I'd like to paint a picture for you.
We're back in the Clinton administration, but Republicans control
one house of Congress. Partisan sniping is rife; Clinton's people
complain intensely about the intransigence of Republican congressional
In the middle of this, imagine that a well-known, stridently
liberal Supreme Court justice gives a speech saying that democratic
values --- most clearly represented in America at the federal level by
Congress --- are actually a corrupting influence on society. (You'll
have to imagine a well-known, stridently liberal Supreme Court justice,
but work with me here).
I'd like you to think about what, say, Newt Gingrich would have had
to say about that. William Kristol. Bill O'Reilly. Rush Limbaugh.
Imagine the recriminations. The furor.
Got all that?
Now feast your eyes on conservative Justice Antonin Scalia's own deep
qualms about the corrupting influence of democracy --- specifically, that democracy leads
people to the dangerous belief that government derives its just powers
not from divine authority, but some fuzzier notion like, say, the
consent of the governed; that the government is supposed to represent
the will of the people, rather than "the hand of almighty god":
- Few doubted the morality of the death penalty in the
age that believed in the divine right of kings, or even in earlier
times. St. Paul had this to say. ... "Let every soul," he
says, "be subject unto the higher powers, for there is no power but of
God. The powers that be are ordained of God ... Whosoever, therefore,
resisteth the power resisteth the ordinance of God, and they that
resist shall receive to themselves damnation, for rulers are not a
terror to good works, but to the evil. Wherefore, ye must needs be subject not only for wrath, but also for conscience sake."
This is not the Old Testament, I emphasize, but St. Paul. One can understand his words as referring only to lawfully constituted authority or even only to lawfully constituted authority that rules justly, but the core of his message is that government, however you want to limit that concept, derives its moral authority from God. It is the minister of God with powers to revenge, to execute wrath, including even wrath by the sword, which is unmistakably a reference to the death penalty.
Paul, of course, did not believe that the individual
possessed any such powers. Indeed, only a few lines before the passage
I just read, he said, "Dearly beloved, avenge not yourselves, but
rather give place unto wrath, for it is written vengeance is mine,
saith the Lord." And in this world, in Paul's world, the Lord repaid,
did justice through his minister, the state.
These passages from Romans represent, I think, the consensus of
Western thought until quite recent times --- not just of Christian or
religious thought, but of secular thought regarding the powers of the
state. That consensus has been upset ... by the emergence
of democracy. It is easy to see the hand of almighty God behind rulers
whose forebears, deep in the mists of history, were mythically
anointed by God or who at least obtained their thrones in awful and
unpredictable battle whose outcome was determined by the Lord of
Hosts; that is, the Lord of Armies. It is much more difficult to see
the hand of God or of any higher moral authority behind the fools and
rogues --- as the losers would have it --- whom we ourselves elect to do
our own will. How can their power to avenge, to vindicate the public
order be any greater than our own?
And, lest anyone think these are mere philosophical musings, he
issues a call to "people of faith" to correct the error:
- It seems to me that the reaction of people of faith to
this tendency of democracy to obscure the divine authority behind
government should be not resignation to it but resolution to combat it
as effectively as possible, and a principal way of combating it, in my
view, is constant public reminder that --- in the words of one of the
Supreme Court's religion cases in the days when we understood the
religion clauses better than I think we now do --- "we are a religious
people whose institutions presuppose a supreme being."
So, the guy who put Dubya in the oval office now seems to believe
that his authority derives ultimately not from the Constitution, but
from the Bible. This is certainly an unusual sentiment for a
Supreme Court justice to express.
But, oddly, that's not the most remarkable part of this speech.
Scalia was speaking at a forum on "Religion, Politics, and the Death
Penalty". As you may have observed, he's for it --- which puts him in
an uncomfortable position, since he's a Catholic, and (as he
acknowledges) the pope has come out against it. And so he smugly
notes that no pope has yet claimed to speak ex cathedra (with
infallible, direct divine authority) on this particular issue, and
so casts aside the church's moral authority, because he just knows
- I find it ironic that the church's new, albeit
non-binding, position on the death penalty ... is said to rest upon,
of all things, prudential consideration. Is it prudent when one is not
certain enough about the point to proclaim it as an article of faith
--- and with good reason given the long and consistent Christian
tradition to the contrary? Is it prudent to effectively urge the
retirement of Catholics from public life in a country where the
federal government and 38 of the states, comprising about 85 percent
of the population, believe the death penalty is sometimes just and
appropriate? Is it prudent to imperil acceptance of the church's hard
but traditional teaching on birth control and abortion, teachings that
are ex cathedra --- a distinction that the average Catholic layman is
unlikely to grasp --- by packaging them under the wrapper, "respect
for life," with another doctrine that everyone knows does not
represent the traditional Christian view? Perhaps, one is invited to
conclude, they are all three made up.
Earlier on, Scalia argued, in effect, for the divine right of
governments, if not kings. And as a believing Catholic, he certainly
believes in the divine authority of the church. Yet when the church
adopts a position not to his liking, he feels free to reject and
And whence Scalia's authority to dictate how the hierarchy of the
church perform its divinely appointed offices (as a devout Catholic
must believe they are)? He may not be arrogant enough to consider
himself god's representative, but at the very least, he seems to
believe that he is more Catholic than the pope.
(Further thoughts: via Avedon Carol,
from Sean Wilentz on Scalia's views of the competing claims of
government and faith, which are even goofier than I made them
out to be. And the goofiness doesn't end with the points raised by
Wilentz; while regarding government (at least with him in charge) as
"the hand of God", he also acknowledges that if a government
acts against faith strongly enough, that could justify revolutions.
But he scoffs at civil disobedience --- even though the Catholic
hierarchy in this country has lent considerable aid and comfort to anti-abortion
civil disobedience. But let's not scoff too much --- the logic here
hangs together at least as well as that unsigned per curiam
in Bush v. Gore...)
(And yet more: Brad DeLong observes,
among other things, that the government praised by St. Paul
in Romans is the same government that Gibbon was writing about
in the Decline and Fall of the Roman Empire...)