Supreme Court Justice Antonin Scalia paid his second visit to Ann Arbor in three months last week, this time speaking at a privately-sponsored event focusing on the court’s interpretation of religious issues. Scalia is one of the court’s most conservative members and stands out for his supposedly unwavering adherence to originalism — the philosophy of giving “the Constitution the meaning it had when it was adopted” as a way of reconciling the differences between personal beliefs and judicial objectivity. This view diverges sharply with the more common perception of the Constitution as a “living document” that changes to reflect the times. In his characteristically direct way, he expressed his belief that a religiously neutral government would not reflect history and tradition. Upholding the intent of the framers can be a noble principle, provided one’s interpretations avoid being colored by personal beliefs and expectations. With Justice Scalia, it is difficult to reconcile the discrepancies between historical evidence and his own interpretations of what constitutes the framers’ intent.
A devout Catholic, Scalia cites the presence of religion in nearly every aspect of government, and argues that the framers would not have wanted religion omitted from the public sphere. However, there is no reference to God in the main text of the Constitution, and the incorporation of God into the public realm came long after its ratification. “In God we trust” was printed on currency in 1864, and the words “under God” were added to the Pledge of Allegiance in 1954 at the height of the Cold War. Looking back to the late 18th century, the revolutionary principles guiding the writing of the Constitution were based on the ideas of men like John Locke and Thomas Paine, thinkers who strongly promoted secularism in government. It was Thomas Jefferson who coined the phrase “separation of church and state.” While diverse in their religious beliefs and backgrounds, they all agreed on the importance of a clear separation between church and state.
Regardless of the framers’ visions, it is difficult, if not impossible, to apply the desires of the nation’s founders to today’s world without making some modifications. While Scalia is eager to refer most civil cases back to the states and has stated that it is generally bad for democracy when the Court rules against public opinion, even he acknowledges that there are times when the Court must engage in judicial activism — Brown vs. Board of Education being a fairly apparent example. Such exceptions put another hole in Scalia’s adherence to originalism.
Scalia’s opinion is especially pertinent given the court’s upcoming docket, which will include two cases concerning the display of the Ten Commandments in government facilities. With President Bush’s support of faith-based initiatives and the recent November election results indicating that many Americans can tolerate religion’s role in politics, it is likely that the separation of church and state will fall under fire in the coming years. There is nothing wrong with Scalia’s strong Roman Catholic background, and his dedication to the principle of objectivity through originalism is admirable. It is disconcerting, however, when the line between the interpretation of the Constitution and the interpretation of personal beliefs begins to blur.