This Scalia comment has been weighing on my mind heavily. It's really troubling that a Supreme Court Justice (let alone one that's been held up by Bush as the model after which he would select any future justices) would so cavalierly suggest tearing down one of the fundamental tenets expressed rather clearly in the Bill of Rights.
And yes, the phrase “separation of Church and State” doesn't appear in that exact wording in the Constitution. I'll grant that. But I've been trying to find some sort of evidence that the Founding Fathers wanted anything besides that when the First Amendment was written.
The phrase itself comes from a letter Thomas Jefferson wrote to the Danbury Baptists in 1802 (when TJ was president). The paragraph in question (taken from The Life and Selected Writings of Thomas Jefferson, Modern Library, 1998) goes a little something like this:
Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, 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 and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
Two things to glean from this: TJ felt that Church and State should be separate institutions, and that religion should be a private matter between whoever or whatever one regarded as their creator and themselves. Taken in concert, it seems clear that TJ felt religion was outside of the realm of things discussed in civic discourse; it should not be part of politics.
Since reading that letter and some other thoughts Jefferson had on religion (none having more to say about this Separation), I went looking for other Founders' thoughts on the matter. My two sources thus far have been The Federalist Papers (Penguin Books, 1987) and The Anti-Federalist Papers and the Constitutional Convention Debates (Signet Classic, 2003).
So far in my reading, the only Federalist Paper that has any mention of the separation is No. 69, which says in comparing a national executive to the sovereign of Great Britain, “[the President of the United States] has no particle of spiritual jurisdiction,” thus implying that it is a Good Thing that the presidential business remain outside the realm of religion.
In AFP, I found amendments to the Constitution proposed by the Virginia delegation on June 27, 1788 (this was during the struggle to get the Constitution in its original form adopted, prior to the addition of the Bill of Rights). Their twentieth amendment reads thus: “That religion, or the duty which we owe our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.” Second, take the dissent written by 21 members of the Pennsylvania delegation who voted against ratifying the Constitution in that state and their proposed amendments to it, this being their first: “The right of conscience shall be held inviolable; and neither the legislative, executive nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the preservation of liberty in matters of religion.”
Taken in concert, these two suggest that there was a desire to leave religion out of the purview of the federal government. What's more remarkable, however, is how little the men on both sides of the argument talked about religion at all. When structuring the new government, it seemed like there were more pressing things to talk about, like separation of powers, the method of electing the members of Congress, the term of the presidency, standing armies and things of the like. Neither faction gave more than passing mention of the idea of religion, and it was never to advocate its presence in the federal government.
Time after time, regardless of which side of the Constitution debate one was on, the impulse of the Founders was to maintain the religious life of the nation outside of the civic and political life of it. The less exposure religion had in political discourse, the more favorable that would be. The conclusion is this: in defining your positions to or against a certain issue, you must leave your own religion out of it. You (you being the public servant in whatever federal capacity you are in, be it judge, representative, president, what-have-you) have the right to hold any position you wish, but in the advocacy of that position you must present it in some fashion that utilizes some other reason behind it other than your personal faith. (The religious views of anyone running for an office, continuing in this vein, should never be the topic of discussion. It is, fundamentally, a violation of their first Amendment Rights. A candidate should never be asked a question about them, nor should they ever volunteer information about it.)
That takes care of Scalia. He is just flat out wrong about this. He seeks to fundamentally alter the very way in which this country operates, and that simply cannot be allowed.
The problem that arises then is that of the elected official. He could claim that his viewpoint is reflective of his constituency. If he were a good public servant, he would remind his constituency that if their views are influenced by religious conviction alone, they are doing a disservice in their duty as a citizen. But I don't know of any elected official ever reprimanding the people who voted him into office for the way in which they arrived at their opinions, so I don't put a whole lot of faith in that starting now. So the elected official goes forward promoting a view whose origin is, ultimately, dictat of the church (see: abortion, stem cell research, Creationism in public schools, and on and on).
With public opinion swayed in one direction, and the people they elect thus swayed, the responsibility to maintain the integrity of the government as a whole falls to the President. Bush has an obligation to consider the views of the minority and include them in his attempts at public policy. For him to fail to do so endangers that minority. Even if he had received a mandate (and I don't consider a 51%-49% victory a mandate under even the most strained definition of the word) he would still have a responsibility under our system of government (perhaps even more so) to stand up for the rights of that minority. This doesn't come from me. This comes from James Madison, the father of the Constitution currently under assail from Scalia. A week into the Constitutional Convention in 1787, Madison said,
In all cases where a majority are united by a common interest or passion, the rights of the minority are in danger. What motives are to restrain them? A prudent regard to the maxim that honesty is the best policy is found by experience to be as little regarded by bodies of men as individuals. Respect for character is always diminished in proportion to the number among whom the blame or praise is to be divided. Conscience, the only remaining tie, is known to be inadequate in individuals: In large numbers, little is to be expected from it. Besides, Religion itself may become a motive to persecution and oppression – These observations are verified by the histories of every Country ancient and modern. ...Why was America so justly apprehensive of Parliamentary injustice? Because Great Britain had a separate interest real or supposed, and if her authority had been admitted, could have pursued that interest at our expense. We have seen the mere distinction of colour made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man. What has been the source of those unjust laws complained of among ourselves? Has it not been the real or supposed interest if the major number? ... The lesson we are to draw from the whole is that where a majority are united by a common sentiment, and have an opportunity, the rights of the minor party become insecure. In a republican government the Majority if united have always an opportunity. (Emphasis added.)
This is precisely where we find ourselves today. The 49% of America that voted against George Bush now find themselves in a precarious position, ruled by a majority that is ruled in turn by the passions and machinations of a religiously-minded political organization.
Here's where I throw my political haymaker. James Madison said in Federalist 63,
[The Senate] may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in free governments, ultimately prevail over the views of its rulers, so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind?
Lets say for instance that, in the wake of Ron Artest, there came a public outpouring of support for banning professional sports, and in 2006 a wave of anti-sports Representatives got elected. Madison's saying that the Senate should act as an intermediary between the public passion (what Jefferson called “civium ardor prava jubentium” - the wayward zeal of the ruling citizens, in a letter to Madison in 1789) and the public welfare. However, there's a kink, and not one of the Founders' design. In 1913, the 17th Amendment was passed. The 17th Amendment allows for the popular election of Senators. Previous to 1913, Senators were appointed by their State legislatures. It was framed this way to allow for that buffering force that Madison was talking about in Federalist 63.
Right now I'm marveling at the foresight Madison had. He foresaw of a Majority – even one ruled by Religion – co-opting the government for their own ends, the concerns of the Minority be damned. This is the situation we find ourselves in, with a Justice of the Supreme Court saying that the Separation of Church and State should be abandoned, and with the electorate granting office to a wave of religious fundamentalists. The Senate should be there to act as a moderating force to the whole lot of them, but for some reason that buffer was disabled nearly a century ago. I need to find out why.
But right now it seems like the 17th Amendment is what some might call A Really Bad Idea. Because now what we're facing is a fundamentalist in the White House, at least one fundamentalist on the Supreme Court already (remember, Bush called him a model after which other future Justices should be measured), a whole gaggle of them in the House under the leadership of Tom DeLay, and even some in the Senate (Santorum, Frist just to name two). They control the entire apparatus of government now, and there's nothing to prevent them from inflicting their will on the whole of America.
Whatever the intent was behind the 17th Amendment, whatever made it seem like a Good Idea at the time, its function has broken the very structure of government and the intent of the Framers.
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