly better than the current crop of Jesus Freaks running the government. The Founders' references to God are Deist: not Catholic, not Protestant, definitely not evangelical. They knew that the minute you assert Divine Will or Divine Right, you open the door to religious persecutions, false messiahs trading on peoples' fear and ignorance, and leaders who pursue religious agendas at the expense of sound governance. Does any of this sound familiar?"

Right on.

[jm]

If he disapproves of civil disobedience, what would be his opinion on something like, for example, a group of colonists deciding to declare their colony independent?

[enfant terrible]

"Now, six of the Ten Commandments really are universally recognized central concepts of morality -- nobody but a sociopath believes it morally permissible to murder, to lie for selfish advantage, or to commit adultery."

The last part is true only if everybody but a sociopath believes that women are property.

The second part, with the meaning you ascribe to it, is nowhere to be found in the Commandments.

And I just cannot imagine which SIX commandments fit your description. I can see something approaching universal value in at most three (murder, steal, perjure) - and none of those makes sense as a categorical maxim.

[enfant terrible]

"Now, six of the Ten Commandments really are universally recognized central concepts of morality -- nobody but a sociopath believes it morally permissible to murder, to lie for selfish advantage, or to commit adultery."

The last part is true only if everybody but a sociopath believes that women are property.

The second part, with the meaning you ascribe to it, is nowhere to be found in the Commandments.

And I just cannot imagine which SIX commandments fit your description. I can see something approaching universal value in at most three (murder, steal, perjure) - and none of those makes sense as a categorical maxim.

[Lee A. Arnold]

Robert Waldmann: Thank you! "U" and "X" are tough ones! Of course, you can always use "Uranus," and go for the obvious butt joke.

[enfant terrible]

It is time we start calling idiots idiots and lunatics lunatics. It is also time we take War on Terror seriously and bring to justice (pun intended) theocratic fanatics who actively work on overthrowing the US government.

It will be funny when Sully asks what the paragraph above has to do with Scalia.

P.S. Sorry for the double post. The new software is a bit slow and confused.

[enfant terrible]

"Of course, you can always use "Uranus," and go for the obvious butt joke."

Like this, perhaps, turning an oral argument into anal travesty:

Justice Scalia, is every citizen free to worship Uranus on public property?

[Harold Ralphson]

There is no God. Hence, therefore, ergo; government cannot possibly come from a God Nino.

[eyelessgame]

Is there any real possibility that anyone else but Scalia will be nominated to be Chief Justice when Rehnquist retires this year?

[enfant terrible]

"Is there any real possibility that anyone else but Scalia will be nominated to be Chief Justice when Rehnquist retires this year?"

Why not Anthony Kennedy, the man who made Bush president?

[postit]

Some insights on the religious tradition of ten commandment monuments.

http://www.boston.com/news/globe/editorial_opinion/oped/articles/2005/03/06/monuments_to_god_or_history/

[liberal]

Patrick R. Sullivan wrote, " 'What is consistently visible in the discussions about religion and the state (I think I need to work this chapter into an article) is that the founders were terrified of another religious war.'

"What is your source for this claim?"

Here's an initial web search result. Can't vouch for it.

From URL http://nosha.secularhumanism.net/
essays/sierichs7.html
(URL broken up purposely, as other URLs posted in Brad's comment section get truncated due to being too long without any whitespace)
" 'This is what Thomas Jefferson referred to when he wrote: "Is uniformity attainable? Millions of innocent men, women, and children, since the introduction of Christianity, have been burnt, tortured, fined, imprisoned; yet we have not advanced one inch towards uniformity. What has been the effect of coercion? To make one half the world fools, and the other half hypocrites. To support roguery and error all over the earth." [footnote 2]' "

Footnote 2 from that page: Jefferson, "Notes on the State of Virginia," Query XVII, "Writings," 1984, The Library of America, page 286.

[liberal]

Patrick R. Sullivan wrote, "The idea that the Founders were hostile to religious expression is simply ahistoric. They had religious services in Federal buildings. Congress opened with a prayer. Money was authorized for religious instruction of Indian tribes. Chaplains were paid, chapels were constructed on military bases. Presidents called for days of prayer and thanksgiving."

As I noted above, "The absence of religion is not equivalent to hostility towards religion, nor an endorsement of atheism or agnosticism."

Furthermore, in the context of your claim, from the same URL (http://nosha.secularhumanism.net/
essays/sierichs7.html)

--------------begin clip---------------
Madison elsewhere complained about what we would call a slippery slope in religious proclamations. "The 1st proclamation of Genl Washington dated Jany 1. 1795 recommending a day of thanksgiving, embraced all who believed in a supreme ruler of the Universe. That of Mr Adams called for a Xn worship. Many private letters reproaching the Proclamations issued by J.M. [Madison himself - Sierichs] for using general terms, used in that of Presidt W-n; and some of them for not inserting particulars according with the faith of certain Xn sects. The practice if not strictly guarded naturally terminates in a conformity to the creed of the majority and a single sect, if amounting to a majority." [footnote 7]

Madison spelled out one of his strongest warnings on this subject in an Oct. 17, 1788, letter to Jefferson. He notes that Virginia would not have adopted Jefferson’s Statute for Religious Freedom if the Legislature had believed that the majority of people wanted freedom of religion restricted. "Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents." [footnote 8] Thus, rights are to protect the minority - such as non-Christians - from tyranny by the majority. Christian prayers at government functions are exactly the type of fascism Madison warned against.
----------------end clip---------------

The footnotes are:

7) Madison, "Detached Memoranda," "Writings," page 765

8) Madison, "Writings," page 421

[ogmb]

"Can you argue with a straight face that Congress could have gotten away with passing a law disestablishing Massachusetts' official religion, in 1789?"

