So-called “Justice” Antonin Scalia, apparently desperate for attention in the wake of recent media focus on a Supreme Court fantasy league (you win by guessing how each justice will vote on upcoming cases), has gotten it by asserting, in a Washington’s birthday speech at Chicago’s Union League Club, that while Chicago pizza is “very tasty, it’s not pizza.” This from a guy who grew up in Elmhurst, Queens, which I am sure is a very pleasant place, but is it “the city”? No it is not.
Scalia found it “truly appalling” that students at elite law schools today have often never read the Federalist Papers, blaming it on “an age that worships diversity and moral relativism.” He attacked the Supreme Court itself for having “adopted the demonstrably unhistoric view that the Constitution forbids not merely the favoring of one religion over the other, but even the favoring of religion in general. In fact, it forbids the former but not the latter.”
This last assertion is about as sound as his dismissal of Chicago pizza. Supreme Court jurisprudence on the establishment and free exercise clauses of the First Amendment is back in the news this year. I am not a player in the fantasy-SCOTUS game, but I can say that Scalia might edify himself by looking, before he casts any more votes in actual cases, at the versions of the First Amendment that were in fact proposed and rejected by the First Congress in 1789, especially in the Senate on September 3, 1789. They do not support Scalia’s blanket assertion. (See my last blog post, “War On Religious Liberty Update,” for details.) They are available, for example, in Appendix One of John Witte, Jr.’s Religion and the American Constitutional Experiment: Essential Rights and Liberties. To sum up what actually happened in September 1789, the First Amendment drafts that prohibited laws establishing “one religious sect or society in preference to others” or laws “establishing any particular denomination” or “infringing the rights of conscience” or “establishing articles of faith or a mode of worship” were all set aside in favor of the actual First Amendment.
As John Witte remarks, one can plausibly develop both “thin” and “thicker” interpretations of the First Amendment, bearing in mind that “free exercise” and “establishment” “were the broadest terms at hand to describe the principles and province of religious liberty” and to define the “outer boundaries of proper congressional conduct.” Scalia speaks as if his approach, “nonpreferential aid” and “noncoercive support” for religion, is what all non-ignorant and historically literate people would accept as obvious. But readers of Douglas Laycock’s law review articles on “‘Nonpreferential’ Aid to Religion: A False Claim about Original Intent” and “‘Noncoercive’ Support for Religion: Another False Claim about the Establishment Clause” (1986 and 1992; reprinted in Laycock, Religious Liberty: Overviews and History, 2010) will likely see Scalia’s assertions more as convenient ideology than well-founded history. Put another way, Douglas Laycock is judicious, Antonin Scalia is not.