Last week's oral arguments at the U.S. Supreme Court over the constitutionality of Ten Commandments displays on public property offered an embarrassment of riches for students of the court and of the culture wars in general. Among other revelations, we discovered that Justice David H. Souter uses the term "Roman" as a synonym for Roman Catholic—a quaint (and to some Catholics insulting) locution favored by high-church Episcopalians of past generations. But perhaps the biggest surprise, in more ways than one, was Justice Anton Scalia's insistence that most of the proffered "secular" rationales for Ten Commandments displays were absurd.
When Texas Attorney General Greg Abbott defended a display of the Decalogue on the grounds of the state capitol arguing that it was, unlike a crucifix, a "historically recognized symbol of law," Scalia protested, "It's not a secular message. I mean, if you're watering it down to say that the only reason it's OK is it sends nothing but a secular message, I can't agree with you. I think the message it sends is that law is—and our institutions come from God. And if you don't think it conveys that message, I just think you're kidding yourself."
As for the state of Kentucky's argument that displays of the Decalogue in two county
courthouses should be upheld because they were (belatedly) grouped with the
Declaration of Independence and other secular texts as a tribute to the foundations of American law, Scalia again cut to the chase: "I don't think they're really saying that the particular commandments of the Ten Commandments are the basis of the Declaration of Independence. That's idiotic. What the commandments stand for is the direction of human affairs by God."
And national commentators are incensed at Scalia's even bolder statement that the commandments are "a symbol of the fact that government derives its authority from God," which strikes many of them as a dangerous betrayal of the most basic notion that in this country, at least, government derives its authority from its citizens.
Granting the caveat that the justices' questions at oral arguments can be exploratory, playful, or irrelevant to the disposition of the case, Scalia's gloss on the reason for the Ten Commandments displays is surprising from several standpoints. And it isn't just that he played right into the hands of the separationist David Souter—who called the supposed secular purposes of the Kentucky displays "litigation dressing."
More interesting to jurisprudence junkies, Scalia seemed to be slighting two basic tenets of his approach to judging: his "textualist" practice of looking only at the plain language of official enactments (if a county says it's posting the Ten Commandments because the commandments and the Declaration of Independence both "played a significant role in the foundation of our system of law and government," why not take that at face value?); and his usual preference for a "positivist" rather than a natural-law approach to constitutional interpretation.
It's Clarence Thomas, not Scalia, who has been accused—as early as Thomas' confirmation hearings in 1991—of espousing an approach to constitutional interpretation that looks far beyond the text and history of constitutional language to what one advocate of natural-law jurisprudence calls "the document that gave birth to our country: the Declaration of Independence."
In suggesting that Ten Commandments displays are defensible because they reflect the God-given nature of American law, Scalia reminded me of a brief submitted by the Christian Legal Society in the last great culture-war case, atheist Michael Newdow's attempt to have the court strike down the recitation in public school classrooms of the Pledge of Allegiance to "one nation, under God." In its brief, the CLS argued that "considered in its context, the phrase 'under God' in the Pledge of Allegiance represents not an endorsement of monotheism, but rather a proposition from the Declaration of Independence that is both theological and political, namely, that all individuals are endowed by their Creator with certain inalienable rights."
Unlike the solicitor general's brief in the pledge case, the CLS brief did not treat the theological provenance of the Declaration as a merely historical matter, urging that schoolchildren saying "under God" are simply channeling the framers' beliefs. (A CLS lawyer told me at the time that some Christians might find the SG's arguments too "nuanced.") Rather, at least according to the CLS, the words "under God" are essential to an understanding of the rights those kids enjoy now. References and monuments to God are not merely secular or historical; they are the fundamental building blocks of natural law.
Does Scalia believe that? One can read his comments from the bench about God-given law—which, to be fair, he attributed to the sponsors of the Ten Commandments display—as a reflection not of his jurisprudence but of his religious values. (Hey, it's only an oral argument.) H. Jefferson Powell, a professor of law and divinity at Duke University and a guru of mine on both subjects, describes Scalia in general as a "hard positivist" whose view is that "law is simply whatever the sovereign has ordained, with a little waffle room for tradition." Powell notes that this posture means Scalia, whatever his religious objections to abortion, "would be obliged to uphold an abortion-on-demand law against a pro-life challenge."
Interestingly enough, abortion is one area in which natural-law conservatives think their approach to judging would give them some purchase. If one subscribes to the view that the Declaration of Independence, with its attribution of political rights to a Creator, is a controlling legal precedent, one consequence (if one assumes that fetuses are persons, a big if) might be the judicial evaluation of pro-choice legislation. If that seems outrageous, natural-law types would argue, then so was the Supreme Court's 1967 ruling outlawing laws against interracial marriage, a ruling they say cannot be justified on positivist grounds. They have a point—but that point may just be that liberals and conservatives have a weakness for results-driven jurisprudence.
Is Scalia susceptible to that temptation where the Ten Commandments are concerned? That might be one way to interpret his aggressive unmasking of the "secular" rationale for displaying the commandments and his repeated references during oral arguments to the notion that laws come from God. Perhaps on this one issue he was offering a judicially significant nod to the natural-law lobby. Or maybe he was just venting the religious views that, however regretfully, he can't allow into the positivist cathedral of his legal method.