No I can't argue anything with a straight face whenever you're involved. You're the resident laughing stock here in case you didn't notice. In any case, your point was that the provision of "no law respecting an establishment of religion" makes DISestablishing a state religion unconstitutional. Repeat after me: Establish. Disestablish. Beginning. End. Not. The. Same. Thing.

This exchange is turning into an exercise in finding out how many times you have to have your ass handed to you until you recognize it as your own. Carry on.

[Bruce Moomaw]

Pat Sullivan: "What is your source for this claim [that the founders were terrified of another religious war]?"

Here's some more:
http://www.csmonitor.com/2004/0915/p12s01-lire.html . (Note particularly the specific quote from George Washington.)

http://www.virginiaplaces.org/religion/religiongw.html .(Note particularly his orders to the Continental Army's soldiers not to celebrate "Pope's Day".)

http://www.sunnetworks.net/~ggarman/tripoli.html . (See Article 11.)

Given the horrific record of European religious wars, the Founders would have had to be utterly insane NOT to worry about the dangers of religious schism.

[Matt Festa]

"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."

Whoa there Professor. I respect and admire your opinions as a distinuished and accomplished economist, but please be more cautious in your condemnation of a distinguished legal theorist.

No one here is in disagreement that the "source of government power comes from the consent of the people." but where is this consent derived from? It is derived from "nature and nature's God." Scalia is correctly making the point that God is just as legitimate a source for our natural rights as nature is.

[No, he is not. For Scalia--and Paul--the point is that the rulers, *whether they respect our natural rights or not*, are ordained by God, and that it is a sin to disobey them whether their commands are just or unjust. That's very different from saying that God is a source of the natural rights that our government is instituted to secure. Very different indeed. Don't pretend they're the same.]

In other words, at the level of politics, reason and revelation are in agreement on natural rights. They may not agree on the ends of those rights, but they do agree on what those rights are. The concept of "divine right of kings" is a particular interpretation of Christian politics and is not the only (nor, in my opinion) the best interpretation of Christianity. To get a more accurate picture of Christian politics than either the fundamentalists or you give, I suggest reading the ancient doctors of the faith (Augustine, Aquinas) and people like Jacques Maritain, Etienne Gilson, John Paul II, Lord Acton, etc.

Specifically, there is a Christian politics based on the distinction between the "city of man" and the "city of God" that leads directly to "consent of the government," liberal republics, and the saying "as I would not be a slave, I would not be a master."

Scalia is merely asserting that the source of these principles come from God as well as nature. There is no disagreement...

But these is besides the point since most modern political thinkers do not agree with the precepts of the founding fathers (starting with progressives like Dewey and Wilson and on down to today)Are they unamerican as well? Please

Matt Festa

[ogmb]

"Scalia is correctly making the point that God is just as legitimate a source for our natural rights as nature is."

NO.

Scalia vests God's authority in the government and simply bypasses the role of the people. The Declaration of Independence vests God's authority in the people:

Declaration of Independence: "all men (...) are endowed by their Creator with certain unalienable Rights (...) Governments deriv[e] their just powers from the consent of the governed"

Scalia: "government (...) derives its authority from God"

[liberal]

Bruce Moomaw wrote, "http://www.sunnetworks.net/~ggarman/tripoli.html . (See Article 11.)"

Yes, that's a good one: "1797 TREATY WITH TRIPOLI: ... 'Article 11. As the government of the United States of America is not in any sense founded on the Christian Religion,--as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,--and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries' (p. 365)."

[liberal]

Matt Festa wrote, "Specifically, there is a Christian politics based on the distinction between the 'city of man' and the 'city of God' that leads directly to 'consent of the government,' liberal republics, and the saying "as I would not be a slave, I would not be a master.' "

But that's meaningless, because one can construe Christian politics to be practically anything. E.g., the politics of the Inquisition.

[Agreed: that politics is not Scalia's, and is not St. Paul's, at least not in Romans:13 "the powers that be are ordained of God"]

[liberal]

Matt Festa wrote, "I respect and admire your opinions as a distinuished and accomplished economist, but please be more cautious in your condemnation of a distinguished legal theorist."

LOL! Scalia, a distinguished legal theorist?

Ronald Dworkin's writings in the _New York Review of Books_ demolished "originalism" as a coherent legal philosophy. (This isn't just the view of liberals; Charles Fried has also, according to Dworkin, ridiculed the doctrine of originalism.)

A good example is _Brown v. Board of Education_. It's inconceivable that a consistent originalist doctrine would agree that _Brown_ was correctly decided. And yet does Scalia demand that _Brown_ be overturned?

[Alex Tabarrok]

Brad is absolutely right. Nuff said.

Alex

[nkirsch]

Of course it was a sin for blacks to eat at all white lunch counters. It made the all black lunch counters go out of business.

[matt festa]

Liberal,

The view of the divine rights of kings is based on the premise of human inequality. Ie, there are human certain human beings more "capable" or more "fit" to govern over others. The source of this power comes directly from God.

Specifically, the idea of "divine right" is a perversion of the Christian teaching stemming from an erroneous misreading of Aristotle's politics. In the classical tradition, the purpose of politics is virtue and it is the goal of the politician to instill virtue into the citizenry. With the rise of Christianity, certain people claimed that the king (and church),sanctioned by God, had the "right" to be the one "ruling" over the citizenry...since they possessed the necessary knowledge that needed to be instilled.

We know what that gave us, I need not spend anytime arguing its flaws.

To see how Scalia is not advocating this requires an understanding of the founders, specifically the founders interpretation of John Locke (whom they believed resolved this issue). In the old tradition, the laws derived their power from the God's, period. But Christianity, rightly understood, opens the way for "natural law" or "natural right." Since God created "nature" and nature was rational, the disjunction is solved. Human law is grounded in natural right(which is from God). But we need not rely on God to demonstrate natural right. natural right is self-evident (ie understandable to anyone who understands the terms of the propostion.) "All men are created equal" If you understand men, created, and equal then the statement stands in no need of proof. But for the religious, it is God who created the world, and since God is truth and truth cannot contradict itself, then God created human equality. Therefore, it follows from the terms of the proposition that no King has the right to rule over me. If we think long and hard about this, how is this not at least compatable with Christianity?

