Scalia and the Judeo-Christian Tradition

As Prof. Jack Balkin (Law, Yale) alludes in this post. Justice Scalia's dissent in the Ten Commandment cases that came down today, specifically in McCreary County v. ACLU, implies that Ten Commandments displays and government recognition of God descends from tradition. He interprets the Establishment Clause in light of how the early government functions (as opposed to Justice Stevens' reliance on the text itself).

Prof. Balkin states that

"Justice Scalia might respond that tradition going back to the very founding of our country secures the inclusion of Jews and Muslims, but not other religious minorities and not agnostics and atheists. If this is indeed his argument, I must beg to differ. The widespread notion of a "Judeo-Christian" heritage is very recent, a product of the twentieth century-- the idea of a Christian nation was far more common in the 19th century."

As Balkin readily points out, what was originally a Christian society has turned into, in Scalia's mind, a Judeo-Christian-Islam triad of monotheism. But there is no reason to include Jews or Christians in this mix except for the fact that George Washington penned a very famous letter to the Jewish community of Newport, Rhode Island in 1790. In the letter, Washington wrote that

"All possess alike liberty of conscience and the immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights."

Because of this, Jews are part of the Establishment Clause monotheism.

If this is indeed Scalia's thesis, he is far off, and I see nothing that prevents him from saying that non-Christians do not deserve the protections of the Establishment Clause. After all, Christians make up 76.5% of the American population. See here.

Scalia believes in a popular constitutionalism in this realm. He writes, "the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority." If that is the case, then the majority has no limit. The three-quarters of Americans who are Christians can decide that they do no like having non-denominational or interfaith Ten Commandments displays. Indeed, the Texas monument was the consensual product of a committee of leaders from Protestant, Catholic and Jewish groups. An idea of popular constitutionalism would allow the next group to cut out any groups that are unnecessary to their majority.

If all that includes Jews and Muslims in the "tent" is Washington's letter, there is not much protection. Scalia's arguments lead directly to a Christian nation. As he argued in the Oral Arguments for Texas case, Van Orden v. Perry, the Ten Commandments "[are] a symbol o fthe fact that government comes...from God. And that is...an appropriate symbol to be on State grounds."

To Scalia, the government can proclaim that its power comes from God and/or Jesus Christ, a statement that many Americans disagree with and find offensive. But most importantly, it is a statement that the Constitution censors the government from saying.

In a great irony, the Ten Commandments are highly important to Christian faiths. Much more so than to Jewish and Muslim groups. To the latter, the Ten Commandments are just more laws, not any more or less special. To the former, they are former foundational laws.