Antonin Scalia Would Really Hate the Secular Guy Who Framed the Constitution

If James Madison were alive today saying the things he said 200 years ago, Antonin Scalia would denounce him as a secular extremist.
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If James Madison were alive today saying the things he said 200 years ago, Antonin Scalia would denounce him as a secular extremist.
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This week, Supreme Court Justice Antonin Scalia said the idea that "government cannot favor religion over non-religion” is woefully misguided in what was the latest instance of the fervently religious justice projecting his personal beliefs onto the document he pretends to apply so impartially to the nation's laws. Then again, what can we expect from someone who thinks that the devil is an actual person and that nonbelief in god "favors the devil's desires"?

Speaking to a gathering of 400 people at Colorado Christian University, Scalia played a few of the hits that have made him a legal rockstar on the Religious Right for the last 30 years, including these classic tracks:

“I think the main fight is to dissuade Americans from what the secularists are trying to persuade them to be true: that the separation of church and state means that the government cannot favor religion over non-religion...

“We do [God] honor in our pledge of allegiance, in all our public ceremonies,” Justice Scalia said. “There’s nothing wrong with that. It is in the best of American traditions, and don’t let anybody tell you otherwise. I think we have to fight that tendency of the secularists to impose it on all of us through the Constitution...

“[The Supreme Court's] latest take on the subject, which is quite different from previous takes, is that the state must be neutral, not only between religions, but between religion and nonreligion,” Justice Scalia said. “That’s just a lie. Where do you get the notion that this is all unconstitutional? You can only believe that if you believe in a morphing Constitution.”

Scalia states his convictions with such matter-of-fact assuredness that it's easy to forget that he's completely out of his mind on this issue. In his statements above, Scalia is espousing a controversial interpretation of the Constitution known as strict Scalia-ism. According to this view, the Constitution just so happens to dovetail nicely with the personal religious beliefs of Antonin Scalia. In understanding the Constitution in such a way, this allows the associate justice to ignore the very clear language and intentions of the Constitution and those who framed it -- especially James Madison.

Madison was the chief architect of the Constitution, which mentions religion once -- to prohibit religious tests for public office. The Bill of Rights, which Madison also drafted, addresses religion in the first line of the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..."

Despite much debate about whether the Establishment Clause simply prohibits the establishment of a national religion, or if it calls for a "wall of separation" between church and state as Thomas Jefferson said it does, the writings of Madison himself are quite clear. Not only did Madison advocate against commingling government and religion, he did so in a way that his views would be considered secular to the extreme today.

Before letting Madison's views speak for themselves, consider this 2009 statement from Scalia in an Orthodox Jewish newspaper:

“The court itself has contradicted that principle [of religious neutrality] a number of times, including the case approving tax exemptions for houses of worship and cases approving paid chaplains in state and federal legislatures. More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.”

When Scalia says "moving back towards what the American Constitution provided," he actually means moving away from what it provided. Consider Madison's view on tax exemptions for houses of worship:

"Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history." [Madison then adds a note speaking of himself in the third person referring to his tenure as president.] "See the cases in which negatives [meaning vetoes] were put by [James Madison] on two bills passd by Congs and his signature withheld from another. See also attempt in Kentucky for example, where it was proposed to exempt Houses of Worship from taxes."

The wording in this detached memorandum indicates that Madison did not in fact believe that houses of worship should be exempt from taxes -- an opinion which puts him squarely at odds not only with Scalia, but decades of well-established case law in this area.

Regarding those chaplains Scalia mentioned, Madison was even more forthright:

"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 not this involve the principle of a national establishment, applicable to a provision for a religious worship for the Constituent as well as of the representative Body, approved by the majority, and conducted by Ministers of religion paid by the entire nation."

Not only that, but Madison even opposed chaplains for U.S. servicemembers, which flies directly in the face of established practice today:

"Better also to disarm in the same way, the precedent of Chaplainships for the army and navy, than erect them into a political authority in matters of religion. The object of this establishment is seducing; the motive to it is laudable. But is it not safer to adhere to a right pinciple, and trust to its consequences, than confide in the reasoning however specious in favor of a wrong one[?]"

To justify his beliefs that the Framers intended anything but a clear separation between religion and state, Scalia is forever relying on the vague allusions many of them made to a god at one point or another. Take Jefferson's oft-cited letter to the Danbury Baptists of Connecticut in which he wrote, "I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State."

The understanding that Jefferson -- a deist who at most believed in an impersonal creator of the universe -- had of the Constitution seems clear enough. But for Scalia, any potential cognitive dissonance on his part is easily quelled because in Virginia's Statute on Religious Freedom, Jefferson mentions god in a very superficial way that's not at all relevant to the main principle of the statute. Weak.

Getting back to Madison, the fourth president's biggest hammer-blow to Scalia's grossly wrongheaded view of the Constitution came in a letter to Edward Livingston three years after his presidency. It's worth quoting at length:

"Notwithstanding the general progress made within the two last centuries in favour of this branch of liberty, and the full establishment of it in some parts of our country, there remains in others a strong bias towards the old error, that without some sort of alliance or coalition between Government and Religion neither can be duly supported. Such, indeed, is the tendency to such a coalition, and such its corrupting influence on both the parties, that the danger cannot be too carefully guarded against. And in a Government of opinion like ours, the only effectual guard must be found in the soundness and stability of the general opinion on the subject. Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together."

Unfortunately, judicial sophists like Antonin Scalia are hellbent on proving the contrary while doing so under the guise that it's exactly what the Constitution calls for. While Scalia can't be stopped from interpreting the Constitution as the religious fanatic that he is, we can certainly call bullshit when he attempts to say that it's what the Constitution intended.