Antonin Scalia tries to tear down that wall (the one between church and state)

On Saturday, Antonin Scalia, Supreme Court Justice, conservative, Catholic, and “originalist” (one who thinks that law must ultimately rest on the original and unchangeable meaning conveyed by the authors of the US Constitution) gave a short speech at Archbishop Rummel High School, a Catholic school in Metairie, Louisiana. In that talk, as reported by two sources (the Associated Press and the New Orleans Times-Picayune), he basically reinterpreted the First Amendment to the Constitution. Instead of claiming that that amendment protects believers and nonbelievers alike, he claimed that it applied only to the faithful, not to atheists or agnostics.  That is a stunning reversal of precedent, and, if you know anything about history, a rejection of Scalia’s own originalism.
Here’s what he said (my emphasis):

He told the audience at Archbishop Rummel High School that there is “no place” in the country’s constitutional traditions for the idea that the state must be neutral between religion and its absence.

“To tell you the truth there is no place for that in our constitutional tradition. Where did that come from?” he said. “To be sure, you can’t favor one denomination over another but can’t favor religion over non-religion?”


The Constitution’s First Amendment protects the free practice of religion and forbids the government from playing favorites among the various sects, Scalia said, but that doesn’t mean the government can’t favor religion over nonreligion.

That was never the case historically, he said. It didn’t become the law of the land until the 60s, Scalia said, when he said activist judges attempted to resolve the question of government support of religion by imposing their own abstract rule rather than simply observing common practice.

If people want strict prohibition against government endorsement of religion, let them vote on it, he said. “Don’t cram it down the throats of an American people that has always honored God on the pretext that the Constitution requires it.”

That’s just wrong. Here’s the First Amendment, written by James Madison in 1789 and passed in 1791 (my emphasis):

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.

Madison was at most a deist, and there’s no indication of religious belief in any of his writings. He was, however, a good friend of Thomas Jefferson, who was again at most a deist, but more probably an atheist/agnostic. And Jefferson’s own views on religion clearly influenced Madison’s.

Three years before the First Amendment was written by Madison, and five before it was passed, Jefferson’s own law, the Virginia Statute for Religious Freedom, had been passed. (Jefferson actually wrote it in 1777 and introduced it to the Virginia legislature two years later). That statute, by the way, was one of three of his accomplishments that Jefferson wanted engraved on his tombstone. The other two are his authorship of the Declaration of Independence and his founding of the University of Virginia; his Presidency isn’t mentioned. What’s clear is that Madison’s First Amendment is based on Jefferson’s law.

It is clear in the Virginia Statute, as well as in Jefferson’s own writings, that he held nonbelief to be just as privileged as other beliefs. Here’s the conclusion of the Virginia Statute (my emphasis):

. . . .Be it enacted by General Assembly that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief, but that all men shall be free to profess, and by argument to maintain, their opinions in matters of Religion, and that the same shall in no wise diminish, enlarge or affect their civil capacities. And though we well know that this Assembly elected by the people for the ordinary purposes of Legislation only, have no power to restrain the acts of succeeding Assemblies constituted with powers equal to our own, and that therefore to declare this act irrevocable would be of no effect in law; yet we are free to declare, and do declare that the rights hereby asserted, are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.
Note the crucial phrases: “no man. . . shall suffer on account of his religious opinions or belief” and that “all men shall be free to profess, and by argument to maintain, their opinion in matters of Religion.” What is nonbelief but “an opinion in the matter of religion”?
If Scalia were really an originalist who interpreted the Constitution according to the authors’ intent, he wouldn’t be saying that it’s okay to favor religion over non-religion. That would have appalled both Jefferson and Madison, and their documents don’t say anything about denigrating nonbelief.
Further, anyone who’s studied American history knows that Jefferson was a man without belief—a deist only if you stretch the term. But Scalia denies even that, jettisoning the palpable facts of history. As the Times-Picayune reports:

Scalia noted that Thomas Jefferson, who first invoked the idea of a “wall of separation between church and state,” also penned Virginia’s religious freedom law, founded a university with dedicated religious space and, in writing the Declaration of Independence, regularly invoked God.

Such deference for a higher power has been consistent ever since, Scalia said.

