Dover Bitch

Wednesday, May 30, 2007

What a strange notion

When DB was in high school, one of my favorite history teachers used to show Fred Friendly Seminars from time to time. If you've never seen them, they were excellent. Friendly would assemble a panel of important figures from a wide spectrum of America's institutions and present them with incredibly well-thought out hypothetical scenarios.

I remember how impressed I was to see and hear Supreme Court Justice Antonin Scalia on those panels. He was quite an effective communicator and his answers to these difficult questions always seemed well reasoned and well grounded.

I'm not sure exactly when I lost respect for Scalia and his intellect, but it is long gone. Had I not watched those seminars, I would have no idea why anybody takes his arguments seriously. Still, I find myself surprised to hear or read praise for his logic. Perhaps it is a form of respect among Constitutional scholars that DB will just never appreciate.

Today, Andrew Koppelman takes on Scalia's poor application of the line between Church and State. Koppelman clearly identifies how sloppy the practical results of Scalia's interpretation are.

But in the post, we find this:

Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.”

No. That's not powerful logic. It is nonsense. The First Amendment gives us all the freedom to write, but it doesn't imply that we have to write. It doesn't imply that the government should tell us what to read, either. Freedom of the press means that the government stays out of the way in both production of ideas and consumption. Obviously, there is nothing in the Constitution expressly prohibiting the government from endorsing certain types of writing, certainly not from engaging in writing itself.

But the Establishment Clause exists. The Framers could have simply added "freedom of religion" to their enumeration. They didn't. That may be "strange," but it is not insignificant.

Nature is full of strange and wonderful phenomena that have been successfully exploited by living beings and systems from the dawn of time. Scalia is eager to endorse the idea that all of nature's successful oddities are the deliberate result of a creator.

What a strange notion, that such a person would find it incomprehensible that our nation's foundational legal document, drafted by a convention of great thinkers and ratified by the states, could contain a novel approach to protecting our most basic freedoms.

Stranger still is the notion that a Supreme Court justice would encounter such a novelty in the Constitution and then proceed to issue opinions as if it didn't exist.

UPDATE: How's this for a coincidence? Lou Dobbs just had author Peter Irons on to talk about the separation of Church and State. The last thing Irons said to Dobbs was in reference to Fred Friendly's seminars.

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