Balkin, Leiter, and Responsible Analysis

Well, my blood pressure this morning got more than just its usual caffeine jolt, since yesterday's 10 Commandments opinions gave the calm and responsible Profs. Balkin and Leiter a chance to bash Justice Scalia as a bigot once again. It's so easy to bash people when you get quote them selectively and hope nobody will bother to check the source.

For instance, Prof. Leiter characterizes yesterday's opinion thus: "Scalia to Atheists: Drop Dead!"--which overheats the already unjustifiably overheated rhetoric he links to over at Balkinization. Of course, it would be less sexy to quote Scalia accurately, and it would fail to show him to be a religious bigot or fanatic, so quotation in such matters, accurate quotation, just won't do for Prof. Leiter.

But let's move from Texas to the Yale Law school, where the noted Prof. Balkin gets all huffy about Scalia's mysteriously lumping together Judaism and Islam with Christianity in positing that the original meaning of the Establishment Clause permitted invocations of God consistent with monotheism in general but not invocations consistent only with Chrsitianity in particular. Prof. Balkin professes to be quite perplexed by this, and seems to suggest that Justice Scalia just gives us no help at all in understanding the problem. Well, perhaps the printers were clogged up at Yale, or they are saving paper and printing only every other page of opinions by the textualist Justices or something. Because surely if Prof. Balkin had read this argument, for instance, he would not pretend it did not exist:

Justice Stevens also appeals to the undoubted fact that some in the founding generation thought that the Religion Clauses of the First Amendment should have a narrower meaning, protecting only the Christian religion or perhaps only Protestantism. See Van Orden, ante, at 20—22. I am at a loss to see how this helps his case, except by providing a cloud of obfuscating smoke. (Since most thought the Clause permitted government invocation of monotheism, and some others thought it permitted government invocation of Christianity, he proposes that it be construed not to permit any government invocation of religion at all.) At any rate, those narrower views of the Establishment Clause were as clearly rejected as the more expansive ones. Washington’s First Thanksgiving Proclamation is merely an example. All of the actions of Washington and the First Congress upon which I have relied, virtually all Thanksgiving Proclamations throughout our history,5 and all the other examples of our Government’s favoring religion that I have cited, have invoked God, but not Jesus Christ.6 Rather than relying upon Justice Stevens’ assurance that “[t]he original understanding of the type of ‘religion’ that qualified for constitutional protection under the First amendment certainly did not include . . . followers of Judaism and Islam,” Van Orden, ante, at 22; see also ante, at 32—33, I would prefer to take the word of George Washington, who, in his famous Letter to the Hebrew Congregation of Newport, Rhode Island, wrote that,

“All possess alike liberty of conscience and 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.” 6 The Papers of George Washington, Presidential Series 285 (D. Twohig et al. eds. 1996).

The letter concluded, by the way, with an invocation of the one God:

“May the father of all mercies scatter light and not darkness in our paths, and make us all in our several vocations useful here, and in his own due time and way everlastingly happy.” Ibid.

There is nothing at all mysterious about Justice Scalia's position: it is clear from the historical record that the Framers simultaneously (1) rejected establishment of religion; (2) rejected official associations of the government with Christianity; and (3) embraced official expressions reflecting belief in a single God. Now, so far as I can see, Professor Balkin nowhere challenges the facts as adduced by Justice Scalia. What he does do is omit some of them. Then he tells us that Justice Scalia's opinion amounts to this:

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.

Now, I challenge anyone to read fairly the two paragraphs quoted by Balkin immediately prior for anything like support for that characterization of Scalia's position; you won't find it anywhere in the opinion, in fact. The "disregard" Scalia writes of is simply that it was clearly seen as permissible by the Framers to reflect belief rather than non-belief despite the lack of unanimity. That's not "drop dead" and it's not "you are insigificant." It's, "we can't reflect all views all the time, and so long as we don't establish a religion, we will not eschew all religious talk." But that accurate portrayal of Scalia's views would be far less exciting, and hardly worth bashing.

Nor will you find Prof. Balkin explaining how it is that when the government reflects in some official way a generally theistic worldview it either makes "second class" those citizens who disagree, or how it in any way amounts to an "establishment" of religion. Now perhaps it would be a better world if the sensitivities of non-believers were catered to by never making an official utterance that reflected that most people disagree with them. But that's not what was supposed to be at issue yesterday. What was supposed to be at issue was whether the First Amendment itself insists upon such a world.

If the two Professors have any arguments to that end I'm all ears. But to the extent that they have to mischaracterize and demonize what was written yesterday in the fashion seen in these posts, I think I shall be waiting in blessed silence for a long while before I hear such arguments.