Gov't Authority from God? (prev: Scalia Danger to Democracy?)

[Revtim]

Has the Supreme Court ever made a decision in the past where arguments of this sort were put forth?

I also strenuously disagree with Scalia’s arguments in the OP, but I would expect he wouldn’t be the first misguided justice to make such statements, and democracy mostly has survived so far. Sad that it’s happening in the 21st century, though.

[Mtgman]

Plus, if the “minority elite” were actually ruling(as opposed to merely stopping the majority from running roughshod over them) then we’d see everyone doing drugs, mass converting to scientology, and breaking up with their partners each time they get a new job(using the “hollywood elites” as the example here). If the SC justices were the ruling elites, then we’d see an even more dysfunctional society as everyone would be required to bicker for days over trifles.

Enjoy,
Steven

[John_Mace]

@Polycarp

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!

I disagree wholeheartedly with Scalia’s statement. I guess I’d have to, since I don’t believe in God. But the OP asked if Scalia was a danger to Democracy, asking if anyone agrees with:

JUSTICE SCALIA: And when somebody goes by that monument, I don’t think they’re studying each one of the commandments. It’s a symbol of the fact that government comes – derives its authority from God.

I’m just saying that I suspect most people in the US ***would ***agree with that, and I cited some evidence to support it. The OP didn’t frame the debate about what is morally correct, but about what is more democractic. If we want to argue about morals, that’s an entirely different debate.

[BrainGlutton]

@John Mace

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.

Nevertheless, there is no mistaking their intent. From “Our Godless Constitution,” by Brooke Allen, in The Nation, 2/3/05, http://www.thenation.com/doc.mhtml?i=20050221&c=1&s=allen:

In the eighty-five essays that make up The Federalist, God is mentioned only twice (both times by Madison, who uses the word, as Gore Vidal has remarked, in the “only Heaven knows” sense). In the Declaration of Independence, He gets two brief nods: a reference to “the Laws of Nature and Nature’s God,” and the famous line about men being “endowed by their Creator with certain inalienable rights.” More blatant official references to a deity date from long after the founding period: “In God We Trust” did not appear on our coinage until the Civil War, and “under God” was introduced into the Pledge of Allegiance during the McCarthy hysteria in 1954 [see Elisabeth Sifton, “The Battle Over the Pledge,” April 5, 2004].

In 1797 our government concluded a “Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli, or Barbary,” now known simply as the Treaty of Tripoli. Article 11 of the treaty contains these words:
As the Government of the United States…is not in any sense founded on the Christian religion–as it has in itself no character of enmity against the laws, religion, or tranquillity of Musselmen–and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.
This document was endorsed by Secretary of State Timothy Pickering and President John Adams. It was then sent to the Senate for ratification; the vote was unanimous. It is worth pointing out that although this was the 339th time a recorded vote had been required by the Senate, it was only the third unanimous vote in the Senate’s history. There is no record of debate or dissent. The text of the treaty was printed in full in the Philadelphia Gazette and in two New York papers, but there were no screams of outrage, as one might expect today.

The Founding Fathers were not religious men, and they fought hard to erect, in Thomas Jefferson’s words, “a wall of separation between church and state.” John Adams opined that if they were not restrained by legal measures, Puritans–the fundamentalists of their day–would “whip and crop, and pillory and roast.” The historical epoch had afforded these men ample opportunity to observe the corruption to which established priesthoods were liable, as well as “the impious presumption of legislators and rulers,” as Jefferson wrote, “civil as well as ecclesiastical, who, being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavoring to impose them on others, hath established and maintained false religions over the greatest part of the world and through all time.”

If we define a Christian as a person who believes in the divinity of Jesus Christ, then it is safe to say that some of the key Founding Fathers were not Christians at all. Benjamin Franklin, Thomas Jefferson and Tom Paine were deists–that is, they believed in one Supreme Being but rejected revelation and all the supernatural elements of the Christian Church; the word of the Creator, they believed, could best be read in Nature. John Adams was a professed liberal Unitarian, but he, too, in his private correspondence seems more deist than Christian.

