Scalia ‘Disturbed’ About Church-State Separation ‘Lie’

U.S. Supreme Court

Scalia ‘Disturbed’ About Church-State Separation ‘Lie’

Posted Apr 11, 2008, 07:15 am CDT
By Debra Cassens Weiss

Justice Antonin Scalia is nothing if not quotable. In his latest speech yesterday, he confessed to being disturbed about claims the Constitution erects a strict wall of separation between church and state.

Scalia pointed out that legislative sessions begin with a prayer and American currency contains the phrase “In God we trust,” the Daily Progress reports. He said these historical understandings show that claims of a strict separation between church and state are bunk.

“All sorts of things just shout out ‘It’s a lie! It’s a lie!’ ” he said. “That’s what I’m disturbed about.”

“If you want to enact a statute that says the president can never say ‘God bless America,’ then I have no problem with that,” he said. “Just don’t tell me that the Constitution prohibits it.”

Scalia spoke at the University of Virginia law school, where he taught 37 years ago. He has been giving a series of well-publicized speeches as he promotes a new book that he co-wrote with Bryan Garner on the art of judicial persuasion.

Scalia said his views weren’t that far afield from those of Thomas Jefferson, the founder of the law school, The HooK reports. “I have been a centrist jurist,” he said, “at least, by my standards.”

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Posted by Mark - 5 months, 4 weeks, 2 days, 9 hours, 52 minutes ago

This is a novel approach to constitutional interpretation. If the government is doing something that you think is unconstitutional, you must be wrong, because it’s the GOVERNMENT that’s doing it!
Posted by V - 5 months, 4 weeks, 2 days, 9 hours, 26 minutes ago

The “In God We Trust” phrase was added to currency in 1955. Previously it appeared on a 2-cent piece in 1864.

He is smart enough to know that. What a liar.
Posted by Jerrold E. Fink - 5 months, 4 weeks, 2 days, 9 hours, 8 minutes ago

If you wish to see/hear, in Justice Scalia’s own words, his “originalist” strict construction view of Constitutional Interpretation regarding Church/State, access the free on line session of his appearance as a panelist on the PBS Series dealing with Ethics, Religion and the Law in America. There, he espoused his views that the Constitution would not preclude a State from adopting an official State religion and providing preferential treatment to adherents of that religion, or from discriminating against those who do not adopt/follow that religion. Of course, he added the caveat that such an interpretation may not be his personal preference, but the result would be mandated by his approach to Constitutional construction.

But, of course, Justice Scalia is a “situational originalist”, finding it easy, when necessary, to apply his personal preferences in upholding or voiding Congrssional or State acts, rather than the clear meaning of the words/language in the Constitution.

Two questions-

1. Will CBS, in its 60 Minutes session play a clip of Justice Scalia’s PBS comments and ask him tough questions regarding these and similar comments; and
2. When will the media interviewers ask the candidates who claim they will appoint Justices like or “ in the mold of “ Justice Scalia, just what they mean when they make those statements, including, specifically, would they appoint a Supreme Court Justice who believes that the Constitution permits a State to establish an official religion, to prefer adherents and to discriminate against those who practice another religion?
Posted by MikeD - 5 months, 4 weeks, 2 days, 5 hours, 11 minutes ago

Mr. Fink,
Scalia’s interpretation of the First Amendment’s establishment clause is not that unusual. Many other judges and scholars believe that the clause should not be subject to incorporation by the 14th amendment (see Thomas’ dissent in the Newdow case). In fact, many states had established religions long after the Bill of Rights were enacted. However, a particular state law could be struck down as violating the free exercise clause (which was properly subject to incorporation) if the details of the establishment were so coercive that it made it too hard to practice one’s own religion. If congress and the people really thought that the states should not be able to establish a religion, they could amend the constitution to say so and wouldn’t have needed the court to develop the implausible establishment clause incorporation theory or rely on the extraconstitutional “wall of separation”. BTW, I thought the PBS series you mentioned was one of the best products of public television because it was good to hear divergent points of view on such topics without relying on sound bites or putting up with a host that only likes to hear himself speak (O’Reilly, Hannity, Olberman, etc.).
Posted by SPP - 5 months, 4 weeks, 2 days, 58 minutes ago

Isn’t this just incredibly poor logic from Justice Scalia? He argues the Constituion does not forbid a practice because the practice is being engaged in. So I guess bank robbery is not forbidden by statutes intended to criminalize it because some one does in fact rob a bank. And the Fourth Amendment does not require a warrant because this Republican administration does in fact spy on Americans without one.