Has Scalia read the fricking Declaration of Independence? (The Constitution, by the way—the document to which Scalia says he adheres—does not mention God ONCE.) There are two mentions of goddy beings in the Declaration, the first being the rights that come from “The Laws of Nature and Nature’s God”, which is a dubious way to invoke a deity—indeed, it could be seen as pantheism. The other mention is this: men “are endowed by their Creator with certain unalienable Rights. . .”.   That’s a pretty watery statement, probably designed as a rhetorical flourish, and hardly shows Jefferson “regularly invoking God.” If you want to know what Jefferson believed and what Madison intended in the Constitution, look at their personal histories and statements of belief. You won’t find anything about a personal God, and their laws were clearly designed to protect nonbelievers as well as believers.

Oh, Scalia said more:

Citing a quotation attributed to former French President Charles de Gaulle, Scalia said “‘God takes care of little children, drunkards and the United States of America.'” Scalia then added, “I think that’s true. God has been very good to us. One of the reasons God has been good to us is that we have done him honor.”

That is a severe case of faith-based delusion. Why isn’t God so good to Muslims, who do him (in the form of Allah, peace be upon him) even more honor? And clearly God has been best to Scandinavia, where most people are atheists but societal well-being is far higher than in the U.S. Clearly, God loves those best who deny Him most.

Scalia should not be sitting on the Supreme Court. He’s not only addled by faith (remember his belief in Satan?), but he’s violating his own originalistic philosophy when it’s convenient for him to do so. That is judicial activism. Let’s hope that he’ll be off the bench within the next decade, giving Hillary Clinton an opportunity to replace him with someone sensible.


U.S. Supreme Court Justice Antonin Scalia speaks at Archbishop Rummel High School in Metairie on Saturday, January 2, 2016. (Photo by Brett Duke, |The Times-Picayune)

h/t: Les, Randy


  1. Posted January 4, 2016 at 12:47 pm | Permalink

    To be fair, Locke’s ‘Letter on Toleration’, which was the inspiration for ‘the wall’, was pretty harsh on atheists: “Lastly, those are not at all to be tolerated who deny the being of a God. Promises, covenants, and oaths, which are the bonds of human society, can have no hold upon an atheist.”

    • Posted January 4, 2016 at 4:38 pm | Permalink

      But the 17th-century philosopher was not one of the 18th-century Founding Fathers. The latter did not have to take his ideas wholesale!


  2. dotjock
    Posted January 4, 2016 at 12:50 pm | Permalink

    Better to use “Madison/Jefferson at most a deist”, rather than “at best a deist”?


    • Posted January 4, 2016 at 1:03 pm | Permalink

      Yes, good catch. I’ve changed it.

    • Sastra
      Posted January 4, 2016 at 3:53 pm | Permalink

      My understanding is that Madison and Jefferson were what some have called “theistic rationalists,” believing in a god which rewards virtue and punishes vice, but reveals itself through nature, not special revelation.

      More important than what they themselves believed was the fact that they knew and respected deists and atheists — and clearly intended religious debates to be resolved by discussion, not power or vote.

  3. Posted January 4, 2016 at 12:51 pm | Permalink

    A legislature, or the body participating in a Constitutional Convention rarely, if ever, has *a* (singular) original intent. A legislature is a multi-headed beast, usually having as many intentions as it has heads. Originalism is an ontological absurdity. It asks us to base our decisions on a thing that probably doesn’t exist. I guess that makes it a perfect match for theism.

    • anoNY
      Posted January 4, 2016 at 1:01 pm | Permalink

      Jerry is technically wrong about Scalia’s judicial originalism, at least as far as Scalia’s writing are concerned (Scalia is terrible at following his own philosophy).

      Scalia believes we should look to “original meaning” of the text of documents like the Constitution, not necessarily to the intents of the writers (since that might involve mindreading). Original meaning originalism basically means relying on a dictionary and ordinary useage of language (at the time the document was written).

      • Posted January 4, 2016 at 1:12 pm | Permalink

        Okay, I’ll tweak the piece, though the difference is pretty small; after all, a dictionary gives multiple meanings for many words. Look at the second amendment–how can a dictionary settle that??? And will a dictionary tell you the meaning of the First Amendment and how it applies to those without belief.

        Anyway, I think originalism is stupid. Society evolves, and so should the law.

        • Posted January 4, 2016 at 4:40 pm | Permalink

          Isn’t that why you have Amendments in the first place?


        • Posted January 5, 2016 at 11:29 am | Permalink

          Near as I can tell, Originalism is just literalist fundamentalism applied to the legal document in question (the US constitution in this case). (This is not to say that it should be interpreted willy-nilly either.)