I have yet to find an adequate answer as to why it took so "dang" long for Christianity to figure this out...ESPECIALLY when the writing was on the wall with Augustine's distinction between the "City of God" and the "City of Man." (confusing the two is never a good thing) But...I digress....

The problem Brad has is that he is worried that invoking God is invoking Divine Right. But this is not necessarily the case. I am willing to concede that the phrasing of Scalia's statement is a bit poor. But I hardly think this justifies the baseless assertion that Scalia is a theocrat.

Of course, you don't have to be religious to believe in natural right. It may help, but it's not necessary...

Now we can get into a whole discussion of what type of "God" is meant in "nature and nature's God" from the Declaration. But many religious people at the time (including the Catholic John Carroll? Did I get the first name right?) believed in the precepts of the Declaration and were signatory to it. And we also have to keep in mind that while the first mention of God is deistic, of the four times God is mentioned (1 and possibly 2) are specifically theistic. But lets not go there.

The important point here is that by the 1700's religious people came to realize a central Augustinian insight, that religions shouldn't have the power over the purse and sword. That way leads to corruption of both religion and politics. But it is important to realize that at the same time many people in the 1700's believed that a just God was the source of human equality, ie the idea that the difference between any two men is never as great as the difference between man and beast. No one has the right to rule me as I have no right to rule others.

Sorry for the long post, but I needed to clarify

Matt Festa

[Ed Fitzgerald (unfutz)]

Why it isn't obvious that banning such sentiments from public buildings and grounds is itself a violation of the First Amendment's guarantee of 'free expression' of religion is a mystery.

In what way can it possibly be a mystery?

Buildings (of course) intrinsically have no opinions to express, they can only express the opinions of their owners. Public buildings, by definition, belong to the people, all of the people, not any one subset of them (even a subset which is in the majority), and since there are a multitude of opinions about religion among the owners of the building, it makes perfect sense that the building should express a studious and considered neutrality on the subject, lest it be seen to be favoring one group over another.

This doesn't mean, of course, that public buildings shouldn't be a site where opinions of all types can be expressed, but that's in no way the same thing as having the building itself express one particular opinion over another.

[liberal]

Patrick R. Sullivan wrote, "Speaking of laughinstocks."

Yes, speaking of one laughingstock in particular---you haven't responded to any of my points. Guess that's because you can't.

[Bruce Moomaw]

Er, Patrick. In his letter to that Jewish synagogue -- in the event you didn't notice it -- George Washington explicitly denounced the idea that the US government should consider itself "Christian", even unofficially, and even if this still meant that it "tolerated" free religious worship by non-Christians. He said flatly that the US government should consider itself non-sectarian. He was wary enough of the long and wretched history of religious persecution in Europe to emphasize the importance of this. And he said it in his official capacity as incumbent President of the United States.

[Bruce Moomaw]

As for Washington "endorsing religion as necessary to the moral character of this country" in his Farewell Address (something I was fully aware of, thank you): if you read my comment above, you'd notice that I also regard "religion as necessary to the moral character of this country" -- and pointed out that the question is how one defines "religion", and whether it requires the worship of a personal God as opposed to a spiritual principle (as the Buddhists do, and as every strong believer in moral duty does regardless of whether he considers himself an atheist). In fact, what Washington refers to, convincingly, in that passage is the danger of assuming that a stable and moral society can be based entirely upon cold-bloodedly rational self-interest -- an idea which had tempted a great many democratic theorists at the time, and in fact still does. Logic alone is not sufficient to justify morality; plenty of sociopaths are logical.

[Ted K]

I said:
"What is consistently visible in the discussions about religion and the state (I think I need to work this chapter into an article) is that the founders were terrified of another religious war."

Sullivan then asked:
What is your source for this claim?

Other than an extensive reading in the politics of the era?
Other than the awareness that EVERY discussion of the perils of the English Civil Wars and every warning not o repeat those is a warning not to get into religious wars?

Consider Federalist 10 - the primary factions that Madison is warning about are religious sects, based on his experience in Virginia politics during their debate about the Virginia Statute for Religious Freedom.

The founders intended a studious neutrality towards religion, endorsing none and condemning none. That way no sect could aspire to use the state to enforce its will. And, no sect had to worry that a batch of elected legislators would start to define its articles of faith. (See South Carolina, 1778-1790).

Most founders also believed, as Locke did but Jefferson did not, that a man who had no religion could not be trusted to keep his oath. Thus when Washington praises religion he is doing so in the same vein as Eisenhower's famous "everyone should believe in something, and I don't care what it is." The idea of religious belief has long been important for American civil religion. The notion that the state can dictate the details of that belief has long been anathema for American civil religion.

So, I do think a plaque numbered from 1 to 10 is probably an acceptable blank slate into which people can project their idea of religion as a prop to civic life.

Putting the actual words on the plaque, and thus making a doctrinal decision between the Protestant, Catholic, Jewish (do Muslims have a version? We have more Muslims than Jews in America these days.) versions, is right out.

So...these logical sociopaths of which you speak sit down with a pen and paper and calculate their chances of getting caught everytime they break the law, right? They're motivated enough by their own self-interest to try and only break the law when they can get away with it?

Somehow I doubt it. If you're "perfectly logical", it means your lucid enough to realise that your freedoms are severely restricted in prison and that your chance for pulling off a successful murder in the middle of the street without being convicted are rather low.

No, I'd say plenty of socipaths are less logical than they are as mad as hatters...

[Bruno]

That was me back there as |...of all the things to forget.

Free exercise of religion on private property. A slab of commandments specific to a certain religion;Indeed, a sub-class within that religion, erected on public property in plain sight of a court of law designed to protect the freedoms of the people both from and for religion bends that definition quite a bit...

