We're on a Mission From God
Is the Ten Commandments case turning Scalia into a devotee of natural law?
By Michael McGough
Posted Wednesday, March 9, 2005, at 2:37 PM PT
Last week's oral arguments at the U.S. Supreme Court over the constitutionality of Ten Commandments displays on public property offered an embarrassment of riches for students of the court and of the culture wars in general. Among other revelations, we discovered that Justice David H. Souter uses the term "Roman" as a synonym for Roman Catholic—a quaint (and to some Catholics insulting) locution favored by high-church Episcopalians of past generations. But perhaps the biggest surprise, in more ways than one, was Justice Anton Scalia's insistence that most of the proffered "secular" rationales for Ten Commandments displays were absurd.
When Texas Attorney General Greg Abbott defended a display of the Decalogue on the grounds of the state capitol arguing that it was, unlike a crucifix, a "historically recognized symbol of law," Scalia protested, "It's not a secular message. I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law is—and our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself."
As for the state of Kentucky's argument that displays of the Decalogue in two county
courthouses should be upheld because they were (belatedly) grouped with the
Declaration of Independence and other secular texts as a tribute to the foundations of American law, Scalia again cut to the chase: "I don't think they're really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence. That's idiotic. What the commandments stand for is the direction of human affairs by God."
And national commentators are incensed at Scalia's even bolder statement that the commandments are "a symbol of the fact that government derives its authority from God," which strikes many of them as a dangerous betrayal of the most basic notion that in this country, at least, government derives its authority from its citizens.
Granting the caveat that the justices' questions at oral arguments can be exploratory, playful, or irrelevant to the disposition of the case, Scalia's gloss on the reason for the Ten Commandments displays is surprising from several standpoints. And it isn't just that he played right into the hands of the separationist David Souter—who called the supposed secular purposes of the Kentucky displays "litigation dressing."
More interesting to jurisprudence junkies, Scalia seemed to be slighting two basic tenets of his approach to judging: his "textualist" practice of looking only at the plain language of official enactments (if a county says it's posting the Ten Commandments because the commandments and the Declaration of Independence both "played a significant role in the foundation of our system of law and government," why not take that at face value?); and his usual preference for a "positivist" rather than a natural-law approach to constitutional interpretation.
It's Clarence Thomas, not Scalia, who has been accused—as early as Thomas' confirmation hearings in 1991—of espousing an approach to constitutional interpretation that looks far beyond the text and history of constitutional language to what one advocate of natural-law jurisprudence calls "the document that gave birth to our country: the Declaration of Independence."
In suggesting that Ten Commandments displays are defensible because they reflect the God-given nature of American law, Scalia reminded me of a brief submitted by the Christian Legal Society in the last great culture-war case, atheist Michael Newdow's attempt to have the court strike down the recitation in public school classrooms of the Pledge of Allegiance to "one nation, under God." In its brief, the CLS argued that "considered in its context, the phrase 'under God' in the Pledge of Allegiance represents not an endorsement of monotheism, but rather a proposition from the Declaration of Independence that is both theological and political, namely, that all individuals are endowed by their Creator with certain inalienable rights."
Unlike the solicitor general's brief in the pledge case, the CLS brief did not treat the theological provenance of the Declaration as a merely historical matter, urging that schoolchildren saying "under God" are simply channeling the framers' beliefs. (A CLS lawyer told me at the time that some Christians might find the SG's arguments too "nuanced.") Rather, at least according to the CLS, the words "under God" are essential to an understanding of the rights those kids enjoy now. References and monuments to God are not merely secular or historical; they are the fundamental building blocks of natural law.
Does Scalia believe that? One can read his comments from the bench about God-given law—which, to be fair, he attributed to the sponsors of the Ten Commandments display—as a reflection not of his jurisprudence but of his religious values. (Hey, it's only an oral argument.) H. Jefferson Powell, a professor of law and divinity at Duke University and a guru of mine on both subjects, describes Scalia in general as a "hard positivist" whose view is that "law is simply whatever the sovereign has ordained, with a little waffle room for tradition." Powell notes that this posture means Scalia, whatever his religious objections to abortion, "would be obliged to uphold an abortion-on-demand law against a pro-life challenge."
Interestingly enough, abortion is one area in which natural-law conservatives think their approach to judging would give them some purchase. If one subscribes to the view that the Declaration of Independence, with its attribution of political rights to a Creator, is a controlling legal precedent, one consequence (if one assumes that fetuses are persons, a big if) might be the judicial evaluation of pro-choice legislation. If that seems outrageous, natural-law types would argue, then so was the Supreme Court's 1967 ruling outlawing laws against interracial marriage, a ruling they say cannot be justified on positivist grounds. They have a point—but that point may just be that liberals and conservatives have a weakness for results-driven jurisprudence.
Is Scalia susceptible to that temptation where the Ten Commandments are concerned? That might be one way to interpret his aggressive unmasking of the "secular" rationale for displaying the commandments and his repeated references during oral arguments to the notion that laws come from God. Perhaps on this one issue he was offering a judicially significant nod to the natural-law lobby. Or maybe he was just venting the religious views that, however regretfully, he can't allow into the positivist cathedral of his legal method.
http://www.slate.com/id/2114576/
Ahead by a Nose, The Supreme Court plays the numbers game. By Dahlia Lithwick, Feb. 20, 2002
This morning, the Supreme Court heard two of the most important cases of the 2001-2002 term: Zelman v. Simmons-Harris, testing the constitutionality of the Ohio school vouchers program, and Atkins v. Virginia, testing the constitutionality of executing the mentally retarded. Both cases came down to counting noses, which is something courts are astonishingly ill-equipped to do.