      • gravelinspector-Aidan
        Posted January 4, 2016 at 2:17 pm | Permalink

        not necessarily to the intents of the writers (since that might involve mindreading

        Not to say necromancy.

        • Diane G.
          Posted January 5, 2016 at 10:02 pm | Permalink


      • rickflick
        Posted January 4, 2016 at 3:14 pm | Permalink

        I notice Scalia often says that if the meaning is unclear or seems to need modern interpretation, then we should all vote on it. That makes some sense on the face of it, but the small interpretations he objects to suggests we need to essentially revote on much if not most of the Constitution – every so many years. Clearly he’s talking through an orifice that is not his buccal cavity.

      • Filippo
        Posted January 4, 2016 at 4:41 pm | Permalink

        Anyone know in a nutshell what Scalia has to say about slavery as it relates to the U.S. constitution?

        • Les
          Posted January 5, 2016 at 8:13 am | Permalink

          Scalia would say, despite his personal distaste, a Supreme Court justice had to rule for slavery until the 13th Amendment was made law. He sees the solution to bad law is through elected representatives, not the unelected courts.
          His view makes it hard to give minorities equal rights. A politician can screw unpopular minorities and still be elected.

  4. eric
    Posted January 4, 2016 at 12:53 pm | Permalink

    In addition to the first amendment, Article VI paragraph 3 is a fairly clear example of how the Constitution treats nonbelief with the same respect as belief. It very clearly says no religious test. It doesn’t say no sectarian religious test or no sectarian test.

    • Posted January 4, 2016 at 12:59 pm | Permalink

      Yes, and this is what a delegate to the convention reported back:

      “The part of the system which provides, that no religious test shall ever be required as a qualification to any office or public trust under the United States, was adopted by a great majority of the convention, and without much debate; however, there were some members so unfashionable as to think, that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that, in a Christian country, it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism.”

      (citation here)

      • Shwell Thanksh
        Posted January 4, 2016 at 9:47 pm | Permalink

        Well, speaking as a Downright Infidel myself, I do hope no one ever confuses me with a “professor of christianity.”

  5. Posted January 4, 2016 at 12:57 pm | Permalink

    The other mention is this: men “are endowed by their Creator with certain unalienable Rights. . .”.

    It’s worth remarking that (most likely) Jefferson did not write that anyway. The original Jefferson draft was edited by a committee of six, and that was one change. Jefferson’s draft said that rights derive “from that equal creation”, with no mention of a “creator”. (E.g. see account here.)

    • Posted January 4, 2016 at 1:16 pm | Permalink

      Another point. The wording of the 1st Amendment was very deliberate, and other versions, along the lines of Scalia’s interpretation, where voted down.

      Other wordings considered were:

      “Congress shall make no law establishing any particular denomination of religion in preference to another, or prohibiting the free exercise thereof, nor shall the rights of conscience be infringed.”


      “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, …”

      (more details here)

    • Sastra
      Posted January 4, 2016 at 4:01 pm | Permalink

      Good point. Technically, the “Creator” doesn’t have to be a deity. Mindless nature works just as well.

      “The moon creates waves.”
      “Electricity creates magnetism.”
      “Evolution creates species.”
      “A state of common humanity creates social rights and duties.”

      Theists really, really need to read intention into the term “creator.” But it’s not necessary at all.

  6. anoNY
    Posted January 4, 2016 at 12:57 pm | Permalink

    “Scalia said, but that doesn’t mean the government can’t favor religion over nonreligion.”

    I understand that Scalia is religious, but I don’t understand what he thinks “favor”-ing religion over non-religion means?

    Does he mean that a government agency should state in writing that it is better to be religious than not religious? I don’t see how much good that would do, since no one really likes the government anyway.

    Does he mean that the government should support religion financially? They by his own reasoning, it should support all religions equally (which might get expensive considering all of the churches that would pop up to get handouts).

  7. eric
    Posted January 4, 2016 at 12:59 pm | Permalink

    For reference, here is the text of Jefferson’s letter to the Danbury Baptists. The notation in italics is worth thinking about, as it directly pertains to the concept of invocations before school board meetings and the like; Jefferson pretty clearly wouldn’t even have the government do stuff like that.

  8. Stephen Barnard
    Posted January 4, 2016 at 12:59 pm | Permalink

    The Satanists may have something to say about this.

