Scalia: how can you cite history when you're ignorant of the relevant parts?

For someone who believes in strict constructionism, and constantly cites original intent Justice Scalia has a remarkable gift for being less-than-accurate about the history he quotes as his authority.

He was apprearing at Religious Freedom Day, and said this:

“It is a Constitution that morphs while you look at it like Plasticman,” contending that the framers of the Constitution did not intend for God to be stripped from the government.

Now, that first part is a legitimate criticism of other schools of Constitutional interpretation, except maybe the last part, which requires some real debate over framers intent rather than unsourced assertions. Both him and Cheif Quist have a bad habit of utterly ignoring the very views of the framers they claim to represent. And in this case, given the importance he places on history and the framers, his next statement is rather ironic:

“That is contrary to our whole tradition, to `in God we trust’ on the coins, to Thanksgiving proclamations, to (Congressional) chaplains, to tax exemption for places of worship, which has always existed in America.”

Now, even if that last statement only refers to “tax exemption for places of worship,” it still belies a rather sloppy grasp of history. Tax exemptions for houses of worship was, at first, a state issue anyway, and it wasn’t universal: it was piecemeal. Madison himself FOUGHT the idea of special tax exemptions (in his case, for land) in several states. And if that bolded statement refers to everything in that list, then he’s likewise re-writing history: from the much more recent “In God We Trust” to the variability (and non-legislative effect) of the religious content in the Thanksgiving proclamations. Several of the major founders fought the chaplains as well: so again, this is hardly the clear-cut case of the founders embracing these ideas as eternal and beloved traditions.

Like far too many, Scalia doesn’t seem to understand the basic rationale behind strict separation is not that religion is bad, but rather that the government is simply not supposed to have the POWER to have an opinion or say on religion, AS the government. It, in itself, isn’t given any authority to do what people can and should do for themselves perfectly well without the government’s “help.”

Bush Sr. didn’t get it either. He proudly notes that his first act “AS President” was to pray for the nation and his own good judgement. But if Bush wanted to pray as HIS first act after being inaugerated, he can pray all he wants. By claiming to pray AS President, he instead arrogantly claims authority to himself that no one vested in him and his office in the first place. The President is vested with the political will of the people, but not their with religious sentiment, because NO ONE EVER GAVE THEM UP to any government official to pray on their behalf. We can all pray, and join in groups of our own choosing, to pray for what we decide is best to pray for, and how. No one has the right to claim to lead or speak for us in religious matters.
Now, of course this is all merely symbolic, and maybe even just a nitpicky rant on an ambiguous choice of words. But it still illustrates a huge gap in people’s understanding of the rationale for Chruch/State separation.

You may not like the religious tradition of America, but nevertheless, it exists.

John Adams, 13 Oct 1789

And that was hardly a unique sentiment among the Founding Fathers. If you need more quotes, I’lll gladly whip them out for you.

You have every right to try to change what you percieve as religion getting too friendly with government, but it is silly to deny that America is a religious nation (as in, most Americans are religious), and has been since well before day one.

I see your John Adams and raise you Thomas Jefferson:

We could, of course, go on like this all day. But it would be pretty fucking stupid, don’t you think?

C’mon, Minty. Yes, there were misgivings from Jefferson and some others. However, these concerns don’t change the basic historical fact that a religious tradition has always existed in America. From which it follows that Scalia was not wrong in his historical statement, as the OP alleged.

BTW I agree with the OP that the specific examples given by Scalia have not always existed. However, if one reads Scalia’s statement (as I do) to mean that a religious tradition has always existed, then he is correct. There are other examples of religious tradition going back to George Washington

Their position while speaking as government officials seems pretty clear to me.

Protesilaus, do you have a link? It looks like Adams imay be addressing the Christian Religion, rather than religion in general.

I’ll just say that when government expresses religious opinions, favors one religion over another, or religion over nonreligion, it pretty obviously detracts from religious freedom, rather than increasing it.

I am a born-again Christian. But I’d rather the government not have IGWT on the money (or as a national motto) because this is a nation where people are supposedly equally free to trust God or not, as they see fit.

The Feds have no business telling us how ‘we’ respond to God, and it interferes with religious freedom when they do, even in this seemingly innocuous way: as y’all are aware, several states have lately used this as an excuse to slap this unquestionably religious message all over their public schools.

Ditto ‘under God’ in the Pledge of Allegiance, Thanksgiving proclamations, prayers before city council meetings, and the whole nine yards.

