Emperor Scalia Has No Clothes
In a recent speech at Colorado Christian University, Supreme Court Justice Antonin Scalia stated “…our Constitution has been greatly distorted. The notion that our Constitution forbids anything that favors religion over non-religion is a lie”. Let’s start with Scalia’s curious use of language. He is essentially saying that anyone who disagrees with him on this issue is lying. Not that they are mistaken; not that they are construing the Constitution incorrectly. No, according to Justice Scalia, anyone who sees the Constitution differently than he does is lying. How does he know? One of the core principles of our legal system is that you don’t make an accusation against someone without evidence, but here’s a Supreme Court judge doing that very thing. The word “lie” implies a knowing misstatement of fact. And this isn’t even a question of fact that we are dealing with here. This is a question of interpretation. I believe that Justice Scalia is absolutely wrong in this issue of Constitutional construction, but I have no evidence that he is lying (i.e. he really believes otherwise but is making a deliberate misstatement), and so I give him the benefit of the doubt and merely say he is wrong. But Scalia can’t leave it at disagreeing with contrary opinions, he has to call those who disagree with him “liars”, even though this supposedly great jurist has absolutely no evidence that this is the case.
Justice Scalia has been described (by J.J. Goldberg in “The Forward”) as “the intellectual anchor of the Court’s conservative majority”. By his own self-description he is both an “Originalist” and a “Textualist” with regard to Constitutional construction. Originalists believe that a statute should be interpreted with regard to the original intent of the drafters of the statute, which should not be seen to bend with the times. A textualist believes that a statute should be interpreted only according to a plain reading of its text; context such as legislative history, contemporaneous writings of its authors etc… should be ignored. So let’s take a look at the Establishment Clause of the Constitution and give it a plain reading: “Congress shall make no law respecting an establishment of religion”. In what way is government favoring religion over non-religion not an “establishment of religion”? Remember, the First Amendment does not prohibit the establishment of “any particular religion”; it prohibits the establishment of religion. Scalia’s statement also begs the question “whose religion should be favored”? One of the reasons for the Establishment Clause is that by prohibiting the establishment of religion, period, we avoid bloody and divisive battles over whose religion it is that the government should establish.
Antonin Scalia is engaging in rank hypocrisy. As a textualist, he should read the Establishment Clause in its clear, unambiguous language and let it go at that, even though he wishes it said something different. But this “textualist”, “originalist”, and “strict constructionist” is willing to ignore his own so-called principles in order to get to the result he wants, which is the evisceration of the “wall of separation between church and state” mentioned so famously by Thomas Jefferson in his 1802 letter to the Danbury Baptists. So it’s textualism and originalism so long as those two theories of construction get the good Justice what he wants. If not, forget your principles and engage in whatever is necessary, including engaging in childish name calling (“you’re a liar”), thereby smearing those who disagree with you. And so Emperor Scalia, the great “intellectual anchor of the Court’s conservative majority” stands naked, with his hypocrisy on view for all to see.