Zelman may well be the biggest case of the term. Not only will it affect education policy in the many states contemplating vouchers, but it will also signal the court's openness to President Bush's proposed faith-based charities policy. The case involves an Ohio scholarship program enacted in the wake of the spectacular failure of the Cleveland public school system—a system taken over by the state as a result of a federal court order. The program targets primarily poor children in Grades K through 8, and it allows kids to opt out of the public school system. The kids can: 1) opt into private schools (parochial or not); 2) opt into "community" or charter schools; 3) opt into suburban public schools (except for the fact that all those schools politely declined to participate in the program); or 4) the kids could remain in public school and receive a $500 tutorial grant.
For whatever reason, fully 99 percent of the Cleveland vouchers ended up being used for private religious schools, so the 6th Circuit Court of Appeals struck down the program as a violation of the First Amendment's ban on government "establishing" of religion. Now you and I have talked about religion before, and I've tried to help make sense of the crabbed and demented mess that is the Supreme Court's Establishment Clause jurisprudence. Perhaps we'll leave it at this: Many of the nine justices have such different and irreconcilable tests for government violations of the Establishment Clause that the past 20 years have amounted to little more than an elaborate swapping of constitutional baseball cards. Justice Kennedy favors testing to see whether there's been religious coercion, but he'll throw his weight in with Thomas to hold that if state aid is neutrally allocated, it can still be constitutional. Justice O'Connor rejects the neutrally allocated test and instead has cooked up a test that would make aid constitutional as long as students' choices were freely made. But she also frets about the appearance of government endorsement and the feelings of objective observers who might be excluded from the religion being funded. Justice Breyer seems to have signed off on some version of O'Connor's test. And still the bones of Lemon v. Kurtzman—the sucky 1973 case laying out the original foundation for these various tests—rattle around to confound meaningful discussion.
Since today's result (and the constitutionality of every future voucher program in America) hinges primarily on O'Connor's vote, it's O'Connor whose issues predominate this morning. And O'Connor wants to count noses. So, an inordinate amount of time is devoted to questions such as whether the charter schools and magnet schools offered in Cleveland count as "public" or "private" schools. O'Connor thinks the lower court made a mistake in not counting the "community" schools among the options available to Cleveland's voucher kids. Even though almost all the voucher kids have elected to attend religious schools anyhow, for O'Connor there might be sufficient secular choices to immunize the program if the community schools are counted as at least a theoretical option. No less than six times, O'Connor asks Robert Chanin, who opposes vouchers, why community schools are not counted as private schools. Chanin's response (accompanied by lots of pointing and emoting) appears to be that they aren't counted as private schools because they are public. O'Connor is unpersuaded. And O'Connor is about to invent a new Establishment Clause test called the "lots of other choices" test.
Of course, even if you count all the kids who go to charter, magnet, and mime schools in Cleveland, you still have the problem that almost 100 percent of these kids go to religious schools. But this case, as is evidenced by bus-loads of orange-hatted Cleveland school kids who arrived to protest outside, has become about virtuous things like "parental choice" and about "not persecuting the church schools by denying them equal funding for the good work they do." My constitutional law professor Kathleen Sullivan once wrote in this very publication: "[T]he establishment clause is not a civil rights act for religion." But it's sure starting to look like one.
The second case, Atkins, involves a death row convict who killed a man for beer money. The convict's IQ (his attorneys say it's 59) is well below 70, the score that usually denotes mental retardation. At the trial court, the mental health expert who testified on Daryl Renard Atkins' behalf characterized him as retarded, but the prosecution expert felt he was simply lacking in ambition and "not motivated to succeed." One might have hoped that hundreds of years of medical science could do something to bridge that empirical chasm but, alas, apparently not.
The legal test for whether executing the mentally retarded violates the Eighth Amendment ban on cruel and unusual punishment is nothing more than an elaborate squish test. Unlike most constitutional jurisprudence, the test makes allowances for "evolving standards of decency." In fact, the high court probably took this case only because when it last tackled this issue, in the 1989 case of Penry v. Lynaugh, the high court refused (by a 5-4 vote) to outlaw the death penalty in these cases precisely because "a national consensus against executing mentally retarded people" did not yet exist. The only issue before the court today is, does that consensus exist now?
Since Penry was decided in 1989, 16 states have passed legislation outlawing capital punishment for the mentally retarded. Add to that the two states who outlawed it before Penry and you now have 18 states (Arizona, Arkansas, Colorado, Connecticut, Florida, Georgia, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, New Mexico, New York, North Carolina, South Dakota, Tennessee, Washington) that outlaw executing the mentally retarded. (New York still allows execution of mentally retarded prisoners who kill while incarcerated, however.)
The mathletes on the high court bicker about whether one can add in the 12 states that outlaw capital punishment altogether. O'Connor, again the swing vote, feels that it's intuitively obvious that states who oppose executing people also oppose executing the retarded. Still, Virginia Assistant Attorney General Pamela Rumpz makes an impassioned argument for those states' right to change their minds. Indeed, she makes an impassioned argument for executing even 5-year-old murderers, so long as they are capable of deliberation and premeditation and of assisting their counsel. Indeed, Rumpz offers the most passionate defense of a jury's right to erroneously convict and execute a retarded person that I have ever heard.