I'm just shocked that he made such a blatantly political pick so soon after the Brownie fiasco. It's exasperating that Bush seems to care so little about the Supreme Court that he would rather appoint one of his cronies than someone who is passionate about the law but I must say that part of me is extremely amused by the Catch-22 situation this creates for Bush's followers. The most obvious attack on Miers is that she is a political nominee being rewarded for her loyalty instead of the best-qualified person for the job and that her nomination shows a trend of the Bush administration not respecting the credentials required for top government jobs, but the conservatives can't exactly go down that path without stirring up a whole lotta trouble.
I like Joe's idea. Harry Reid looks set to embrace her. All it would take for conservative senators to start backing out on her is the hint of a nannygate or similar liability.
"When there are so many proven judges in the mix, it is unacceptable this President has appointed a political crony with no conservative credentials. This attempt at 'Bush Packing' the Supreme Court must not be allowed to pass the Senate and we will forcefully oppose this nomination."
And it just occurred to me that there was probably a whole lot of backroom strong-arming by conservative Christians, and Bush reacted how he always reacts to strong-arming -- by giving them a giant middle finger. We're just used to the middle finger being extended toward us; that's why we're so confused.
Cynic that I am I laughed at the radical right voting for Bush thinking he would deliver.
Why would Republicans deliver the Supreme Court to the radicals? If they do that they lose one of their biggest carrots. Nah, they've chosen to stiff the radical right, figuring they'll stay with the Republicans because they've got nowhere else to go.
I'm bemused by some of the conservative commentary, which more or less amounts to 'we want someone who will rule in the way we want', which, of course is not 'legislating from the bench' but 'um, being a good judge.'
Dude, come on! The *theocratic* tendencies of Antonin Scalia? Please. Hell, even Tom Delay, crooked, partisan, SOB as he may me, isn't going to to put bishops into the house of lords any time soon.
I know the last 50 years of supreme court jurisprudence have been big wins for progressives (considered broadly), and it would suck for progressives to lose those victories. It's useful to recognize, however, that America was not an illiberal theocracy back in 1920. So it seems unlikely that the dread scenario of 9 scalia clones would really have the sweeping effects I read about in my direct mail pieces from People for the American Way.
A while ago, we were talking about what legal rights should protect journalists from disclosing sources who are subjects of criminal investigation. Then, it was suggested that to question the value of this principle (suboena immunity for the press) "reacting to long-standing principles as though they had just been invented right before your eyes". As it happens, shield laws are something of a recent innovation themselves, with as far as I can read what I google, a supreme court case in 1974 (one which denied a consitutional shield principle, by the way), spurred many states to institute shield laws. These laws now obtain in 31 states. No word on whether press freedom in the 19 states without shield laws (repressive Connecticut!) has suffered.
Why do I go into this song + dance? It's because many supreme court decisions are represented as crucial bulwarks of our freedom, when no realistically consideration of the facts really supports this depcition. as such. America was not a police state before Miranda. Were Miranda to be overturned or limited, it would not become a police state. And I say this as someone who's on the positive side of indifference towards Miranda. America was not a theocracy before establihsment came to imply ''wall of separation' reasoning, etc., etc.
Yes, there are some potential big consequences to Supreme court nominations. But let's keep the blood pressure appropriate, ok?
You know what *is* demoralizing? That after the great success with FEMA, Bush is again nominating someone to a key position whose main qualification appears to be personal loyalty to him. I suppose we should be thankful she has a J.D. and not a blue ribbon in equestrian.
I must say that both of these nominations have gone down far differently than I expected. Considering their record with lower federal courts, I would have bet money that the GOP would have used the tactic:
1. Nominate an extremist who is a member of a minority group
2. Try to get the candidate confirmed but don't really care if they are
3. If the candidate gets voted down, nominate another extremist of the same minority group
4. If the Democrats try to vote that candidate down, wail and cry "Why do the Democrats hate (members of candidate's minority group) so much?"
It's exasperating that Bush seems to care so little about the Supreme Court that he would rather appoint one of his cronies than someone who is passionate about the law...