George Washington and James Madison also leaned toward deism, although neither took much interest in religious matters. Madison believed that “religious bondage shackles and debilitates the mind and unfits it for every noble enterprize.” He spoke of the “almost fifteen centuries” during which Christianity had been on trial: “What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution.” If Washington mentioned the Almighty in a public address, as he occasionally did, he was careful to refer to Him not as “God” but with some nondenominational moniker like “Great Author” or “Almighty Being.” It is interesting to note that the Father of our Country spoke no words of a religious nature on his deathbed, although fully aware that he was dying, and did not ask for a man of God to be present; his last act was to take his own pulse, the consummate gesture of a creature of the age of scientific rationalism.

Justice Scalia is considered the SC’s leading proponent of “orginalism” – “the view that the meaning of a written constitution is (or should be) consistent with the meaning as it was originally understood by those who drafted and/or ratified the constitution.” (http://en.wikipedia.org/wiki/Antonin_Scalia; http://en.wikipedia.org/wiki/Originalism.) If he were a true originalist, a phrase like “government comes from – derives its authority from God” would never escape his lips.

[zev_steinhardt]

@Fear Itself

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.

As long as you’re basing your argument on the Declaration and not the Constitution, is it possible that Scalia is deriving his argument from the first part of the quote that you presented in the OP?

IOW, it is true that (according to the DOI) that the government gets it’s rights to govern from the consent of the governed - but the very purpose of that government is to protect the rights that were endowed to each person by thier Creator.

Zev Steinhardt

[TwoTrouts]

Thanks for clarifying the argument, Fear Itself. I believe Scalia is wrong in interjecting a religious figure as the basis for the law of this land. It was Jefferson, I think, who said something along the lines of (and I am paraphrasing here, I will look up the quote later): “This country shall be governed by the Law of Man and not the Law of God.”

The Constitution skims this issue rather than expressing it forthwith, much to Jefferson’s and Madison’s chagrin. The pertinent part is Article VI…
“This Constitution, and the Laws of the United States…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby,…”
“The Senators and Representatives… and judicial Officers…shall be bound by Oath or Affirmation, to support this Constitution; **but no religious Test shall ever be required…” **

This brings up another interesting event. When the President takes the oath of office, with one hand on the Bible while swearing to uphold the Constitution “so help me God”, he is commiting an unconstitutional act.

[Evil_Captor]

@Abbie Carmichael

What astorian said.

Me-tooing a cheap drive-by post in response to a well-stated OP? A new low for you, Abbie.

[John_Mace]

@BrainGlutton

Nevertheless, there is no mistaking their intent…

Apparently there is, since the SC has been arguing about this for what seems to be forever. Just because you found a book which agrees with your own personal views, doesn’t mean that is the only valid interpretation.

Scalia certainly does filter his “strict constrcutionism” thru his own religious sentiments, but let’s wait for the actual opinion to be issued. I think it’s jumping the gun by screaming “you’re not a strict constructionist” based on one statement made during oral arguments. And I believe it was Scalia who also said something along the lines of “the idea that US law is based on the 10 Commandments is absurd” during these same oral arguments. (I’m quoting that last bit from memory, as I heard it on the news yesterday. It might have been Anthony Kennedy, and I confused that with Antonin Scalia. If someone has a different memory or a cite, I’ll gladly stand corrected.)

[plnnr]

@TwoTrouts

This brings up another interesting event. When the President takes the oath of office, with one hand on the Bible while swearing to uphold the Constitution “so help me God”, he is commiting an unconstitutional act.

No, because the words “so help me God” are not contained in the Oath of Office as set forth in the Constitution. It is a phrase that has been tacked on.

[Fear_Itself]

@zev_steinhardt

IOW, it is true that (according to the DOI) that the government gets it’s rights to govern from the consent of the governed - but the very purpose of that government is to protect the rights that were endowed to each person by thier Creator.

I don’t see that those two positions are incompatible. Governments are created by men; men are created by God. It is fundamental to the concept of government by, of and for the people that government does not attempt to short circuit that chain of command and claim divine inspiration directly from God. Whatever authority is possessed by government is consecrated by the people alone, and any relationship between government and God flows through the people, at their discretion.