Not being an american, I dont know the exact names, but I know the government is split into three arms : The executive branch (president etc.), the courts, and then the senate or some such. If the court is still an arm of the government, and the government can favor no establishment of religion, then having a big plaque reminding everyone who walks into the court that "god will judge them" is pretty obviously not acceptable...

In any case, if things really are as Patrick says, I'm sure no one would object if someone went up and defaced the slab, now would they? Its free expression on public property...

That thing about public buildings belonging to all the people sounds strangely communal. Hey, I'll be by to borrow our courtroom tomorrow, leave our door unlocked will you? Our toilet is malfunctioning and I need somewhere to take a dump...

[liberal]

Patrick R. Sullivan wrote, "But, there is a Constitutional prohibition against hindering the 'free exercise' of religion. So, any explicit ban on religious messages would seem to be a violation."

Wrong again.

As I posted above: "The issue is not the right to express religious beliefs on public property; no one is talking about preventing students from praying in schools, or people from praying in parks.

"The issue is the expression of religious belief that appears to have the imprimatur of government."

[Matt Festa]

A few points here

1)Federalist 10 refers not primarily to religious sects as to majority factions, which may or may not be religious in nature..the argument does not hinge on whether the group is religous in character...it hinges on whether it is a majority.

2) Almost all the founders believed that a citizenry needed some form of religious culture. You quote Jefferson, but why do you leave out (or brush aside) Hamilton, John Adams, George Washington, etc. who all believed the nation needed religion discussed in the public square.

3) Of course Washington was not refering specifically to Christianity, he is referring to all those religions that believe in human equality and human dignity. All are welcome. America is not in the business of choosing which religion is right because that is a matter of reason (guided by faith), which is left up to the individual. But this doesn't mean that we can't have public discussions or public prayers, etc. So long as we give the minority their due rights, there is no violation.

4) The 1st amendment says "congress shall make no law." States in the founding era (like Massachussets) actually had state sanctioned ministers and public days of worship. This is too extreme, but it goes to show you that if a state wants to put up a Christmas tree or say a general pray, they are free to do so.

Matt

[liberal]

Matt Festa wrote, "You quote Jefferson, but why do you leave out (or brush aside) Hamilton, John Adams, George Washington, etc. who all believed the nation needed religion discussed in the public square."

Why do you leave out Madison?

"The 1st amendment says 'congress shall make no law.' States in the founding era (like Massachussets) actually had state sanctioned ministers and public days of worship. This is too extreme, but it goes to show you that if a state wants to put up a Christmas tree or say a general pray, they are free to do so."

No, because the so-called doctrine of incorporation embodied in the 14th Amendment extended the rights described in the Bill of Rights to the states.

Otherwise, by your reasoning, a state could declare itself a Christian theocracy.

[Bruce Moomaw]

Patrick, for God's sake. President Washington said explicitly that the US government must never be regarded as embracing one religion, EVEN if it still "tolerated" the worship of other religions by some citizens. Now tell us what could have motivated that belief of his other than extreme fear of persecution of the adherents of some religions by others within the US -- and of the conflicts that might result from such atempts at persecution? To repeat what I said before (and what is obvious): if the Founders were sane at all, they had every reason to fear the growth within the US of exactly the same sorts of religious conflicts that had rendered Europe's history so incredibly bloody for so long. Thus their desire to have the government officially embrace only those religious (or philosophical) principles which are accepted by virtually every human being who isn't a sociopath.

As for your harebrained argument that slogans limited to some religions can be posted in public buildings because such buildings do belong to the public and SOME members of the public believe in those religions: fine. As Bruno suggests, let's be equally sure to let the Satanists and any self-proclaimed Aztecs (and the Wahhabis) also post their particular sets of religious rules there. Of course, all public buildings are going to get a bit crowded if that right is unrestricted, so we'll have to keep some of them out. By lottery, presumably.

In that case we should also always do the other logical thing and let, say, displays of all 10 Commandments be posted in government guildings ONLY if they're accompanied by an official and highly conspicuous notice: "This display in no way indicates official approval by the US government of the views and precepts of this particular religion." (This would also solve the problem of government-funded Christmas creches.) Stick such a billboard up right next to Roy's Rock in the Alabama Supreme Court building and the Rock would become much less offensive. (Except to Roy himself, who would raise screaming hell about it.)

As for your continuing (and dreary) obsession with my statement about Jim Glass: we've been over this many times before, and it's getting very tiresome. I said -- once -- that I regarded Glass as being almost certainly far more intelligent than you for the simple reason that I have never seen him make many of the seriously idiotic and fanatical comments that you are consistently fond of making on blogsites. Your comments on this thread, for instance. If I'm wrong and Glass actually DOES share all your stupider beliefs (including those you're expressing here) but simply isn't motivated to state them in print, by all means let him start saying so now and I'll lower my estimate of his intellect as well. Fair's fair. (Maybe you could contact him to that effect.)

[liberal]

Bruce Moomaw wrote, "I said -- once -- that I regarded Glass as being almost certainly far more intelligent than you..."

Talk about the bigotry of low expectations.

[Ted K]

Sully

Check your dates. History without dates is nonsense.

The passage you cite so approvingly from Washington's Farewell address (Hamilton wrote, GW approved) was written _after_ the French Revolution had turned Deist and violent and _after_ the counter-Enlightenment had begun. It is not only GW's strongest statement about civic faith, it is just about his _only_ statement of civic faith. If you are going to try to talk about original intent, then you are pretty much stuck talking about the period 1778 (Articles) to 1791 (Madison goes 10 for 12 on Amendments) 1795 is a very different world, as is 1800 or 1828.

You have trouble reading what I am actually saying. I am agreeing with you that most Americans in the Revolutionary era and the Early American Republic (say 1760-1850) believed that religion was a necessary part of civil order.