I'm not throwing any support toward Miers or Bush, but that isn't the sense I've gotten from Bush's nominations. His consistent promotion of loyal subordinates sometimes plays as outright cronyism, but I think in some circumstances it's just a reflection of his need to know and trust someone personally before placing any amount of power in their hands. I think the Bush administration cares a great deal about the court, if only because the base (and consequentially Bush's handlers) care a great deal about the court. Miers is a known quantity to him, and that seems to carry more weight with Bush than any number of decisions from any well-regarded judge.
Again, I don't mean to endorse the nomination of someone so thoroughly unknown to the citizenry and its representatives (such as they are), but I don't think it was done lightly.
Yet DeLay wants more. Much more. As this day progresses, he tells me "I am still trying to drive the president," George W. Bush, toward a more conservative agenda. Toward a "permanent realignment" that will eternally discredit Democratic Party policies that DeLay considers "socialist." And, most important, toward building a more "God-centered" nation whose government will promote prayer and worship and the teaching of values.
"Our entire system is built on the Judeo-Christian ethic, but it fell apart when we started denying God," he says. "If you stand up today and acknowledge God, they will try to destroy you." His main mission, he says, is "to bring us back to the Constitution and to Absolute Truth that has been manipulated and destroyed by a liberal worldview."
And, of course, there's Scalia's firm belief that homosexuality is an abomination, and that the police ought to be able to arrest those who engage in it.
More generally, I'm concerned with outcomes and context: America wasn't a theocracy, even absent some guarantees of civil liberties that we have today, but that doesn't mean that it can't become one if those liberties are curtailed, because the push for theocratic government is much stronger now than then.
Re 17: also see Cass Sunstein's article in last month's Harper's (unfortunately not posted online yet), about the actual professed goals of the right-wing judicial movement. They're plainly radical, with plainly theocratic underpinnings.
To build on 18, in August's Harper's, an article told of Delay at church, was was televised, supporting what his pastor had said as "god's own truth." What his pastor has just said was that his congregation should vote Bush because the Iraq War would help bring about the second coming of christ. Viewing the American military as a means to biblical ends seems awful theocratic.
Further, you don't have to have bishops in office to have a theocracy. Here in the south we don't have such, but it would be absurd to deny that we have elements of a theocracy. They usually call them "blue laws," but not always. Of course the South is not a theocracy, but there is a real back and forth between those who want more and those who want less biblical law to become civic law.
And just because America wasn't a theocracy in the 1920s and bishops weren't mayors doesn't mean that there were places with much more strict (compared to today) biblical laws. There were, and we don't want to return to those laws. Those who want more biblical law are a minority, I think, but they are a strong, unified, motivated minority. How much one thinks they could accomplish might be a judgement call, but one, if one is prudent, should at least recognize that they are there and that they're working hard to achieve their ends.
Hey, that's a great article on Delay! It just goes to show -- one shouldn't generalize about people based on the 3-second impression you get of them from grazing the headlines. What a fascinating character.
My reaction to the use of "theocracy" as a term of political rhetoric, is, I suppose, something like the following. If some political actor says "I believe X as a moral truth, our society is founded on X, only by X can we reach our true potential as people," this is a statement of moral idealism that is OK with me. If X is a secularly phrased moral belief, that's OK, if it's a religiously phrased moral belief, likewise. Theocracy, to me, says: priests in power, an official state religion, the absence of relgious toleration/religious persecution, and an illiberal system. I don't slot Tom Delay (or Scalia, boogeyman though he may be) into that category.
As for SP's point above. Yes! There was a bad old days before civil rights. It was terrible. That does not mean that pointing to civil rights suffices as a generic defence for progressive legal causes and constitutional interpretation.
Theocracy is hyberbole; plus, a fundamentalist evangelical theocracy doesn't leave any room for Scalia's Catholicism.
That said, the moral idealism itself is a bit worrisome; I'm not sure the world DeLay & co envision has any room for me, and I think intolerance, though not theocracy, would be a fair charge against DeLay.
baa, do you think the idea that the authority behind government is divine, and that people of faith should combat efforts to obscure its divine source--by making sure that we are officially reminded that "we are a religious people, whose institutions presuppose a Supreme Being"--has a theocratic tinge? I do. It's not priests in power, but it's an attempt to have government ram religion down the throats of unbelievers. Define how you like, but it sure looks like Scalia is trying to impose his religion on society, as his religion (and would do more if his power weren't checked).