  9. JonLynnHarvey
    Posted January 4, 2016 at 1:01 pm | Permalink

    The Declaration’s “Nature’s God” is almost surely a covert importing of Enlightenment deism/pantheism as Matthew Stewart has argued well in his book entitled “Nature’s God”.

    Jefferson clearly disbelieved in a separate supernatural plane of reality a la stuff along the line of Catholic Thomism. Thus he cut out the miracles from his “Jefferson Bible”. Jefferson liked Jesus, but abjured Christianity, and utterly disbelieved in any kind of supernatural revelation.

    Jon Meacham’s 2012 bio of TJ claims him as a theist, but there are conflicting views.

    Scalia has taken a step further than judges who defend ceremonial deism (something Jefferson participated in, albeit for probably political reasons.)

  10. Kevin
    Posted January 4, 2016 at 1:02 pm | Permalink

    Scalia is a man afraid of what he might see after he dies…nothing. So in his life he tries to surround himself with as many fools as possible to comfort him on his journey through this life, which is founded on faith. Too bad he is not so convinced of his delusion that he chooses a burro rather than an auto to get to work.

    • mfdempsey1946
      Posted January 4, 2016 at 4:53 pm | Permalink

      The tombstone of the great Japanese filmmaker Yasujiro Ozu contains not his name or other statements about him bur, rather, just one item: a Chinese character that has been translated as meaning “nothingness”.

      If Scalia is such a hard-core Catholic, why should he be afraid of perhaps, instead of the Pearly Gates, seeing “nothing”.

      He needn’t be. If he doesn’t find the Pearly Gates, if he finds nothingness instead, he won’t actually find it and he won’t know it. He’ll be part of it.

      Best, if possible, to face this as Ozu did.

      • rickflick
        Posted January 4, 2016 at 6:24 pm | Permalink

        That’s a great Ozu story. For those unfamiliar with Yasujirō Ozu, he was a great Japanese film maker.

        “His most lauded works include Late Spring (1949), Early Summer (1951), Tokyo Story (1953), and Floating Weeds (1959).”

        “His reputation has continued to grow since his death, and he is widely regarded as one of the world’s most influential directors.”

        Some of these films are on YouTube.

  11. tomnikoly
    Posted January 4, 2016 at 1:40 pm | Permalink

    “To be sure, you can’t favor one denomination over another but can’t favor religion over non-religion?”

    That statement makes me wonder if he ever read Jefferson’s autobiography wherein he comments on the meaning of the Virginia Statute for Religious Freedom:

    “Where the preamble declares, that coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word “Jesus Christ,” so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion;” the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan, [sic] the Hindoo, [sic] and Infidel of every denomination.”

    —from Thomas Jefferson’s autobiography (1821). He is describing the intent of the Virginia Statute for Religious Freedom.

    Note his use of the word “infidel” (non believer). Most historians agree that the Virginia statute was used as the model for the Establishment Clause and the free exercise clause of the First Amendment.

  12. tomh
    Posted January 4, 2016 at 1:46 pm | Permalink

    Scalia has long promoted the idea that the government can favor religion over non-religion, and as far as his saying that you can’t favor one denomination over another, he has objected to that idea also. In his dissent in McCreary County v. ACLU he opined that the Establishment Clause didn’t apply to polytheists or atheists.

    “With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

    And he based this, not on his so-called originalism, but on “historical practices.”

    • Sastra
      Posted January 4, 2016 at 4:07 pm | Permalink

      He’s also no doubt basing it on his belief that “God” is an obvious fact of reality and non-theists can therefore be treated like a bunch of cranks.

      Does he really want to vote on the existence of God? There’s no hiding behind faith if that happens .. and no stopping it from coming up again and again and again.

    • Xuuths
      Posted January 5, 2016 at 9:29 am | Permalink

      His sophistry is boundless, along with his arrogance.

  13. MP
    Posted January 4, 2016 at 2:04 pm | Permalink

    giving Hillary Clinton an opportunity to replace him with someone sensible.

    So is this an automatic assumption that Clinton will win in 2016?

    P.S. – I am not much familiar with US politics, so don’t know if Hillary can make appointments in his current position

    • eric
      Posted January 4, 2016 at 2:21 pm | Permalink

      At this point my guess would be that ‘a Clinton win’ would get the lowest odds of any outcome from a bookie. But its still very early and definitely not a foregone conclusion.

