Scalia and Self-Government

Remember civics and history class, where we learned about our constitution and our government, and how America is about democracy and “the people” and self-government? The fundamental concept underlying our country is that we are self-governed.

America was the first country with true self government. Until then the underlying concept of western government was that government’s powers existed because of God’s authority. This was the “divine right of kings” — you did what you were told because the king ruled with authority granted by God. According to St. Paul, “For there is no power but of God: the powers that be are ordained of God.”

Our “Founding Fathers” broke away from those essentially theocratic beliefs to form the United States. Their Declaration of Independence states that governments derive “their just powers from the consent of the governed.” Our Constitution begins with the words, “We the People of the United States”. Our country’s fundamental founding concept is that our government derives its authority from the consent of the governed – WE THE PEOPLE make the decisions.

America made enemies when it declared that people should be governed by people. Royalists, monarchists and oligarchists do not believe these things. Many now believe that corporations and markets are better suited to make society’s decisions. The enemies our country has historically faced have been those who believed that someone at the top decides, not the people. First England, with its God-chosen King. Germany’s Kaiser Wilhelm II. Hitler’s Nazis with their ideology of “God’s chosen people” as Hitler privately referred to “the Aryans.” The Soviets were ruled by dictators who worshipped an ideology. Even our Civil War was fought against those who believed God gave them the right to own other people.

Does America’s concept of self-government still have enemies? Self-government is rejected in favor of God’s government in a shocking May, 2002 article, God’s Justice and Ours, [alternate source] written by Supreme Court Justice Antonin Scalia. The article is a refinement of January, 2002 remarks Scalia made at a U-Chicago panel discussion.

In the panel discussion and subsequent article Scalia explains his reasons for his belief that the death penalty is moral. His argument is that government – the State – is allowed to do things that regular people cannot do because government has a higher authority granted to it by God. He writes, “The death penalty is undoubtedly wrong unless one accords to the state a scope of moral action that goes beyond what is permitted to the individual.” He believes God chooses humanity’s leaders, and democracy obstructs God’s wishes by imposing ordinary people as the decision-makers. He condemns the “tendency of democracy to obscure the divine authority behind government”.

If one believes this, then one has the problem of how to identify the leaders that God chooses. Scalia appears to think that the way to identify legitimate God-chosen leaders is when they seize power in conflict, demonstrating that God chose them over others. He writes,

“These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles 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 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?”

THIS is the thinking of the guy who, in an electoral conflict, put Bush into the White House, blocking the democratic recount because a vote count showing Gore winning would harm Bush’s legitimate position as president-elect. Does Scalia see the Bush v Gore case as a “battle” that demonstrated that god chose Bush over Gore? Did Scalia think that he was acting as the people’s – the Constitution’s – agent in this, or instead as God’s agent?

The fact is that there are plenty of individuals, even in America, who do not believe in democracy. Think about the statements that voters in Florida are “too stupid to vote.” Just read the messages at any libertarian message board. Just think about the underlying philosophy behind the Republican corporatists: democratic government is bad and so should be weak, corporations are good, the rich are good, one-dollar-one-vote is the market way to make decisions. Just think about how the Christian Right controls much of the Republican Party now — powerful people and organizations that believe America is violating the laws of God by following concepts of self-government.

But OUR system believes that the PEOPLE govern. OUR constitution says that WE THE PEOPLE determine our destiny. And Scalia swore an oath to uphold and defend OUR Constitution!

Scalia writes, “The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible.” How far is this from a call to overthrow our constitutional government and replace it with a theocracy? This guy should not be on the Supreme Court. This sure sounds like he does not believe that the law comes from “We the People,” as the constitution says it does, and does not believe that the very principles underlying our form of government are legitimate! He calls for “people of faith” to combat democracy because it obscures “the divine authority behind government”!

How far have we come from the country I used to know – from the things I learned in my high school civics class? If our system were functioning properly Scalia would never have been nominated to a seat on our Supreme Court. If our system were functioning properly he would never have been confirmed. If our system were functioning properly Scalia would be impeached. Article VI, Clause 3, of our Constitution, says: “judicial Officers … shall be bound by Oath or Affirmation to support this constitution.” How could it possibly be more clear that Scalia does not fulfill his oath of office? It’s a testament to how far we have come from our self-governing roots that we are not in the streets demanding the resignation of such individuals. It is a testament to the strength of the forces in our country who oppose democracy and want to impose theocracy/corporatocracy! This is the battle we are engaged in with the right.

Does President Bush’s view of the law resemble Scalia’s? Do you remember when Bush attended a secret meeting with the Christian Far-Right’s Council for National Policy and emerged with the entire right-wing communications apparatus — the “Mighty Wurlitzer” — lined up behind him? What did he promise them? What about the snippets leaking out of the White House concerning Bush’s belief he is chosen by God to lead the Christians against Islam? Scalia himself endorses the idea that God authorizes Christian revenge, when Scalia writes, “government carries the sword as “the minister of God,” to “execute wrath” upon the evildoer.” Is that Bush speaking, or Scalia, or do the two really sound like one?

I have been corresponding with Eric Zuesse, author of the book, Why the Holocaust Happened: Its Religious Cause & Scholarly Cover-Up, who has been studying Scalia’s speech for some time, and who has a yet-to-be-published article that demolishes Scalia’s interpretation in his speech of St. Paul’s writing. Zuesse says,

“My analysis criticizes Scalia’s assertions as regards their historical falseness about Romans 13:1-5, and also as regards the beliefs they indicate to have been behind his actions in Bush v. Gore.

I especially criticize his implicit repudiation of the Declaration of Independence saying, that “governments are instituted among men, deriving their just powers from the consent of the governed,” and the U.S. Constitution saying that “We, the people of the United States … do ordain and establish this Constitution for the United States of America.” Both contradict Scalia’s “Government, however you want to limit that concept, derives its moral authority from God.”

So which is it going to be? Are we going to continue self-government? Or are we going to change to an authoritarian system, ruled from the top by a God-chosen leader? Is a theocracy the right-wing vision that Bush is implementing? Did Scalia already give us “the God-chosen leader” on December 9, 2000?