Scalia, Madison and the Religious RIght [Addendum]

U.S. Supreme Court Justice Antonin Scalia told Hamodia: The Daily Newspaper of Torah Jewry in an interview:

When I first joined the Court, I needed to spend a lot of time researching what the original understanding was, since the lawyers would just quote the last Supreme Court case. There are now two for sure, thoroughgoing originalists on the Court, Clarence Thomas and myself. And I think the Court as a whole has become more receptive to originalism. I think - or perhaps I just hope - that American jurisprudence is moving away from an evolving Constitution to an enduring Constitution.

His concept of "originalism" is historically selective. His explanation elevates the transcient instructions of majorities of Congress to George Washington above the works of the framers, in particular James Madison. Through that slight of historic hand, Scalia rationalizes an essentially theocratic view of the Establishment Clause:

Whatever the Establishment Clause means, it certainly does not mean that government cannot accommodate religion, and indeed favor religion. My court has a series of opinions that say that the Constitution requires neutrality on the part of the government, not just between denominations, not just between Protestants, Jews and Catholics, but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

Scalia has abandoned the long abiding principle that the U.S. Constitution protects the right of citizens to pursue their own beliefs, mocking it with the assertion that such ideas are European in origin. In the course of his rationalization, he drifts off into a barely coherent story about how "'G-d protects little children, drunkards and the United States of America.' I think it may be true. And the reason may be because we honor Him as a nation. We invoke Him in our country, our Presidents invoke Him, my court open its sessions with “G-d save the United States.” Those things are not insignificant."

Dr. Bruce Prescott looks directly at the narrow, restrictive nature of Scalia's view:

Note how Protestants, Jews and Catholics are named and personalized in Scalia's comments while the existence of non-religious persons can only be inferred from impersonal language. His comments appear to presume that non-religious persons have no rights of conscience.

Scalia's historically selective approach tailors itself to the needs of the Religious Right only by carefully ignoring Madison's Memorial and Remonstrance.

Madison was, as Prescott observes, a framer of both the Constition and the Bill of Rights. Ignoring his Memorial and Remonstrance is a betrayal of legal scholarship and history to present-day partisanship.

In it Madison wrote [and Prescott quotes]:

If "all men are by nature equally free and independent," all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us.

We knew the nation was in uncertain hands when the Supreme Court made an unelected George W. Bush president. Scalia makes it clear that under his leadership, basic freedoms are imperiled.

Addendum:

Twitter reminds us that Justice Scalia once famously cited Agent Jack Bauer -- yes, the fictitious 24 character -- to explain his belief that torture is necessary in time of crisis. Thanks also to John Hummel.