      The President appoints Supreme Court justices when they die or retire. The court currently has four justices who are in their 70s or 80s. So yes, it’s pretty likely that the next president will end up appointing at least one new justice.

      Those four are Scalia, Kennedy, Breyer, and Ginsberg; two of the liberals, a conservative, and Kennedy, who is a swing voter but who generally sides with the liberals on social issues such as abortion and gay rights. So a democratic president is unlikely to shift the position of the court very much; he/she will replace one conservative at most and may not replace any (if Scalia doesn’t retire or die). OTOH a GOP president may have the ability to make a huge shift in the court because they may get a shot at replacing two liberal justices plus Kennedy.

  14. EvolvedDutchie
    Posted January 4, 2016 at 2:40 pm | Permalink

    At secondary school I used to be a great admirer of Thomas Jefferson. Although I still hold him in high regard, I’ve grown more fond of James Madison, because Madison was the guy who actually made things happen. He engineerd the passage of the Virginia Statute in 1786, when Thomas Jefferson was ambassador of the U.S. to France. Madison turned Jefferson’s ideas into public policy.

  15. alexandra
    Posted January 4, 2016 at 2:56 pm | Permalink

    Don’t the SSs take an oath to uphold the Constitution? never happen, but he should be impeached. And who appointed him – Reganites – should be so ashamed.

  16. Posted January 4, 2016 at 3:25 pm | Permalink

    Scalia speaks like the sycophantic supplicant that he is. He is lucky that his needs and desires just happen to be gratified within the country in which he was born. But to grovellers like Scalia, this American puddle fits him so well that such a superb match had to be made in heaven — the one in which his god resides. His god pats his back and Scalia pats his god’s back in return because he doesn’t want the precious puddle to dry up.

    His interpretation of the De Gaulle quote which is a variation on one made by Bismarck which apparently was a variation on one dating from 1790ish when Europe noted that despite all the stupid mistakes made by America, it just kept on chugging along is not even wrong, not even a deepity. It’s a straight-out arse-kissing, and slobbering an arse that doesn’t even exist.

  17. Christopher Bonds
    Posted January 4, 2016 at 4:16 pm | Permalink

    Maybe what needs to happen is that the first amendment be amended to clarify that atheists, agnostics, secularists, etc. have equal status with believers and that the government will not favor one over the other. Period. It’s placing too heavy a burden on the founding fathers to argue that their words were immune to the kinds of societal change we have seen since the beginning of the United States.

  18. Randy Schenck
    Posted January 4, 2016 at 5:01 pm | Permalink

    Even if Scalia forgot how to read the Constitution and is totally ignorant of history, he surely can take a look at Wikipedia concerning the religious test in the Constitution and see that his own court has ruled on this. Torcaso v. Watkins seems to be pretty clear and he is dead wrong.

    How can anyone except a religiously delusional person not understand what no religious test means. The guy should be impeached.

    • rickflick
      Posted January 4, 2016 at 6:27 pm | Permalink

      “The guy should be impeached.”

      The same just punishment for being a crude bastard crossed my mind, but I’m pretty sure, at the SCOTUS level the bar is set pretty damn high – or low – depending how you look at it.

  19. Roan Ridgeway
    Posted January 4, 2016 at 7:39 pm | Permalink

    “Peace be upon Him” doesn’t work for me. An omnipotent Allah would only suffer an absence of peace if it was by His choice. One may as well say to the eternal Diety, long live Allah.

  20. Roan Ridgeway
    Posted January 4, 2016 at 7:55 pm | Permalink

    Scalia, lIke many who declaim originalism, suspends strict interpretation of the Constitution when steadfastness becomes inconvenient.

    Posted January 5, 2016 at 12:22 am | Permalink

    Isn’t Scalia the “originalist” who ignored the first 13 words of the Second Amendment in one of his rulings? I think Tino has gone off the deep end

  22. Tom
    Posted January 5, 2016 at 12:45 am | Permalink

    Since some Americans seem to think that President Obama is a Muslim (or a sort of fellow traveler) and is therefore unfit to be President, this presumably means (to them) only the Christian Americans religion would be acceptable. Perhaps Judge Scalia should clarify which religion he wants to meddle in Government and why.

  23. Jonathan Dore
    Posted January 5, 2016 at 1:14 am | Permalink

    “Let’s hope that he’ll be off the bench within the next decade, giving Hillary Clinton an opportunity to replace him with someone sensible.”