I think the premise of the post is mistaken, though. Rove and Gonzales, I suppose, aren't theocrats, and Norquist may not be either. But they're not recognizably human, either. What makes me feel far away from someone is not extreme religiosity but the unprincipled pursuit of power--take Gonzales, writing that the chief executive has summary authority to set aside any laws he likes, basically because he knows that's what his boss wants to hear. Brrr. Not that, as in DeLay, this can't be combined with wanting to shove religion down our throats too. Bush may not be a social conservative--I think he most firmly believes in the promotion of Bush and his kind--but that doesn't make me feel him as any more human either.
Good question. Many people consider the question of Government's authority (as opposed to its utility) to be a basically moral question. While I would not sign onto the whole Robert Wolff program, I think he has that about right. If so, then the proposition that the authority behind government is divine reduces to the proposition that the authority behind morality is divine. Well, whatever one thinks of this question (or even whether it's a well-phrased question), it's just got to be the kind of question that a liberal state does not prejudge.
If you believe that the source of morality is divine, and you live in a liberal state, you get to advocate that view. Likewise if you believe the opposite. The question really is whether secular/religious moralists get to lobby the government to have one view or the other "officially" promulgated or endorsed.
This would be a very nice place to draw the bright line. As we know from the practice of liberal democracy, however, it is very, very hard to draw this line. We *do* want certain values officially promulgated. I want, for example, racial tolerance officially promulgated. People will want to have reasons behind the values, and here we all (religious and secular) have preferences.
So government will give a reason to oppose racism. The president will give a speech, the law will have a frothy preamble. Maybe we will need to explain it in school. I don't want the President to to say "racism is wrong because it causes inefficiencies in the labor market and depresses GDP." I want the answer to be "racism is wrong because it is an offense against human decency." Do I get to lobby for that view? If so, it is going to be very, very hard to explain to a believing monotheist why they can't lobby for the explanation: "racism is wrong because God made us brothers and sisters."
Long story short: I don't think we can remain a liberal state and avoid attempts to get the government to endorse values, and secular/religious justifications for these values.
Scalia's position is a more complex than I can do justice to here, but I think the punchline -- that it is mistaken to ...believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals... -- seems to me an eminently respectable one for a liberal citizen to bring to the battle of ideas. If he an his allies can convince people of this, and their elected representatitves make it law, that's not theocracy, it's democracy.
Interestingly, in the essay you cite, Scalia talks extensively about how to hold strong religious/moral convinctions while not "imposing" them on the state injustly (e.g., by simply communting every death sentence because you believe it is wrong, or I suppose, ignoring sentencing guidelines to impose the death penalty for every murderer because you believe it is right). He thinks some variant of legal formalism is a better answer than the alternatives, and I think it is a decent case.
Cala, I think we're all intolerant of something. The question is of what. I don't see any evidence whatsoever that Delay opposes religious toleration, or would refuse to tolerate atheists and agnostics. He may think they are mistaken and dangerous. But then, they may think he's mistaken and dangerous.
If you believe that the source of morality is divine, and you live in a liberal state, you get to advocate that view.
There's a long leap from saying that the source of morality is divine to saying that the source of morality is Christian, or Muslim. The latter, which is really what's at issue here, isn't banned speech, but it's also not a legitimate position in a liberal democracy; it's theocratic. People can "in god we trust" it up all they like, but "in god we trust, and therefore no abortions for you" is out of bounds.
America was not an illiberal theocracy back in 1920...
I don't want to dispute this, since we have enough examples of genuine theocracies to see that America wasn't like that, but I do want to question if it wasn't mostly because of a lack of pluralism. That is, if it was assumed that most everyone was a Protestant, and if not a (weird and dangerous) Papist, or at the extreme a (gasp!) Jew, and Protestant voices had unquestioned dominance of public discourse, then perhaps it wasn't a theocracy because it didn't have much of anything to supress.
I should note that, for a Jew, I know embarrassingly little about the history of the Jewish experience in America. Happy Erev Rosh Hashana.
There's a distinction I've been pondering, and I'd thought I'd throw it out here:
So, prior to Miranda, for example, we didn't live in a police state; the decision wasn't accompanied with thousands of prisoners being released. Similarly, prior to Roe, some states had legal abortion, some didn't.