I disagree by arguing that Jefferson's position, that the details of another person's belief do not really matter (20 gods, or none - it neither picks my pocket nor breaks my leg), went from being a radical and controversial opinion when he wrote it in 1783 to being a minority opinion in the election of 1800 to being held in parts of the nation in the 1820s to being the majority opinion by 1850.

Everyone in the 1770s, and earlier, agreed with Locke that the government had no business messing with individual conscience. The change came in their attitude towards government endorsement of one religious belief over another, and the corrollary favoritism that goes with that endorsement. Locke accepted that the Prince would have his own church, and by attending it would favor it with prestige if with nothing else. The Continental Congress, after almost seeing their revolution scuttled because Pennsylvanians were terrified that Massachusetts was plotting to make them all Puritans, went out of their way not to endorse ANY particular religion (they hit every church in rotation) and to defer all religious questions to the states. As far as they were concerned, the best way to handle religion on the national scale was to take it out of the picture. Nothing confrontational, other than a generic call for days of fasting but without any prescription on _exactly_ how that day should be followed. Instead they referred all religious questions to the states.

The guys in Philly went one further. They did not have a chaplain, and refused Franklin's call for one. They refused test acts. And they wrote a document with only incidental mention of religion, mostly in dating and in the Sunday provisions.

The folks ratifying were not satisfied. And remember, Madison always claimed (somewhat speciously) that the original intent of the founders was to be found in the state ratifying conventions. All of those ratifying conventions insisted that the federal government not mess with religion in the several states. Religion was a state matter. No state church, no state disestablishments, and no state preference or endorsements.

Madison's Federalist 10 used religious groups as the paradigm for faction. They were not the only faction, I never claimed that. Nor did the founders think that religious war was the most _immediate_ threat to the Republic. But they had had religious war in South Carolina during the Revolution (part of the dirty war that does not make it into the textbooks.) More importantly, the English Civil Wars were the defining context for their political theory -- both in its republican and liberal veins -- and the general interpretation of the English Civil Wars was they they had been primarily religious conflicts.

FEh, must run. More later.

[Bruce Moomaw]

Sullivan seems determined to miss my (repeatedly stated)point. My point, for the millionth time, is that any goernment-endorsed "religious" statements on public buildings, or in any other milieu, must be moral sentiments of the sort that absolutely no one other than sociopaths could disagree with -- and that this is exactly what Washington and company also believed. What's really "risible" is reading that passage from his Farewell Address and concluding that it represents any endorsement of Christianity, or of any specific religion within the very broad overall group of religions and philosophies that do regard the universally accepted rules of morality as important. If you bothered to read the second of my URL references to Washington, you will note that he himself was quite clearly non-Christian, like Jefferson. It is a bit of a strain on credulity to assume that he would have been in favor of the US government officially indicating that it was Christian -- or, for that matter, of any state government doing so.

And if you bothered to read Washington's 1790 statement to that synagogue in my first URL reference to him, you will find him stating -- explicitly -- that the government must not label itself as officially (or even unofficially) embracing Christianity even if such a government still "tolerates" free religious practices by non-Christians. And we're supposed to believe that this guy might have favored the US government officially establishing or advocating any particular religion more specialized than a general belief in the importance of the universally accepted rules of morality? That statement by Washington to the synagogue obviously proves by itself that he was EXTREMELY wary of the dangers of the persecution of some religious sects by others, and of the wars that might arise from attempts at such persecution -- and his statement in his Farewell Address obviously says absolutely nothing to contradict this.

[Bruce Moomaw]

Let us also, by the way, keep in mind just what virtually all the advocates of placing all of the 10 Commandments, or other Christian religious symbols, inside a government building are really after. They are usually quite willing to say that they regard religions other than Christianity or (in some cases) Judaism as immoral. That is, they oppose the idea of religious freedom itself. Roy Moore himself has stated repeatedly that the "foundation of American society on Christian principles" predates and overrides the First Amendment, and that he wants to see the part of that Amendment which allows full religious freedom repealed. He is, to put it mildly, not alone.

The situation here is exactly like the real motivation of most opponents of legalized gay marriage, which (contrary to Bush's frantic, and ridiculously obviously political, fence-straddling on the issue) has nothing to do with regarding gay marriage as "weakening" heterosexual marriage in some mysterious way, but is rather that they regard homosexuality itself as immoral and want to see it -- or as much of it as possible -- outlawed for that reason.

[Matt Festa]

Liberal,

Not so fast with the14th amendment. It is not so simple (see Newdow, Justice Thomas Concurring)The free excercise clause protects individual rights and applies against the states via the 14th amendment. The "establishment" clause is not so simple. Reasonable people can have differing opinions on this. I do not think it should be read back, you obviousely do.

Ted,

You need to broaden your horizon on the enlish civil wars. The english civil wars did indeed lead to the Hobbesian "state of nature" argument as the source of political life (since nature is nasty, brutish, and short, we need civil government).

But this Hobbesian state of nature underwent three modifications: one by Locke, an attack by the Scottish enlightment, and the founders interpretation.

1) Reading the exoteric Locke we get the sense that the state of nature is compatable with theism...this is the view of the founders
2) THe Scottish Enlightment attacked the state of nature as being too simplistic, arguing that morality is really rooted in human nature (empathy as a part of humanity..Smith).
3) The founders believed that religion is important to promoting morality. Modern liberalism, beginning with Dewey does not. If you want to argue that religion should not be a part of civic life, then please at least recognize that this is a progressive rejection of the founding era and not the beliefs of a majority of the founders.

Also, I am not ignoring Madison, I am simply stating that there are wide range of views (even Madison was not as atheistic as modern liberalism is) on religion in public life. Also, please stop with the "faction" meaning religions. Its getting silly now.