    Yes, and, just as importantly, someone *young* — at least relatively so, as Obama has done. The two appointed by the first President Clinton (Ginsburg and Breyer) were both, unaccountably, older than the two appointed by his *predecessor*, Bush Sr (Thomas and Souter), meaning the age gap at the time of their appointment was even greater. That’s just dumb.

    • eric
      Posted January 5, 2016 at 7:26 am | Permalink

      At the time of appointment, Ginsburg was 60 and Breyer was in his late 50s. I have no problem with a President appointing a justice with the expectation of 15-20 years of service from them. So I don’t think Clinton did anything wrong, and I’m not particularly in favor of pushing the age of SCOTUS appointments down into the 40s or early 50s just so “your party” (whichever one controls the Presidency) can try and lock up the Supreme Court for many decades at a time. Frankly, I’d much rather the system be changed in the other direction and we put a 20 year or age 80 limit on SCOTUS service, so that turnover occurs in an orderly and predictable fashion and judges don’t feel political pressure to stay on the job long past the time when 99% of the population would have retired.

      • Jonathan Dore
        Posted January 5, 2016 at 4:53 pm | Permalink

        Well that would be fine if there were concrete age limits that had to be observed by everyone. But Bush certainly tried to lock up the SC when he appointed Thomas and Souter, and it’s only luck that the latter turned out to be one of the more bench’s more liberal members.

      • Jonathan Dore
        Posted January 5, 2016 at 4:59 pm | Permalink

        Oh, and Reagan’s appointees were 50, 51, and 52 respectively when they started, so the Republicans have absolutely no shame about trying to game the SC.

        • tomh
          Posted January 5, 2016 at 5:07 pm | Permalink

          That’s nothing new. Since the beginning, the average age of newly appointed justices is 53.

  24. Richard Bond
    Posted January 5, 2016 at 4:39 am | Permalink

    All this seems like a good argument for having no written constitution… /smug

  25. Francisco
    Posted January 5, 2016 at 8:52 am | Permalink

    I think his position is a good news. Catholics always hate protestants,deists and all who don’t follow catholic church authority. But you can feel a great change: now they help each other in front of a mayor danger: atheists. They are loosing people, then money and power. I -in rebellion inside a catholic sect, heralds of the gospel– was persecuted by protestants in Brazil (to my surprise). Is the same alliance: lets put aside our sects differences to help each other against the real enemy: atheists.

  26. Mobius
    Posted January 5, 2016 at 11:39 am | Permalink

    Scalia will invoke originalism if that will give him the result he wants. He will argue against originalism if his desired result requires that. Sadly, Scalia decides what he wants and then tailors his arguments to it, damn the principles involved.

    • rickflick
      Posted January 5, 2016 at 11:50 am | Permalink

      “decides what he wants and then tailors his arguments to it”
      That sounds a lot like religious apologetics.

  27. jeffery
    Posted January 5, 2016 at 4:31 pm | Permalink

    “He’s as blind as he can be,
    just sees what he wants to see-
    Nowhere man, can you see me, at all?”

    It’s truly frightening to think that this deluded and possibly, now, senile man has been on the SCOTUS for almost 30 years.

  28. Michael Minnig
    Posted January 5, 2016 at 7:28 pm | Permalink

    Justice Scalia is being dishonest when he implies that “found[ing] a university with dedicated religious space” reflects any plan for state-sponsored religion on Jefferson’s part. Jefferson’s plan for a university that was unaffiliated with any denomination, had a non-clergyman as president, had no seminary, and had a library (rather than a chapel) at campus center were all a novelty at the time. He did reserve space for denominational chapels, but they were independent of the university itself.

    Jefferson’s plan for a secular University of Virginia caused an uproar among the 19th century equivalent of theocrats like Justice Scalia, and Jefferson was vilified for his vision of an “academic village.”

  29. Diane G.
    Posted January 5, 2016 at 10:20 pm | Permalink

    “…gave a short speech at Archbishop Rummel High School…”

    Awesome venue!

  30. Mike
    Posted January 6, 2016 at 7:34 am | Permalink

    Scalia is a disgrace to Jurisprudence and should never have been appointed to the Supreme Court, many of his decisions have been coloured by his faith and that is a disgrace.

