Does anyone else believe that the powers of government come from God, instead of from the consent of the governed, as was set forth in the Declaration of Independence?
Where in the Constitution does it says that government derives its power from God? For a strict constructionist, Scalia is playing fast and loose with the intent of the framers; why is he not called on it by conservatives who hold liberal Justices to a narrow standard of strict constructionism?
The danger to democracy comes when the powerful believe thay have a divine right to impose their morality on the rest of the country. We decided long ago that this was not consistent with democracy, and concluded a monarchy had no place in American government. It is a dangerously slippery slope when we allow the divine right of government to creep back into the halls of goverment, which diminishes the consent of the governed and institutes a theocracy that is antithetical to the American way.
If we’re talking about democracy*, then be careful what you wishi for. I would suspecct that a considerable majority of Americans DO believe that governments derive their authority from God. I don’t expect that we actually have polling data on this, but do you really think otherwise? Keep in mind that more than 50% of Americans think that God created humans in their present form, and that we didn’t evolve from other organisms. My cite (polingreport) no longer lists that poll result, but I offer this one in its place: 76% of Americans think that the 10 Commandments should be allowed to be displayed on government propoerty, including courthouses.
I propose that Justice Scalia is not a threat not to democracy, but to rule by minorty elites. Whether that is a good thing or a bad thing is a seperate issue.
I don’t like Scalia. I think he’s basically a bad person, and many of his opinions on things like history aren’t worth the toilet paper I wipe my ass with. This particular case, I agree: he’s poised to make some tortured and crappy legal arguments based on an already demonstrably patheticaly bad reading of history.
But I think he’s a powerfully important jurist inasmuch as he fights for the idea that legislatures get to make laws, and that the democratic process should ultimately decide what the laws are, and judges should be loathe to go in direct contradiction to them unless there is a very high standard for constitutional no-nos to be handed down.
Still, anyone who can claim that the government posting a notice in a freaking courtroom that I am an evil person unless I believe in and worship the Jewish god isn’t a pretty nasty incursion of the government into the religious business is a total tool and a jerk to boot.
As much as I am personally against the posting of the 10 commandments in a government office, it’s still a stretch to read that into the establishment clause. I wish to hell that the Founding Fathers were more explicit about the separation of Church and State, but the fact is they weren’t.
Imagine what that amemdment would look like if it were to be written today. I strongly believe that it would be MORE tolerant of an intermingling of religion and government than the original text.
In the end, we have to submit to the will of the people. The only other alternative is rule by the minorty, and that scares me MUCH more than rule by the majority. And ask yourself-- exactly how much is justice comprimised by having the 10 C’s posted in government buildings? Are you seriously concerned about being charged with blasphemy?
Natural law is seen to be based on a higher authority. We are given natural rights by a higher authority, when John Locke introduced the concept of natural law and natural rights the “authority” that gave these people rights “naturally” was the divine.
Keep in mind Madison, and others who wrote the constitution were not only well versed in what Locke wrote, but big fans of it.
Scalia is not by any stretch of the imagination a threat to democracy. I disagree strongly with his particular school of constitutional interpretation, but he does practice it with reasonable rectitude. I am concerned with two things: his abrasive personality portends bad news when the Chief Justice retires, whether or not he is the nominee to replace him; and he tends to allow himself to be influenced far too strongly by his conservative Catholic beliefs. (That is not a negative against Catholicism, but against allowing one’s jurisprudence to be affected by one’s religious beliefs generally; it happens that Scalia is a devout Catholic.) As noted, “the laws of nature and of nature’s god” are susceptible to a theist understanding as well as a deist or secular one; on this, I agree in principle with Scalia, though not in the application which he puts on it in some cases.
I disagree strongly. The government posting commandments in a court of law that declare a good portion of their citizens to be preemptively guilty of the very supposed “basis” of law, that declare various religious commands to be the “law of the land,” is an affront not only to establishment but my right to a fair hearing and equal treatment. This is well within the realm of legitimate interpretation of the plain text of the 1st amendment, incorporated. Any reading of the discussion surrounding the 1st amendment, what they understood it to mean, was that the federal government was not to be in the religious game: that place was reserved for the states and the people. It is only a short step to the incorporation doctrine to make state entites obey this as well.
And frankly, while I respect and agree with the argument that laws should ultimately be up to the legislature, I don’t really have a lot of patience for many of people who declare that such and such should better be written into law. While I believe it from you and don’t mean to attack you here, I don’t think many others are in the least sincere when they claim this: they are out to score points against activist judges purely for temporal and partisan reasons, not out of any sincere values. They make no effort at all to push for such things legislatively or stand up for what’s right, and their claimed values are empty tissues of temporary plausibility.
