Published on Monday, July 8, 2002 in the New York Times
From Justice Scalia, a Chilling Vision of Religion’s Authority in America
by Sean Wilentz
PRINCETON, N.J. -- Earlier this year Antonin Scalia decided to share some aspects of his worldview with the public. His inspiration seems to have been the death penalty: recent debates with his colleagues on the Supreme Court and his general reflections on the legitimacy of the state taking to itself the power to kill a citizen. Justice Scalia spoke on these matters at the University of Chicago Divinity School in January, beginning with the ritual disclaimer that "my views on the subject have nothing to do with how I vote in capital cases"; his remarks appeared in the May issue of First Things: The Journal of Religion and Public Life. They are supplemented by his dissent to the court's decision on June 20 that mentally retarded people should not be executed. Justice Scalia's remarks show bitterness against democracy, strong dislike for the Constitution's approach to religion and eager advocacy for the submission of the individual to the state. It is a chilling mixture for an American.
Because Mr. Scalia is on the Supreme Court, and because President Bush has held him up as an example of judicial greatness, his writings deserve careful attention.
Mr. Scalia seems to believe strongly that a person's religious faith is something that he or she (as a Roman Catholic like Mr. Scalia) must take whole from church doctrine and obey. In his talk in Chicago, Mr. Scalia noted with relief that the Catholic Church's recent opinion that the death penalty was very rarely permissible was not "binding" on Catholics. If it had been, Mr. Scalia said, this teaching would have led the church to "effectively urge the retirement of Catholics from public life," given that the federal government and 38 states "believe the death penalty is sometimes just."
Mr. Scalia apparently believes that Catholics, at least, would be unable to uphold, as citizens, views that contradict church doctrine. This is exactly the stereotype of Catholicism as papist mind control that Catholics have struggled against throughout the modern era and that John F. Kennedy did so much to overcome. But Mr. Scalia sees submission as desirable — and possibly the very definition of faith. He quotes St. Paul, "For there is no power but of God: the powers that be are ordained of God."
"The Lord," Mr. Scalia explained in Chicago, "repaid — did justice — through His minister, the state."
This view, according to Mr. Scalia, once represented the consensus "not just of Christian or religious thought, but of secular thought regarding the powers of the state." He said, "That consensus has been upset, I think, by the emergence of democracy." And now, alarmingly, Mr. Scalia wishes to rally the devout against democracy's errors. "The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible," he said in Chicago.
Mr. Scalia is right about one thing. Modern democracy did upset the divine authority of the state. That has usually been considered by Americans to have been a step forward. The great 17th-century dissenter Roger Williams declared that government derived no authority whatsoever from God, but was "merely human and civil." Thomas Jefferson put matters bluntly in 1779: "[O]ur civil rights have no dependence on our religious opinions any more than on opinions in physics or geometry."
That view prevailed among the framers at Philadelphia in 1787. Throughout their debates, even when they prayed for divine guidance, they rejected the idea that political authority lay with anyone or anything other than the sovereign people. The only extended discussion of religion in the Federalist Papers has James Madison listing zeal in religious opinion as one of "the latent causes of faction" that cause men "to vex and oppress each other" and that need institutional checks.
There have always been Americans who have thought as Justice Scalia does now. In 1781 a Massachusetts minister, Jonas Clark, preached that religion is "the source of liberty, the soul of government and the life of a people." But ever since the Revolution, this has been a minority view, even an eccentric one, among Americans. It has had no appreciable place in our constitutional history because the framers rejected it.
They had many reasons for doing so, not least the factionalism mentioned by Madison. They had an idea that sovereignty rested with a free people, even if some among those people didn't believe in God, or in the same God, or in the same way.
Such a belief in the worth of people independent of religious considerations (whether their own or those of the state) has distinguished secular democracy. This seems to irritate Mr. Scalia. It seems to indicate a humanist egotism that might lead a person to think individual lives are so valuable that it is not the privilege of the state to take them. "Indeed, it seems to me," Mr. Scalia said in Chicago, "that the more Christian a country is the less likely it is to regard the death penalty as immoral. Abolition has taken its firmest hold in post-Christian Europe, and has least support in the churchgoing United States. I attribute that to the fact that for the believing Christian, death is no big deal."
This might imply that the death penalty would have little deterrent effect for the faithful. It might also imply that devout Christians have fewer moral scruples about disregarding the Old Testament's injunction against killing. ("For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence," Mr. Scalia said sarcastically. "What a horrible act!") But that is not quite Mr. Scalia's point. He wants us to know that Catholics and perhaps other religiously minded people have the moral sense to hold their own wills as slight things compared to those of God and His minister, the state — with the partial exception of judges.
In Chicago, Mr. Scalia argued strenuously that in America a judge who morally opposed the death penalty ought to resign. "Of course," Mr. Scalia said, "if he feels strongly enough he can go beyond mere resignation and lead a political campaign to abolish the death penalty — and if that fails, lead a revolution."
But leading a revolution would inevitably bring some interference with the application of laws, not to mention all the other atrocities that typically attend revolutions. Only a judge could think it better to play Robespierre than to issue too ambitious an opinion.
One senses that Mr. Scalia's true priority is to get secular humanists off the federal bench. In his dissent to Atkins v. Virginia, the recent decision against executing mentally retarded criminals, Mr. Scalia wrote, "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members." The ones he had in mind were not all the members, just the six who disagreed with him. Mr. Scalia dissents vigorously against them for letting their personal notions infect the law.
In Chicago Mr. Scalia asserted, not for the first time, that he is a strict constructionist, taking the Constitution as it is, not as he might want it to be. Yet he wants to give it a religious sense that is directly counter to the abundantly expressed wishes of the men who wrote the Constitution. That is not properly called strict constructionism; it is opportunism, and it threatens democracy. His defense of his private prejudices, even if they may occasionally overlap the opinions of others, should not be mislabeled conservatism. Justice Scalia seeks to abandon the intent of the Constitution's framers and impose views about government and divinity that no previous justice, no matter how conservative, has ever embraced.
Sean Wilentz, co-author of "The Kingdom of Matthias," directs the American studies program at Princeton.
Copyright 2002 The New York Times Company