But what if Miranda or Roe were overturned? Would that not be taken as a sanction or implicit approval of police-state-like-tactics or criminalizing abortion? Would not the likely result be an increase in such tactics and abortion laws?
My point is that I think the comparison to '1920s' America is inaccurate; overturning a decision wouldn't in practice return us to an undecided state.
I think it would be funny for the left to give her a bear hug, and watch the right demand her withdrawal.
Posted by Joe Drymala | Link to this comment | 10- 3-05 9:49 AM
I'm just shocked that he made such a blatantly political pick so soon after the Brownie fiasco. It's exasperating that Bush seems to care so little about the Supreme Court that he would rather appoint one of his cronies than someone who is passionate about the law but I must say that part of me is extremely amused by the Catch-22 situation this creates for Bush's followers. The most obvious attack on Miers is that she is a political nominee being rewarded for her loyalty instead of the best-qualified person for the job and that her nomination shows a trend of the Bush administration not respecting the credentials required for top government jobs, but the conservatives can't exactly go down that path without stirring up a whole lotta trouble.
Posted by Becks | Link to this comment | 10- 3-05 9:59 AM
I like Joe's idea. Harry Reid looks set to embrace her. All it would take for conservative senators to start backing out on her is the hint of a nannygate or similar liability.
Posted by slolernr | Link to this comment | 10- 3-05 10:01 AM
One conservative group:
Bill Kristol:
I won't be surprised if Miers doesn't make it. Then we'll have to wonder if that was the plan all along....
Posted by ogged | Link to this comment | 10- 3-05 10:13 AM
Man, it sounds like the right is starting to have no use whatsoever for George Bush.
Posted by Joe Drymala | Link to this comment | 10- 3-05 10:14 AM
And it just occurred to me that there was probably a whole lot of backroom strong-arming by conservative Christians, and Bush reacted how he always reacts to strong-arming -- by giving them a giant middle finger. We're just used to the middle finger being extended toward us; that's why we're so confused.
Sorry about mixing corporeal metaphors.
Posted by Joe Drymala | Link to this comment | 10- 3-05 10:17 AM
Cynic that I am I laughed at the radical right voting for Bush thinking he would deliver.
Why would Republicans deliver the Supreme Court to the radicals? If they do that they lose one of their biggest carrots. Nah, they've chosen to stiff the radical right, figuring they'll stay with the Republicans because they've got nowhere else to go.
Suckers!
Posted by Tripp | Link to this comment | 10- 3-05 10:25 AM
Joe,
Thanks for the Kristol quote. I can't manage to load the Weekly Standard site; I think the conservative sites are getting a lot of traffic just now...
Posted by bostoniangirl | Link to this comment | 10- 3-05 10:26 AM
I'm bemused by some of the conservative commentary, which more or less amounts to 'we want someone who will rule in the way we want', which, of course is not 'legislating from the bench' but 'um, being a good judge.'
But what a contrast from Roberts!
Posted by Cala | Link to this comment | 10- 3-05 10:29 AM
Um, you're welcome, but I didn't buy you that drink, the proprietor did.
Posted by Joe Drymala | Link to this comment | 10- 3-05 10:41 AM
Dude, come on! The *theocratic* tendencies of Antonin Scalia? Please. Hell, even Tom Delay, crooked, partisan, SOB as he may me, isn't going to to put bishops into the house of lords any time soon.
I know the last 50 years of supreme court jurisprudence have been big wins for progressives (considered broadly), and it would suck for progressives to lose those victories. It's useful to recognize, however, that America was not an illiberal theocracy back in 1920. So it seems unlikely that the dread scenario of 9 scalia clones would really have the sweeping effects I read about in my direct mail pieces from People for the American Way.
A while ago, we were talking about what legal rights should protect journalists from disclosing sources who are subjects of criminal investigation. Then, it was suggested that to question the value of this principle (suboena immunity for the press) "reacting to long-standing principles as though they had just been invented right before your eyes". As it happens, shield laws are something of a recent innovation themselves, with as far as I can read what I google, a supreme court case in 1974 (one which denied a consitutional shield principle, by the way), spurred many states to institute shield laws. These laws now obtain in 31 states. No word on whether press freedom in the 19 states without shield laws (repressive Connecticut!) has suffered.