And why a house of worship should get a property tax break that secular groups aren’t eligible for, is completely beyond me. (Want to stop paying property taxes? Start your own religion in your home!* :wink:

  • [sub]IANAL, and this is a joke, not tax advice.[/sub]

Can’t we stop all this intellectual history crap and just get back to bashing that big jerk Scalia?

Sorry, december, but it’s never a good idea to quote revisionist historians:

bullshit

That’s not to say that the individual framers of the Constitution didn’t have religious leanings, of course.

The way I read it, the religion lay within the individuals, not in the government itself.

If you’re asking for a link to the treaty, then here you go.

blessedwolf, regardless of the quibbling over who deserves the most credit for making Thanksgiving “unique,” your cite does NOT dispute the fact that George Washington proclaimed a day of public prayer. This example helps prove that America does have a religious tradition.

And your cite does not prove that he DID. It made a claim which was false. My point is that any cite which makes historical claims that are blatantly false has little, if any credibility. The example that you quoted did not say “George Washington proclaimed **a day ** of public prayer,” but that he created Thanksgiving as “a day of public thanksgiving and prayer.” which is not true. At all. So it doesn’t prove anything.
It’s like saying that even though Al Gore didn’t create the Internet as he claimed, well…that means that he must’ve created HTML.

What the fuck other religion would Adams be referring to? Hinduism?

Apos, can I have some clarification? Is this a rant based on Scalia’s general opinion told to a gathering at Religious Freedom Day or is this his actual opinion written up in a ruling to a particular case? If the latter, what case and what was the decision?

How the hell does it matter if some or even all founding Fathers had religious leanings or if America is made up MOSTLY of religious people. Why on earth should it diminish or eradicate the value of the establishment clause?

—You may not like the religious tradition of America, but nevertheless, it exists.—

Religion flourishes in greater purity without than with the aid of government.
– James Madison, letter to Edward Livingston, July 10, 1822

You know what: screw ya and your nasty implication. I didn’t say I didn’t like the religious tradition of America. I like and respect the religious tradition of America, and the country wouldn’t be the same without it. It’s morons like Scalia that can’t tell the difference between respecting religion and usurping it’s natural right, that think that American religion can only be valuable if it’s given the precious kiss-off and blessings by the all-important government.

How can one claim to respect America’s religious tradition when they mislead other people about it (i.e. Rehnquist’s dissent in Wallace v. Jaffree which sin via ommision and outrageous distortion in its claims about Madison’s understanding of separation)? And how can one claim to respect religion if you think it requires the government for support and endorsement?

You want to talk Adams? Adams wasn’t actually a religious man himself: his statement is an expression of a rather detestable Deistic elitism: namely that to control the baser vices, the ignorant rabble need religion while intelligent men like himself could do without. Is that the sort of “respect” you were thinking of? Did you know that about Adams, or did you just go quote farming for something that sounded promising?

Many of the founding fathers were, in my opinion, unexcusable bigots when it came to their private estimations of some people’s religions (the most laudable exception being Washington, who as far as I know never spoke ill of any religion, and scrupulously avoided speaking of his own, if he even had one more than Deism). Thankfully, they could rise above this on occasion, especialy when defending the principles of religious liberty that are apparently beneath jurists like Scalia.

So, eat it:

“The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature; and if men are now sufficiently enlightened to disabuse themselves of artifice, imposture, hypocrisy, and superstition, they will consider this event as an era in their history. Although the detail of the formation of the American governments is at present little known or regarded either in Europe or in America, it may hereafter become an object of curiosity. It will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of Heaven, more than those at work upon ships or houses, or laboring in merchandise or agriculture; it will forever be acknowledged that these governments were contrived merely by the use of reason and the senses.”
– John Adams, “A Defence of the Constitutions of Government of the United States of America” (1787-88

“The difficulty of reconciling the Xn [Christian] mind to the absence of a religious tuition from a University established by law and at the common expense, is probably less with us than with you. The settled opinion here is that religion is essentially distinct from Civil Govt. and exempt from its cognizance; that a connection between them is injurous to both; that there are causes in the human breast, which insure the perpetuity of religion without the aid of law; that rival sects, with equal rights, exercise mutual censorships in favor of good morals; that if new sects arise with absurd opinions or overheated imaginations, the proper remedies lie in time, forbearance and example; that a legal establishment of religion without a toleration could not be thought of, and without a toleration, is no security for public quiet & harmony, but rather a source itself of discord & animosity; and finally that these opinions are support by experience, which has shewn that every relaxation of the alliance between Law & religion, from the partial example of Holland, to its consummation in Pennsylvania Delaware N.J., &c, has been found as safe in practice as it is sound in theory. Prior to the Revolution, the Episcopal Church was established by law in this State. On the Declaration of independence it was left with all other sects, to a self-support. And no doubt exists that there is much more of religion among us now than there ever was before the change; and particularly in the Sect which enjoyed the legal patronage. This proves rather more than, that the law is not necessary to the support of religion.”
– James Madison, letter to Edward Everett, March 19, 1823