Madison collaborated with Hamilton and one of the main reasons federalist 10 was written was to counteract the anti-federalist argument against excessive states right. The argument is as follows (I am doing this is outline form

I Factions
a) minority-need not worry, majority will override
b) majority-major challenge to republican government

II) Solution
a) Cure the cause-no, because
1) people have different views which requires
2) Tyranny, the worse form of government

b) mitigate the effects
1) representation, to refine the views of the people
2) extend the sphere, to prevent majority factions from even forming.

The argument in Federalist 10 is that the articles of confederation did not solve the problem of majority faction...how this is specifically an anti-religious argument is beyond me when the main reason the federalist papers were written was to counteract the propaganda of the anti-federalists.

By uniting the colonies, building a commerical economy (Madison flipped on this in the 1790's, but he was right before the flip), and having representation you force factions to form coalitions to get anything done.

Get it?

Matt Festa

[Ted K]

Matt

One of the factions that Madison was worried about was religious factions. This is not surprising: he had just finished a punishing political battle between religious factions in Virginia. It is not the only faction, far from it, and you do a nice job of outlining the argument in Fed 10. But you miss my argument.

I am not trying to argue that the United States is an atheist republic. It is not. What it is, is a secular republic. There is no national established church and no test act. The government deals with civil matters, and leaves religion to the voluntary system and to the several states. (If we are talking founders, then there is not yet a 14th amendment, much less the incorporation doctrine.)

Why does it do that? I agree with Derek Davis that the guys in Philadelphia in 1787 were repeating the precedent set by the guys in the First and Second Continental Congresses. The First Continental Congress almost fell apart because of religious fears -- John Adams spent his first couple of weeks in Philadelphia assuring everyone that Massachusetts had no intention of imposing the Puritan system on the rest of the colonies, and even then a lot of people did not believe him. The Continental Congress defused these worries by being ostentatiously neutral about all sectarian questions, and by referring all religious questions to the soveriegn states. So Congress paraded to church as a body every Sunday, and they went to a different church each week so as not to show favoritism. I do not think they hit Philadelphia's sole synagogue; I am not sure if they invited a Rabbi to address them, but I suspect that they did not. They did, however, on at least one occasion, invite Philadelphia's Jewish community to join in a parade as equal members in the public society.

Their solution to religion and government was the same solution that Presbyterians and Anglicans had come to in their quarrels over King's College in New-York: better that no one gets control than that the other guy gets it. (Massachusetts would follow the same logic when Trinitarians moved to dissolve the establishment rather than letting Unitarians levy taxes to support their ministers.)

That is what I mean by depoliticizing religion - better that no one control it, and abjure any national power over religious matters, than let the wrong religion get it or than see factional struggles for control of the national establishment.

However, the founders also believed in civil religion, particularly in its Providential (God has a purpose for the nation) and civil faith (believers make better citizens) aspects.

But how best to encourage religious belief among the citizenry? Trial and error, mostly on the state level, led every state but two to embrace the voluntary system of religion by the 1790s. Connecticut and Massachusetts followed after their Protestantism went from being monochrome to plural.

The logical conclusion to depoliticized religion, religious freedom, and voluntary religion is Justice O'Conner's endorsement test. She hit on something that does a pretty good job of capturing the larger intent of the founders.

So, to get back to that 10 commandments test. The best argument in favor of posting the 10 Commandments in a public space is that it encourages civic faith: prominent display of religious teachings that touch on morals will improve public morality. (I will not get into the Christianity and the Common law argument here. Both the English and American legal traditions end up grounding themselves in civic faith.)

What sort of thing could we post? We could post a good solid Deist bit, perhaps Tom Paine's
"The Creation we behold is the real and ever-existing word of God, in which we cannot be deceived. It proclaims his power, it demonstrates his wisdom, it manifests his goodness and beneficence.
"The moral duty of man consists in imitating the moral goodness and beneficence of God, manifested in the creation toward all his creatures. Seeing, as we daily do, the goodness of God to all men, it is an example calling upon all men to practise the same toward each other; and, consequently, everything of persecution and revenge between man and man, and everything of cruelty to animals, is a violation of moral duty." (Rights of Man, Book I, grammar changed slightly.)

That would also support civic faith, by tying belief in God to practical morality.

No? You want the 10 commandments?

Have you picked which version yet? And can you tell my why that version is not an endorsement of that particular religious tradition?

[P.M.Lawrence]

There are lots of misunderstandings here, starting with the idea that the USA is a free country. It isn't now and never was, except in the "any cour they like as long as it's black" sense. It's democratic, and people expressing ideas beyond the pale have always been persecuted, with or without legal sanction. I'll just mention loyalists, slaves, mormons, labour activists, and Jews to bring matters within living memory. I'll stop there to avoid upsetting anyone still around. That may be a confusion between "free" and "democratic".

Another confusion is supposing that exterior justification for the US system is nothing like that sort of justification for governments in general, even ones that do not derive from consent of "the people". Actually, such a limited justification applies to all governments regardless. It is no more a justification than recognising a government solely on the basis of its control of its territory.

It's a limited justification, a merely pragmatic one. Look again at what St. Paul said. It is no more than an ephemeral and secular justification, basically telling people that rebellion is wrong. It is not an absolute and permanent justification of an enduring status quo, and allows the possibility of an exceptional case, that unlawful rulers might exist. These would then be pretenders and usurpers, and that is where the parliamentarians were coming from in the civil war; they did not deny the reasoning behind Divine right, but rather supposed ("by their fruits shall ye know them") that Charles I had shown himself no true king in a deeper sense.

Let's look at democracy again, to show a gap in that reasoning about deriving just powers from consent. Democracy has three gaps, incompletenesses that have to be supplied from outside:-

- It is susceptible to agenda control, omitting questions or retrying them until "the people get it right", sorry, "the people are ready".

- It cannot ever be a source of values but at best a means of transmitting them; compare and contrast Athens' behaviour over Mitylene and over Malos (Melos, as it became known when it was resettled after the genocide). If democracy could justify, they would both have been right, and there need have been no reprieve for the former.