I don’t think Scalia is a particular danger to a democratic society. However I do think that for may taste he votes too often in favor of the government restricting individual rights that are not specifically protected.
As to John Locke. I haven’t read Locke in quite a while but I didn’t get the impression that he wrote that we get our rights from a higher authority. My impression was that a person in a “state of nature,” is answerable only to himself or herself. The state of nature being one in which the individual is alone and depends solely upon him or her self for survival. As soon as one other individual enters the picture restrictions on actions by either of them also come into play for the furtherance of the common good.
I can’t believe that anyone thinks that laws regulating interstate commerce are handed down from On High, or those on speed limits, or parking on streets or thousands of other laws and ordnances. And as soon as some laws are obviously man-made separating out those presumed to come from On High and those from down below becomes complex. It’s better, in my view, to lean toward simplicity and act as if all laws are man made to further man’s purposes.
Antonin Scalia is not a danger to democracy. Regardless of what he does in his life, democracy will still be around both in principle and as the guiding policy of the United States after he is gone.
That said, I have gradually lost the respect I once held for Justice Scalia. He undeniably has a brilliant legal mind but over the years he has become lost in its use. Scalia used to follow a legal path to its logical outcome and stand by it, even in those cases where he didn’t like that outcome. But now it appears he determines an outcome he’d like, then builds a legal path to it and declares it was the inevitable destination. In this he is playing two roles - acting as an advocate for one point of view while he should solely be acting as a neutral party in reviewing the advocacy of others.
He’s certainly no threat to the privileges of corporations, as well as those enjoyed by the richest 1 or 2 percent … Certainly you aren’t referring to the “Hollywood liberals”?
May I reframe the debate? I regret the title I gave it, a result of the anger I felt when I read Scalia’s words. The point of my OP was not Scalia per se, but his assertion that government derives its authority from God. To that end, I would like to direct further discussion to the actual debate I was thinking when I wrote it:
Does government derive its authority from God, or from the consent of the governed?
Mods, if possible, I would like to change the title of this thread.
I’m dead serious. If we put everything up for a vote in this county (ie, if we were more of a democracy and less of a constuttionaly republic) you’d see a country very close to the ideas that Scalia espouses. Do you think the poll I cited is incorrect-- ie, that a significant majority of Americans are OK with the 10 Cs in public buildings? The only thing that would prevent that is a ruling by a minority elite; eg, the SCOTUS.
Polycarp: I tend to agree with you about Scalia’s abrasive personality. Someone in a position of considerable authority, such as a SC justice, should not mock the people he is meant to serve, even if they are lawyers presenting a case before him that he disagrees with.
By that token, John, segregation and institutionalized discrimination were supported by the majority in virtually every Southern state prior to 1954 (and for a goodly time thereafter), since the majority ethnic group was white and the majority of whites sided with the established practices. Does that mean that they were morally correct in doing so? Democracy, after all!
We’re a constitutional republic, in which there are broadly written definitions of rights which the individual has guaranteed to him, despite what the majority may feel appropriate. To my mind, this furnishes the proper balance between majority rule and individual freedom. (I believe I’ve pointed out before that Hugo L. Black fancied himself a strict constructionist in his First Amendment absolutism: “When it says, ‘Congress shall make no law’ [restricting freedom of speech], it means that Congress shall make no law!” Whatever you choose to say, or, by extension, write, depict, etc., by way of expressing your view, is in his view protected 100% by that guarantee.)
John, the following is obviously extremist reductio ad absurdam, but I’ve found that exploring the extremes of advocated views sometimes helps clarify actual positions, so kindly don’t be offended: Would you consider that democracy gives the Commonwealth of Massachusetts the right to legislate that publicly advocating Fundamentalist or neoconservative views is a capital crime? Or Arizona the right to do likewise for liberals?
If not, where do you define the limits to democracy and majority rule? And why there?
I was taken aback by Scalia’s statement too. Fear Itself, I agree with you that the Justice’s statements were disturbing, but just as an aside the Declaration of Independence has no legal force.
Still, Astorian and Abbie, what has the OP done to deserve gratuitous public belittling? Granted, I don’t know his history here.
I understand that, but by the same token, neither does the Constitution declare that the authority of government is derived from God. This is another example of Scalia injecting his personal religious views into a case that should be governed by the Constitution.
I am a well known and outspoken liberal, which in some people’s minds alone demands gratuitous, content-free jabs in lieu of debate.
If we lived by strict majority rule we would almost certainly have seen mass exterminations of various ethnic populations during the several points in the US’s history. The Japanese weren’t all that popular during WWII, the Irish have never been all that popular, those “uppity” negroes would have been put to the sword in a large number of states after the Civil War.
Direct majority rule is a terrible idea and appealing to what would happen under such a system is a poor buttress for an arguement.