Why do I go into this song + dance? It's because many supreme court decisions are represented as crucial bulwarks of our freedom, when no realistically consideration of the facts really supports this depcition. as such. America was not a police state before Miranda. Were Miranda to be overturned or limited, it would not become a police state. And I say this as someone who's on the positive side of indifference towards Miranda. America was not a theocracy before establihsment came to imply ''wall of separation' reasoning, etc., etc.
Yes, there are some potential big consequences to Supreme court nominations. But let's keep the blood pressure appropriate, ok?
You know what *is* demoralizing? That after the great success with FEMA, Bush is again nominating someone to a key position whose main qualification appears to be personal loyalty to him. I suppose we should be thankful she has a J.D. and not a blue ribbon in equestrian.
Posted by baa | Link to this comment | 10- 3-05 10:56 AM
I must say that both of these nominations have gone down far differently than I expected. Considering their record with lower federal courts, I would have bet money that the GOP would have used the tactic:
1. Nominate an extremist who is a member of a minority group
2. Try to get the candidate confirmed but don't really care if they are
3. If the candidate gets voted down, nominate another extremist of the same minority group
4. If the Democrats try to vote that candidate down, wail and cry "Why do the Democrats hate (members of candidate's minority group) so much?"
5. Repeat 3 & 4 until the Democrats cave.
Posted by Becks | Link to this comment | 10- 3-05 11:00 AM
Hey, Becks has a new blog.
Posted by Joe Drymala | Link to this comment | 10- 3-05 11:13 AM
Don't know how I let the posts elide into each other.
Posted by bostoniangirl | Link to this comment | 10- 3-05 11:19 AM
If anyone thinks Roberts or Miers (is that pronounced like Myers or Meers?) is going to be Souter II, you should read two posts by the Rude One.
baa- it wasn't a theocracy, but it was pretty damn illiberal. I suspect a few people with dark skin might think so too.
Posted by SP | Link to this comment | 10- 3-05 11:29 AM
It's exasperating that Bush seems to care so little about the Supreme Court that he would rather appoint one of his cronies than someone who is passionate about the law...
I'm not throwing any support toward Miers or Bush, but that isn't the sense I've gotten from Bush's nominations. His consistent promotion of loyal subordinates sometimes plays as outright cronyism, but I think in some circumstances it's just a reflection of his need to know and trust someone personally before placing any amount of power in their hands. I think the Bush administration cares a great deal about the court, if only because the base (and consequentially Bush's handlers) care a great deal about the court. Miers is a known quantity to him, and that seems to carry more weight with Bush than any number of decisions from any well-regarded judge.
Again, I don't mean to endorse the nomination of someone so thoroughly unknown to the citizenry and its representatives (such as they are), but I don't think it was done lightly.
Posted by Tarrou | Link to this comment | 10- 3-05 11:31 AM
baa, here's one for you.
And, of course, there's Scalia's firm belief that homosexuality is an abomination, and that the police ought to be able to arrest those who engage in it.
More generally, I'm concerned with outcomes and context: America wasn't a theocracy, even absent some guarantees of civil liberties that we have today, but that doesn't mean that it can't become one if those liberties are curtailed, because the push for theocratic government is much stronger now than then.
Posted by ogged | Link to this comment | 10- 3-05 11:34 AM
Re 17: also see Cass Sunstein's article in last month's Harper's (unfortunately not posted online yet), about the actual professed goals of the right-wing judicial movement. They're plainly radical, with plainly theocratic underpinnings.
Posted by Joe Drymala | Link to this comment | 10- 3-05 11:40 AM
Operation Rescue just came out against her.
Posted by Joe Drymala | Link to this comment | 10- 3-05 12:00 PM
To build on 18, in August's Harper's, an article told of Delay at church, was was televised, supporting what his pastor had said as "god's own truth." What his pastor has just said was that his congregation should vote Bush because the Iraq War would help bring about the second coming of christ. Viewing the American military as a means to biblical ends seems awful theocratic.