I observe with particular pleasure the view you have taken of the immunity of religion from civil jurisdiction, in every case where it does not trespass on private rights or the public peace. This has always been a favorite principal with me; and it was not with my approbation that the deviation from it took place in congress, when they appointed chaplains, to be paid from the national treasury. It would have been a much better proof to their constituents of their pious feeling if the members had contributed for the purpose a pittance from their own pockets. As the precedent is not likely to be rescinded, the best that can now be done maybe to apply to the constitution the maxim of the law, de minimis non curant.
– James Madison, outvoted in a move to establish the office of Congressional Chaplain, Madison’s Writings, Vol. 3, p. 274

Besides the danger of a direct mixture of religion and civil government, there is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations.
The establishment of the chaplainship in Congress is a palpable violation of equal rights as well as of Constitutional principles.
The danger of silent accumulations and encroachments by ecclesiastical bodies has not sufficiently engaged attention in the U.S.
– James Madison, from the “Detached Memoranda,” Elizabeth Fleet, “Madison’s Detached Memoranda.” William and Mary Quarterly (1946): 554-62

Is the appointment of Chaplains to the two Houses of Congress consistent with the Constitution, and with the pure principle of religious freedom? In strictness the answer on both points must be in the negative. The Constitution of the U. S. forbids everything like an establishment of a national religion. The law appointing Chaplains establishes a religious worship for the national representatives, to be performed by Ministers of religion, elected by a majority of them, and these are to be paid out of the national taxes. Does this not involve the principle of a national establishment…?
– James Madison, “Essay on Monopolies”

—Is this a rant based on Scalia’s general opinion told to a gathering at Religious Freedom Day or is this his actual opinion written up in a ruling to a particular case? If the latter, what case and what was the decision?—

Both.

Good starts:
His dissent in Lee v. Weisman
His separate dissent in Lamb’s Chapel v. Center Moriches Union

I don’t necessarily always disagree with his findings (for instance, the use of public school grounds by a religious group when it is open for all groups to use after school for private gatherings is, IMHO, constitutionally kosher), but his reasoning often stinks.

Let me get this straight. Scalia says there exists a religous tradition that has always existed in America, and gives a couple of examples. And that observation makes him historically ignorant? Please. Spare me.

This is not a new observation. Alexis de Tocqueville devotes a considerable amount of Democracy in America to the unique role of religion in America, obverving how religion is wound up in American civic life while simultaneously being separated from governance itself. And that was what, 1840?

That self-contradicting view of religion is one of the things that makes the US pretty special, IMHO.

If you’re bothered by the reasoning in a particular case, fine, but I can hardly see anything objectionable or ignorant in the comments cited by the OP.

—Scalia says there exists a religous tradition that has always existed in America, and gives a couple of examples. And that observation makes him historically ignorant? Please. Spare me.—

Spare you any thoughtful association with the actual topic at hand?

At issue here is not the religious tradition of America, but that of whether the government should specially accomodate religion by traping itself in official piety. At issue ARE the relevance and accuracy Scalia’s examples, as well as his and the Cheif Justice’s uninformed-by-history delusions about the views of founders like Madison.

It’s nothing but cynical to fight to get some accomodation or special endorsement of religion into law, and then smugly cite it as a “tradition” by which you then justify further abuses… when it was, if anything, a violation of tradition (against having public instruction in the first place, such daily led pledges in the first place, and then again of adding a religious affirmation).

The whole POINT of separation is not to hurt religion, but, as the founders reasoned, allow it to thrive. The whole rationale is not that the religion is nasty and a good government avoids it, but rather that the authority to have religious opinions and choose ones own practice were never ceded to the government by the people in the first place.

We interrupt the byplay for a few facts:

I’m afraid your response is no more accurate than december’s “revisionism.” In fact, Washinton, Adams, and Madison each issued two recorded proclamations, apiece–all of them thanking God. (Jefferson was asked to and refused on principle.) While it is somewhat of an overstatement to claim that Washington’s first proclamation “began a tradition,” it is certainly disingenuous to claim that his act was not part of the culture of the time (otherwise, Jefferson would have had no petition to deny)–and it is false to claim that it was a “one-time-only day.” (Sorry, Cecil.)
Presidential Thanksgiving Proclamations