[David_Simmons]

@BrainGlutton

Justice Scalia is considered the SC’s leading proponent of “orginalism” – “the view that the meaning of a written constitution is (or should be) consistent with the meaning as it was originally understood by those who drafted and/or ratified the constitution.” (http://en.wikipedia.org/wiki/Antonin_Scalia; http://en.wikipedia.org/wiki/Originalism.) If he were a true originalist, a phrase like “government comes from – derives its authority from God” would never escape his lips.

The ideas of John Locke, who was cited (incorrectly I think) by Martin Hyde, played a part in the theory behind the US Constitution and the ideas expressed by Jefferson and the Continental Congress in the Declaration of Independence. Locke was arguing against the divine right of kings and that if you start of the beginning with a person as a lone individual surviving or not on his own abilities, the right to do as he damned well pleased is unalienable. I.e. there is no power than can separate a lone individual from such right. I use the masculine because I think Locke did and circumlocution to include women get’s awkward. Read “man” and all masculine references as referring minkind in general.

It was only when more than one person was involved that some sort of restraint became necessary. Ergo government is a social contract erected by people for their own purposes. Our constitution rests on the authority of the people who have the absolute right to change it at their pleasure and necessity.

One serious problem with using God is that there is no consensus as to God’s intent as testified to by the plethora of different sects within the various major, and I suppose minor, religions. Using God as the governmental standard would result in much of governmental effort going into fighting over God’s intent rather than the serious affair of conducting a nation’s business to the benefit of the people.

I do not see prohibition of posting the 10 Commandments by governmental officials at taxpayer expense on the people’s property that is held in common by all the people as an example of rule by an “elitist minority.” No one seeks to prevent anyone from buying a spot on a billboard and posting them in as large type size as local regulations permit for any such display. No one is prohibited from posting them in his or her own business or on the front of it in areas where such signboards are permitted, or posting them on their front lawn subject to general land-use regulations.

The hysterical, “the elitists are taking God out of government” babble is, I think, total nonsense. God was never intended to be in the US government but He was private matter for each individual to follow or not based on their own conscientious determination.

[zev_steinhardt]

@Fear Itself

I don’t see that those two positions are incompatible. Governments are created by men; men are created by God. It is fundamental to the concept of government by, of and for the people that government does not attempt to short circuit that chain of command and claim divine inspiration directly from God. Whatever authority is possessed by government is consecrated by the people alone, and any relationship between government and God flows through the people, at their discretion.

You’re correct in that they are not incompatible. However, IIUC, the view here is that the purpose of government is to secure those rights that are endowed to us by our Creator. A government that does not secure those rights, even with the consent of the governed, would be illegitimate, because it violates the basic premise and purpose of government. IIU you’re reading correctly, you would disagree with that. Your position (as I understand it) is that the will of the people is supreme and that if they want to en masse sell themselves into slavery (losing thier liberty), a government could legitimately do so.

Zev Steinhardt

[Fear_Itself]

@zev_steinhardt

However, IIUC, the view here is that the purpose of government is to secure those rights that are endowed to us by our Creator. A government that does not secure those rights, even with the consent of the governed, would be illegitimate, because it violates the basic premise and purpose of government. IIU you’re reading correctly, you would disagree with that.

No, I do not substantially disagree with that. You are correct, the purpose of government is to secure the freedoms possessed by all men simply by virtue of being alive, so a Creator is really unnecessary.

Your position (as I understand it) is that the will of the people is supreme and that if they want to en masse sell themselves into slavery (losing thier liberty), a government could legitimately do so.

I think I see where you are going with this. I do not think that you can extrapolate a divine source of all governmental authority just because we recognize the there are basic human liberties conferred by life itself, regardless of the origin of that life. To that end, the people cannot sell themselves into slavery if it compels those who disagree to submit also. Likewise, the government cannot compel the people to endorse the divine source of authority against their will. Freedom of religion also includes freedom from religion,

[I_Love_Me_Vol.I]

@John Mace

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.

But we DON’T put everything up for a vote here (thank Og). I don’t think this is so much an issue of rule by minority elites, as the rights of the minority not being stomped on by the majority.

It matters not a whit that a majority of Americans believe in God and/or the 10 Commandments. The fact is, the minority should be protected from having the Abrahamic God shoved down their throats; thus, the Establishment Clause.