- It does not, indeed cannot, define "we the people" as that is too circular.

Those last two points come up here. The consent of the people is a necessary but not sufficient condition for the basis of democracy. It is necessary because without that there is a contradiction. It would be sufficient if there were a separate justification for "the people" being sovereign, because then there would clearly be no other claimant. But now we get onto the other flaw that applies here...

What people? The USA was founded on the expulsion of those who visibly disagreed and the repression of those who disagreed but preferred not to reveal themselves. It took two generations to make the rebel arrangements safe enough for Jacksonian democracy, and after that the whole melting pot thing came in as a natural response to the temptation to elect a new people by instalments. It was the political analogue of the agency costs incurred by a firm in which the management dilutes existing equity. Now, that may or may not have been either right or useful, but those do not rest on the democratic principle.

You really cannot claim any moral justification FROM the consent of the people, you van only insist that it be present and have additional moral backing from some independent source. All else is groupthink.

[liberal]

Matt Festa wrote, "Not so fast with the14th amendment. It is not so simple (see Newdow, Justice Thomas Concurring)The free excercise clause protects individual rights and applies against the states via the 14th amendment. The "establishment" clause is not so simple. Reasonable people can have differing opinions on this. I do not think it should be read back, you obviousely do."

Give me a list of reasonable people and their arguments as to why the establishment clause doesn't apply to the states.

Clarence Thomas, by the way, who almost certainly lied during his confirmation hearings, doesn't qualify as "reasonable."

[Matt Festa]

Clarification Post

Ted, you answered your own question

"However, the founders also believed in civil religion, particularly in its Providential (God has a purpose for the nation) and civil faith (believers make better citizens) aspects."

I am not quite sure how the 10 commandments (on display in, what, a dozen buildings?) Endorses a particular religion. As far as I know, the 10 commandments is believed by Christians (Catholics and Protestants...and even a few Unitarians), Jews, and Muslims. I am not sure how displaying them is favoring one "religion" over the other, unless we want to just call "monotheism" a particular religion, which is silly.

Perhaps you can argue that the protestants have their 10 commandments and Catholics theres, but I don't really see why that has to be an issue. As a Catholic, I have no right to complain if my courthouse has the King James version of the 10 commandments on display. Other building can have mine. But both potrary the general sense of the "common moral law."

In terms of what should or should not be on display, I have no problem with publically discussing or celebrating any religion that believes in the precept "all men are created equal." In fact, I would argue that anyone against celebrating those religions--even if we are not believers in them--is nothing more than a closet bigot.

But this is really besides the point. All these posts saying "yeah, well the constitution now says this...which prohibits the 10 commandments" comes directly from the ideologically of progressivism, which was a deliberate and conscious effort to "undo" the founding, or at least move beyond it. You can see the origins of this movement in the writings of Thomas Dewey and Woodrow Wilson (especially Wilson's charge that the founders concept of government was "Newtonian" and needed to be replaced by "organic" Darwinism)...but the jist of the matter is "what the founders said then was true for then but not true for now."

Thats what this debate is really about.

Matt

[Bruce Moomaw]

"It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent national gifts."

Exactly how is this to be interpreted other than by saying that the US government must not be seen as favoring Christianity over other religions, even if it still allows non-Christians to worship? And exactly how is governmental promulgation of all of the 10 Commandments -- including the four unique to the Judeo-Christian religions -- not promulgation of one set of religions over others?

Now let's move on to Patrick's "proof" that the Founders had no fear of religious schisms in the US: "Does this sound like a guy who would be comfortable with denying the citizens the right to display the 10 Commandments on public property: 'The longer I live, the more convincing proofs I see of this Truth--that God governs in the Affairs of Men....I also believe, that without his concurring Aid, we shall succeed in this political Building no better than the Builders of Babel.' Much less that he feared religious war would break out."

Talk about failure of reading comprehension. I have repeated, at least four times during this thread, the point that belief in "God" -- who can even be defined as the spiritual principle underlying morality, rather than a personal God -- hardly equals belief specifically in Christianity, let alone in any of its individual interpretations. And, of course, it does absolutely nothing to disprove the very long-proven fact that schisms between those interpretations of "God" can lead to both religious persecution and religious conflict. On this subject see Pascal, than whom there was no firmer believer in Christianity in Europe: "Men never do evil so completely and cheerfully as when they do it from religious conviction."

Finally -- and, for the third time, on the subject of Patrick's failures of elementary reading comprehension -- consider the following passage from his own quotation of Madison's original draft of the First Amendment: "...
nor shall any national religion be established..." Exactly how is printing the four specifically Judeo-Christian Commandments in government buildings, without allowing equal time for the opposing side, not a form of "establishment of a national religion"? By doing so, the government is stating flatly that anyone who does not worship a specifically Judeo-Christian God -- including Buddhists, Hindus and moral atheists -- is sub-American, even if the government continues to "tolerate" their activities. (Of course, it's very hard to avoid concluding at this point that Patrick shares that belief, which is why he's making so much noise on this point.)

[Bruce Moomaw]

As for "the only lying during Clarence Thomas' confirmation hearings [being] done by his opponents": please. Regardless of who you think was lying in the Thomas/Hill imbroglio (and note that David Brock himself has recanted on this subject), consider the obvious point that Michael Kinsley continues to make: when Thomas solemnly swore to the Senators that he had never even thought in passing about whether Roe vs. Wade was correct legal reasoning or not, he was obviously lying through his teeth for the purpose of getting confirmed. A considerably more important lie than any attempt on his part to cover up a connection with Long Dong Silver.

[Ted K]

Matt,
I have a longer response about civil religion sitting in the word processor.

Pat,
WHACK

I never claimed that the founders feared an IMMEDIATE religious war. That is your word.