  31. KD
    Posted January 8, 2016 at 12:37 am | Permalink

    I’m not sure what the point is here. “An Establishment of Religion” is a state church, like you have in the fascist regime of the United Kingdom, where everyone is a Bible believing Christian and they still burn witches. No “Establishment of Religion” means no federal established church. At the time the Constitution was adopted, 4 states had Established Churches, and the Constitution would never be ratified if there was a debate about which Church should be the Church of America.

    Laicite comes from France, where Catholicism was disestablished and shoved out of the public square in the 19th Century. America never adopted the laicite until the 1960’s, and it is foreign to our Constitutional History. The school prayer decision was one of the most unpopular Supreme Court of its time, with perhaps the exception of Dred Scott.

    I have no problem with something like the New Deal, when you effectively amend the Constitution by democratic will, but it is propaganda to pretend that the Founder’s anticipated a federal government on the scale and scope of FDR’s government.

    Although the American Laicite was adopted via unelected Judges (the same forces that opposed the New Deal), it is the law of the land. But we should not pretend that Jefferson or Madison opposed prayer in school or Nativity scenes on the Commons, anymore than we should pretend the Founders were all Evangelical Christians who wanted America organized in accordance with the customs of the Plymouth Colony.

    The ACLU started out as a Communist Front (back in the 20’s when “every intelligent person knew” that Communism was the way of the future), and then when in the late 30’s it was discovered that Stalin had collaborated with Hitler, Communism was dropped and atheism put in its place. Yeah Atheism! But here again, Communism, atheism, laicite, these are all late 19th Century movements in Europe, with no connection to the American Founding (Salon atheism was 18th Century, but political atheism is later, and really flourishes in early 20th European Mass Movements).

    I mean, perhaps yeah Communism (or Socialism), yeah atheism, yeah laicite, but none the less, this is an alien tradition which evolved independently and subsequent to the Founders. Although Scalia is clearly someone who has never let truth get in the way of his politics, his statement is more accurate historically than the ACLU and PFAW agit-prop (which is only matched for historical accuracy by Regents University).

  32. KD
    Posted January 8, 2016 at 12:49 am | Permalink

    The weirdest thing in all this religious jurisprudence is the conflation of “God” with religion. “God” is primarily an ontological category (“prime mover”, “uncaused cause”) from an Aristotelian perspective, and beyond ontology from a more Platonic perspective. Anthony Flew, having spent decades as a non-religious atheist finished the end of his life as a non-religious theist. Likewise, there are a significant number of Jews who practice Judaism as an ethnic identity, but have no belief in God. Not to mention a number of non-theistic and polytheistic religions (and polytheism is to monotheism like post-modernism is to modernism).

    Believing in God (or not believing in God) no more makes you religious than believing in efficient causes or teleology makes you religious. Even if you believe in God, you are not committed to virgin births or trips on flying horses. Even if you accept that God could perform miracles, there is nothing to say you should accept any particular religious tradition as true or valid (as far as I can tell). I think it takes something more.

    • Diane G.
      Posted January 8, 2016 at 1:46 am | Permalink

      “The weirdest thing in all this religious jurisprudence is the conflation of “God” with religion.”

      Hmmm. While it’s possible to believe in gods without belonging to a religion, it’s difficult (by most accepted definitions of religion) to have a religion without a god. And it’s the organized, god-attesting religions that are forever trying to codify their tenets in law and encroach on the rights of the non-religious.

      Remember that as atheists we aren’t against “gods” (hard to be against something that’s non-existent), just the demands of the god-botherers.

      • Posted January 8, 2016 at 3:31 am | Permalink

        “by most accepted definitions of religion”

        Well… I think that remains a bone of contention. Think about Tibetan Buddhism v. Zen Buddhism. Is the former a religion and the latter not?


        • Diane G.
          Posted January 8, 2016 at 8:14 pm | Permalink

          Without knowing a whole lot about them…yes!

          • Posted January 9, 2016 at 2:31 am | Permalink

            Well, so would I. But you know there are folks who’d claim both as religions, dontcha?


            • Diane G.
              Posted January 11, 2016 at 12:16 am | Permalink

              Yes. We call them accomodationists, don’t we?

              • Posted January 11, 2016 at 3:25 am | Permalink

                Not always.


              • Diane G.
                Posted January 11, 2016 at 4:45 am | Permalink

                Agree. Sometimes an attempt at a glib reply falls pretty short of the mark. I am glib-challenged.

    • Diane G.
      Posted January 8, 2016 at 2:05 am | Permalink

      I’m curious, though–why bother to believe in “an ontological category?”

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