Further, you don't have to have bishops in office to have a theocracy. Here in the south we don't have such, but it would be absurd to deny that we have elements of a theocracy. They usually call them "blue laws," but not always. Of course the South is not a theocracy, but there is a real back and forth between those who want more and those who want less biblical law to become civic law.
And just because America wasn't a theocracy in the 1920s and bishops weren't mayors doesn't mean that there were places with much more strict (compared to today) biblical laws. There were, and we don't want to return to those laws. Those who want more biblical law are a minority, I think, but they are a strong, unified, motivated minority. How much one thinks they could accomplish might be a judgement call, but one, if one is prudent, should at least recognize that they are there and that they're working hard to achieve their ends.
Posted by Michael | Link to this comment | 10- 3-05 12:21 PM
I meant to build on 17, but 18 rather works.
Posted by Michael | Link to this comment | 10- 3-05 12:22 PM
Scalia might be harder to pin down than Delay, though. On the one hand, anti-gay. OTOH, pro-orgy.
Posted by Michael | Link to this comment | 10- 3-05 12:36 PM
Scalia might be harder to pin down than Delay
I'll be spending the next hour trying to scrub that mental image from the memory banks. [shudder]
Posted by apostropher | Link to this comment | 10- 3-05 1:06 PM
Hey, that's a great article on Delay! It just goes to show -- one shouldn't generalize about people based on the 3-second impression you get of them from grazing the headlines. What a fascinating character.
My reaction to the use of "theocracy" as a term of political rhetoric, is, I suppose, something like the following. If some political actor says "I believe X as a moral truth, our society is founded on X, only by X can we reach our true potential as people," this is a statement of moral idealism that is OK with me. If X is a secularly phrased moral belief, that's OK, if it's a religiously phrased moral belief, likewise. Theocracy, to me, says: priests in power, an official state religion, the absence of relgious toleration/religious persecution, and an illiberal system. I don't slot Tom Delay (or Scalia, boogeyman though he may be) into that category.
As for SP's point above. Yes! There was a bad old days before civil rights. It was terrible. That does not mean that pointing to civil rights suffices as a generic defence for progressive legal causes and constitutional interpretation.
Posted by baa | Link to this comment | 10- 3-05 1:55 PM
Theocracy is hyberbole; plus, a fundamentalist evangelical theocracy doesn't leave any room for Scalia's Catholicism.
That said, the moral idealism itself is a bit worrisome; I'm not sure the world DeLay & co envision has any room for me, and I think intolerance, though not theocracy, would be a fair charge against DeLay.
Posted by Cala | Link to this comment | 10- 3-05 2:07 PM
baa, do you think the idea that the authority behind government is divine, and that people of faith should combat efforts to obscure its divine source--by making sure that we are officially reminded that "we are a religious people, whose institutions presuppose a Supreme Being"--has a theocratic tinge? I do. It's not priests in power, but it's an attempt to have government ram religion down the throats of unbelievers. Define how you like, but it sure looks like Scalia is trying to impose his religion on society, as his religion (and would do more if his power weren't checked).
I think the premise of the post is mistaken, though. Rove and Gonzales, I suppose, aren't theocrats, and Norquist may not be either. But they're not recognizably human, either. What makes me feel far away from someone is not extreme religiosity but the unprincipled pursuit of power--take Gonzales, writing that the chief executive has summary authority to set aside any laws he likes, basically because he knows that's what his boss wants to hear. Brrr. Not that, as in DeLay, this can't be combined with wanting to shove religion down our throats too. Bush may not be a social conservative--I think he most firmly believes in the promotion of Bush and his kind--but that doesn't make me feel him as any more human either.
Posted by Matt Weiner | Link to this comment | 10- 3-05 2:19 PM
I think the premise of the post is mistaken
Yeah, I should have put an "or" between "absolutist" and "theocratic."
Posted by ogged | Link to this comment | 10- 3-05 2:22 PM
Matt:
Good question. Many people consider the question of Government's authority (as opposed to its utility) to be a basically moral question. While I would not sign onto the whole Robert Wolff program, I think he has that about right. If so, then the proposition that the authority behind government is divine reduces to the proposition that the authority behind morality is divine. Well, whatever one thinks of this question (or even whether it's a well-phrased question), it's just got to be the kind of question that a liberal state does not prejudge.