I claimed, and continue to maintain, that one of their worries was that there would be conflict between state religious groups for control of the national state, and on the state level for control of the state governments.

I claimed and continue to maintain that the founders believed their revolutionary rhetoric about the tie between freedom of conscience and a free people, and that they rejected "popery" - any attempt to enforce codes of conduct, religious belief, or religious attendance.

Their immediate worry in 1787 was that the Articles of Confederation had created a failed state, one that could no longer collect taxes and pay its debts. Everything else was a later worry, which is part of why the Federal Constitution is written so much more abstractly than the contemporary state constitutions.

Religion was not an immediate worry because the Continental Congress had been managing religion by disclaiming all authority over religious matters. Religion was part of sovereignty - that was a commonplace of the law of nations ever since the Treat of Westphalia - and since the states were sovereign then all religious decisions belonged at the state level. This solution meant that John Adams and the New Englanders no longer had to spend time explaining to folks from the middle colonies that New England had no interest in enforcing its establishment on them.

Your claim about what Madison meant is incorrect. The meaning you describe was presented in the Senate during its May 9, 1790 discussion about a religion amendment. It was rejected in the Senate and rejected again in the House-Senate conference. "No law respecting an establishment," the term that came out of the House-Senate reconciliation committee, is intentionally vague language, but it replaced the more narrow definition you propose.

Did it mean that the United States was an atheist republic, forbidden to ever invoke religion? Newdow might believe that, but nobody who looks at civil religion in the founding era believes it.

Did it mean that the United States was a Christian Nation? No. Some folks in the founding era believed that their states were Christian States, but more folks (like the Associate Reformed Church, for example) complained that the new republic had left out Christianity.

Did it mean that the United States was a secular state, devoted to civil matters and leaving religion to the citizens and the states - yes.

That left a grey area for actions that might be read as part of civil religion and might be read as a national establishment. The founders disagreed on how to draw that line. Heck, even Madison disagreed with himself on how to draw that line - he proclaimed national fast days during the War of 1812 and then, in a detached memorandum written during the 1820s, he said he had been wrong to make those proclamation but had gone along with the folks who said it was necessary as part of the war effort.

To get back to the original debate: Scalia claimed that the national government is a government ordained of God. None of the founders believed that. They could not believe it and still have their revolution. In fact, Pennsylvania stripped that quotation from Paul out of its Colonial charter. They replaced it twice, once in the Presbyterian Constitution of 1776 and again in the Episcopal/Quaker/Eastern coalition Constitution in 1790. Notice the differences:

1776: "WHEREAS all government ought to be instituted and supported for the security and protection of the community as such, and to enable the individuals who compose it to enjoy their natural rights, and the other blessings which the Author of existence has bestowed upon man; and whenever these great ends of government are not obtained, the people have a right, by common consent to change it, and take such measures as to them may appear necessary to promote their safety and happiness. . . . "

1790: "We, the people of the commonwealth of Pennsylvania, ordain and establish this constitution for its government."

The Revolution was driven in large part by religious rhetoric - a crusade against Anglican popery, New England battalions marching to "Chester" and singing about "New England's God", Highland Scots Catholic/Scots-Irish Presbyterian ethnocultural border wars in the Carolina back country, Presbyterians disfranchising Quakers in Pennsylvania - but the national settlement moved away from that rhetoric and towards a secular state.

By 1790 the idea was that we the people ordain and establish, and that religion and citizenship were completely separate things. Some states, especially New York and North Carolina, continued to restrict civil rights on religious grounds until the 1840s, but most of the nation dropped the old link between personal beliefs and civil status.

So, if religion is a matter of private conscience and the federal government should leave religious questions to the states, how far should the Federal government go in supporting civil religion, and what is the best way to support civil religion? Those are the real questions we need to be asking about the founders' intentions.

Before you start quoting Franklin and Hamilton at me, let me repeat that most Americans living between 1775-1800 believed that religious beliefs were necessary for proper morals and that proper morals were necessary for a sound republic. The argument that matters is between Madison and friends, who argued that the voluntary system was safest for both religion and government, and Hamilton, Patrick Henry, and friends, who argued that without some form of formal endorsement by the state, religion would flounder and the people would become first immoral, then selfish, then fall into a despotism because they cared only about their own immediate gratification.

The founders themselves did not agree on how far the government should go in endorsing religion, but they all agreed that no government, at any level, should impose particular religious beliefs on the citizenry.

The problem is that it is very hard to promote civil religion without providing the details for that religion. In my work elsewhere I argue that given the choice between civil religion and detailed religion, the first few generation always chose to fudge the details. And, as each new set of details become controversial, they too got fudged.

When all we had was Protestants, Protestantism was the lowest common denominator. Protestant exclusion ended by the 1820s. Deism was, for a long time, the lowest common denominator, and so we have a long tradition of ceremonial Deism. The current debate is a debate about what is the lowest common denominator: should it remain the Deism of Franklin and Jefferson, should it be a generic Theism, should it be absolutely no mention of religion at all, or should we go back to the more exclusive and limited denominator of Christianity or Protestantism.

The reason that the particular text of a 10-commandments plaque matters is that by choosing the Protestant, Catholic, or Jewish numbering - not just the words but the actual meaning of the commandments varies dramitically - the government is endorsing one version over another. The reason why the mere presence of a plaque matters is that the nation is more religiously diverse than it was 50 years ago. So the issue behind the 10 commandments debate is really a question of civil religion - what IS the current national civil religion? what DO we have in common? How CAN we create common rituals and common beliefs in a diverse society?

I do believe that the answer lies in the founding era, in the (Protestant) principles of freedom of conscience and voluntary religion gathering to create a secular society. That is still a live concept and, if you look at the way in which we are beginning to develop an American Islam to go along with American Catholicism and American (secular or Conservative) Judaism, you will see that this Enlightenment legacy is still live and still important.

And it is not compatible with putting up religious plaques in courthouses.