I believe that it is unconstitutional to have the State paying for and/or making available presentations of a particular faith.

I also believe that unless SCOTUS bends to the will of the majority (unconstitutional-- Contitutional interpretation is NOT a popularity contest) or makes decisions largely based on the Justices’ own personal beliefs, all these 10 Commandments presentations on public property will be ruled unconstitutional.

OTOH, if a Constitutional Amendment is prepared and ratified that says that (for example) Jesus Christ is the official Deity of the USA and all must bow to His Holiness*, than this will be the law of the land and the Establishment Clause will most likely simultaneously be declared null and void. In this way, the will of the majority can affect the Constitution but they have to play by the rules.

*Ten years ago I would have said this doesn’t have a chance in hell of happening. These days, I’m not so sure. Sadly, I think a Christian theocracy would be welcomed by a majority of Americans.

[ElvisL1ves]

Who “ordained and established” the Constitution? It says right up front: We the People. *Not * God as interpreted by any human prophet. Deal with it, Tony, you old original intentionist, you.

[I_Love_Me_Vol.I]

@Fear Itself

… men are created by God.

Some Americans don’t believe this is true. That’s why it is unconstitutional to have this belief forced on the minority by the majority.

[BrainGlutton]

@Fear Itself

You are correct, the purpose of government is to secure the freedoms possessed by all men simply by virtue of being alive, so a Creator is really unnecessary.

Nitpick: Government has a lot of legitimate purposes other than “securing freedoms.” Publius (I forget which one) wrote, “If men were angels, no government would be necessary; if angels were to govern, neither external nor internal controls on government would be necessary.” He was wrong. A society of morally perfect individuals would still need a collective decision-making body for the management of public assets, planning for growth, building public infrastructure, and countless other things.

[Fear_Itself]

@I Love Me

Some Americans don’t believe this is true. That’s why it is unconstitutional to have this belief forced on the minority by the majority.

I concur. My statement was directed at those who do believe in God. My point was that, even if you do believe in God, there is no Constitutional support for the belief that the authority of government is derived from God.

[Martin_Hyde]

@David Simmons

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.

Then you have to read John Locke more extensively sometime to refresh your memory. Do remember that John Locke was a devout Puritan, and while he preached religious toleration his philosophies are certainly not completely “secular.”

Also of course we have the Declaration of Independence, which has no legal power but is a document that reflects very well the FF’s views on the situation and it certainly makes reference to a God.

The Founding Fathers and John Locke did not believe that religion should = government. But they did believe we have certain inalienable rights that were given to us by God. And that these rights extend vastly (even to complete freedom of religion) but they are still rooted in God.

This is the framework upon which we built a Constitution, not the framework we used to craft individual laws. And further more to be a threat to democracy Scalia must be operating on a Constitutional level (which he does, as SCOTUS Justice) which means trying to throw in offhand remakrs about interstate commerce codes or any other specific legislative actions isn’t really tangenital to the point.

The fact is it’s certainly not against the democratic underpinning of our constitution to believe rights come from God, and to think that religion has nothing to do with the shape of our constitution is either unwitting or deliberate ignorance.

[Maeglin]

@Martin Hyde

Then you have to read John Locke more extensively sometime to refresh your memory. Do remember that John Locke was a devout Puritan, and while he preached religious toleration his philosophies are certainly not completely “secular.”

You would best do the same. There is no point in name dropping if neither of you are actually going to make the effort to present the arguments.

Simply characterizing his philosophy as “not secular” provides no traction on this issue.

Turning to John Locke is very difficult under these circumstances. On one hand, he does derive civil rights from the putative social contract, not from any godhead. On the other hand, he does say this, in his Letter Concerning Toleration:

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. The taking away of God, though but even in thought, dissolves all; besides also, those that by their atheism undermine and destroy all religion, can have no pretence of religion whereupon to challenge the privilege of a toleration. As for other practical opinions, though not absolutely free from all error, if they do not tend to establish domination over others, or civil impunity to the Church in which they are taught, there can be no reason why they should not be tolerated.

Locke does not exactly flow to either side, and to suggest such is to misread him grossly.