Scalia’s reputation as a brilliant jurist is farcical. But this is what passes for persuasive logic among the contemporary generation of conservatives. Stephen Colbert gets it right. Reality does have a well known liberal bias. So does logical thinking.
Posted by Angry Grad - 5 months, 4 weeks, 1 day, 6 hours, 37 minutes ago

When wilil the Congress impeach this moron?! After 20 plus years in the federal judiciary he still has no concept of the Constitution. Dump the Chump!
Posted by malarky1 - 5 months, 4 weeks, 7 hours, 16 minutes ago

I see there are a number of angry idiots posting here. Scalia never stated that “In God We Trust” originated in with the Founders or the Constitution. But, it takes no historian to understand the influences of religion in the contruction of the Constitution. I don’t think the Founders ever imagined such an anti-religious environment that exists todayl. The spin put on Scalia’s comment is itself a lie. And read the FIrst Amendment which states: Congress shall make no law… The Constitution’s primary intent was to limit the reach of the federal government.
Posted by F Rivero - 5 months, 3 weeks, 6 days, 21 hours, 34 minutes ago

Indeed, it takes no historian to understand the religious origin of our entire nation. But to suggest that it is permissive for states to proclaim a religion based upon the religious climate at the nation’s founding is to offer up an arbitrary reading of our country’s history since there is ample evidence that the founders fled the hedgemony of religion in Europe and were serious about not duplicating that state of affairs here. Thus, between one arbitrary reading of history and another, the only guideposts we have are principles - to wit, the principle of religious freedom, rooted in a concept of privacy consistent with our country’s Protestant origin, and the principle of religious hedgemony, of which there is likewise ample proof in our history. But Scalia will not admit to that, rather he will continue to peddle his intellectual shell game like some jurisprudential P.T. Barnum. That shell is “original intent” and it is a testament to the success of this shell game that constitutional debates are framed in terms of it. I would rather reject the whole notion as being incapable of proof, reminiscent of proofs of God, and construct a justification for the separation of church and state grounded on the reality of modern life in this country and supported by our historically radical democratic principles. Otherwise, “original intent” at the hands of religious conservatives like Scalia will lead to that slippery slope at the end of which lies the historical wreckage of religous fundamentalist nations (e.g., Afghanistan, Iran, Sudan, Israel today and others throughout history).
Posted by V - 5 months, 3 weeks, 6 days, 7 hours, 45 minutes ago

The point regarding the “In God We Trust” phrase is that an “originalist” shouldn’t pretend that a Congressional act in 1955 equals the intent of the Constitution.

The Founding Fathers were radical in their throwing off the yoke of kings and chosing individual freedom and limited authority as how humanity ought to govern itself. Now when their ideas have “won” and are no longer radical but accepted we should not assume that despite all the walls they shattered and their avowed aspirations that they somehow meant to build a new limit to liberty around a narrow reading of their written words. They were a vector on a path that others have disingeniously truncated & tried to wall off. Just like Jesus would spit in the Pope’s face the Founding Fathers would rebel today against the Republic’s turn towards Rome.
Posted by Jay - 5 months, 3 weeks, 6 days, 4 hours, 45 minutes ago

What is most odd is the Left outright hatred of religion. Does anyone in this country REALLY feel pressured into believing in a god or gods? Is anyone being threatened to be a Jew, a Christian, or a Muslim? I think not.

The reason the Left hates religion is because it gets in their way of having an all-powerful government—the very thing the Founders wanted to avoid by putting government BENEATH religion.

The anti-religion Left is really a movement towards fascist totalitarianism. For them, government IS god. And that’s a scary proposition.
Posted by John G - 5 months, 3 weeks, 6 days, 2 hours, 49 minutes ago

I’ll believe that people in the US are not pressured into believing in a god the very first time that a professed atheist gets elected to a serious public office. I doubt that that will be in my lifetime.

I think totalitarian governments are far more likely to rely on religion than not. I don’t think the ‘separate church from state’ civil libertarians are looking to take over all political power. I think the Focus on the Family folks would love to - and of course there are lots of examples elsewhere in the world.

However, I think that Justice Scalia’s point was just that the Constitution says that “Congress” shall not establish religion, so states could. One should not read pesonal preferences into the text. Those who say he picks and chooses where he defers to the Founding Fathers have a lot of evidence on their side.

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