If you believe that the source of morality is divine, and you live in a liberal state, you get to advocate that view. Likewise if you believe the opposite. The question really is whether secular/religious moralists get to lobby the government to have one view or the other "officially" promulgated or endorsed.
This would be a very nice place to draw the bright line. As we know from the practice of liberal democracy, however, it is very, very hard to draw this line. We *do* want certain values officially promulgated. I want, for example, racial tolerance officially promulgated. People will want to have reasons behind the values, and here we all (religious and secular) have preferences.
So government will give a reason to oppose racism. The president will give a speech, the law will have a frothy preamble. Maybe we will need to explain it in school. I don't want the President to to say "racism is wrong because it causes inefficiencies in the labor market and depresses GDP." I want the answer to be "racism is wrong because it is an offense against human decency." Do I get to lobby for that view? If so, it is going to be very, very hard to explain to a believing monotheist why they can't lobby for the explanation: "racism is wrong because God made us brothers and sisters."
Long story short: I don't think we can remain a liberal state and avoid attempts to get the government to endorse values, and secular/religious justifications for these values.
Scalia's position is a more complex than I can do justice to here, but I think the punchline -- that it is mistaken to ...believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals... -- seems to me an eminently respectable one for a liberal citizen to bring to the battle of ideas. If he an his allies can convince people of this, and their elected representatitves make it law, that's not theocracy, it's democracy.
Interestingly, in the essay you cite, Scalia talks extensively about how to hold strong religious/moral convinctions while not "imposing" them on the state injustly (e.g., by simply communting every death sentence because you believe it is wrong, or I suppose, ignoring sentencing guidelines to impose the death penalty for every murderer because you believe it is right). He thinks some variant of legal formalism is a better answer than the alternatives, and I think it is a decent case.
Cala, I think we're all intolerant of something. The question is of what. I don't see any evidence whatsoever that Delay opposes religious toleration, or would refuse to tolerate atheists and agnostics. He may think they are mistaken and dangerous. But then, they may think he's mistaken and dangerous.
Posted by baa | Link to this comment | 10- 3-05 2:59 PM
If you believe that the source of morality is divine, and you live in a liberal state, you get to advocate that view.
There's a long leap from saying that the source of morality is divine to saying that the source of morality is Christian, or Muslim. The latter, which is really what's at issue here, isn't banned speech, but it's also not a legitimate position in a liberal democracy; it's theocratic. People can "in god we trust" it up all they like, but "in god we trust, and therefore no abortions for you" is out of bounds.
Posted by ogged | Link to this comment | 10- 3-05 3:25 PM
America was not an illiberal theocracy back in 1920...
I don't want to dispute this, since we have enough examples of genuine theocracies to see that America wasn't like that, but I do want to question if it wasn't mostly because of a lack of pluralism. That is, if it was assumed that most everyone was a Protestant, and if not a (weird and dangerous) Papist, or at the extreme a (gasp!) Jew, and Protestant voices had unquestioned dominance of public discourse, then perhaps it wasn't a theocracy because it didn't have much of anything to supress.
I should note that, for a Jew, I know embarrassingly little about the history of the Jewish experience in America. Happy Erev Rosh Hashana.
Posted by washerdreyer | Link to this comment | 10- 3-05 4:12 PM
suppress
Posted by washerdreyer | Link to this comment | 10- 3-05 4:13 PM
There's a distinction I've been pondering, and I'd thought I'd throw it out here:
So, prior to Miranda, for example, we didn't live in a police state; the decision wasn't accompanied with thousands of prisoners being released. Similarly, prior to Roe, some states had legal abortion, some didn't.
But what if Miranda or Roe were overturned? Would that not be taken as a sanction or implicit approval of police-state-like-tactics or criminalizing abortion? Would not the likely result be an increase in such tactics and abortion laws?
My point is that I think the comparison to '1920s' America is inaccurate; overturning a decision wouldn't in practice return us to an undecided state.
Posted by Cala | Link to this comment | 10- 3-05 4:45 PM
"...those with absolutist theocratic sympathies, like the Scalias, Robertsons, and DeLays of the world.
I don't have the impression that any of these three people thinks remotely like one of the others.
I could be entirely wrong, of course.
Posted by Gary Farber | Link to this comment | 10- 3-05 9:20 PM