Where do you look for the highest law? The Constitution? The Ten Commandments? The Light of Reason puts the nomination of John Roberts and his answer to that question under a bright light:
Roberts said that he might have to recuse himself from certain cases, precisely because his religious beliefs would compel one conclusion—while the Constitution and applicable law might dictate another one. He would be unable to resolve that conflict—because he places the two authorities on equal footing.
He draws a link to anti-Catholicism and the candidacy of John F. Kennedy, and the ultimate authority must be the Constitution of the United States:
The critical point is that, in Roberts’ case, the other authority happens to be a religious one—but as my counterexample shows, religion is not the only possible other source. And no such additional source is proper—not in terms of the ultimate authority for determining the constitutionality of a given law and/or its application. So it is not a religious test in that sense at all: the “test” goes only to the manner in which a particular nominee holds his own religious beliefs, and the weight he gives them. It is not his religion as such that disqualifies him, but the fact that he gives his religion equal weight with the Constitution in deciding legal matters. That is not permissible—by the terms of our intentionally God-less constitution itself.
and
imagine the howls of outrage that would be emitted by Hannity himself and all those of similar “conservative” beliefs, if a Supreme Court nominee said that, when confronted by certain questions, he would view generally accepted views as enunciated in international or foreign law as of equal importance to the principles set forth in the Constitution and the laws of the United States.
and
Remember all of this, and this sentence in particular: “I do not speak for my church on public matters—and the church does not speak for me.” That is the principle that Roberts does not appear to understand.Posted by binky at July 27, 2005 07:16 PM | TrackBack | Posted to Law and the Courts
Binky,
Okay, so Jefferson believed in a God who approved of reason. However, this does not necessarily mean as Peikoff suggests that Jefferson viewed God as an idea nothing more than a derivative of reason. I find it more likely that Jefferson believed the evidence of God to withstand the cold neon light of reason, and he was encouraging this nephew to reach this conclusion as well. This is absolutely not a fundamental rejection of faith, but rather its opposite.
Peikoff argues that the framers of the Constitution want to set man free because there's nothing to fear in setting free a rational animal, but the existence of the third article and specific provisions such as those against treason provide weighty evidence that the framers recognized setting the animal free, rational or not, was by no means their intention. Peikoff argues that the framers wanted to set man free to exercise his reason, but if reason was paramount to their concerns then why is that word not found once in the document. It's true, religion is not found either, but religious is in the Constitution's specific directive that no religious test shall ever be required to hold an office. Peikoff argues that private property is evidence of the framers' deism, but this is absolutely not the case; I don't recall atheism being a quid pro quo for Locke's theories. In fact, he provides a great bit of advice:
"The toleration of those that differ from others in matters of religion is so agreeable to the Gospel of Jesus Christ, and to the genuine reason of mankind, that it seems monstrous for men to be so blind as not to perceive the necessity and advantage of it in so clear a light."
The issue of religious toleration is as important to this debate because America was founded in large part by Puritans, Jews, Quakers, and Roman Catholics seeking protection from being persecuted for their beliefs in Europe. This is where our country started, and if we've gotten back to the point where we'll keep people out of office because of their religion, what progress have we really made toward securing the blessings of liberty to ourselves and our posterity?
It seems that you didn't read the post, because it carefully explains exactly the opposite of "where we'll keep people out of office because of their religion". It's not recommending keeping someone out of office because someone belongs to a particular religion. It's recommending that we should not choose someone who will not to put the Constitution higher than his or her religion (or international law as described in detail in the linked to post).
The Supreme Court justices are supposed to uphold the law of the Constitution, not that of "Puritans, Jews, Quakers, and Roman Catholics" or the UN for that matter. As described on the Light of Reason post, Kennedy reinforced this ( “I do not speak for my church on public matters—and the church does not speak for me.” ) without repudiating Catholicism. If you read the post, you will see that nothing calls for Roberts to cease to be religious, or calls for a ban on putting practicing Catholics on the Supreme Court. What it does say is that those appointed to the Highest Court should use the Highest Law of the United States as the basis for their decisions.
Apparently the reading comprehension section was where the "somethingth" percentile cut off.
Posted by: binky at July 28, 2005 10:04 AM | PERMALINKBinky,
The "light of reason" blogger bases his arguments that the Constitution is essentially Godless (the part you hyperlinked) on the arguments of Peikoff which I dispute in my first response. There is a religious influence to the Constitution (the no religious tests line) and even if you agree with his assumptions and think it's there not because the framers believed in it, but because they couldn't get it passed without such a passage, it's there.
Of course, there's a story out now suggesting the exchange may not have even occured, because Roberts gave a different response to Coburn.
http://news.yahoo.com/news?tmpl=story&u=/usnw/20050728/pl_usnw/media_outlets_reported_durbin_s_alleged_question_about_roberts_sfaith__ignored_coburn_s_says_media_matters_for_america114_xml
"Coburn said he and the nominee discussed issues ranging from Roberts' faith and his relationship with his wife to how he might change as a member of the country's highest court. He said Roberts declined to answer a question about how his Catholic faith influences his life and work.
"He said, 'I'm very uncomfortable talking about that,"' Coburn said. Coburn said he planned to ask the questions Roberts wouldn't answer again at their next meeting. The senator said he hoped that meeting would be one-on-one."
1. The hyperlink was in his original.
2. Yes he thinks the Constitution is godless.
3. His belief in a godless constitution does not invalidate his argument.
4. His argument is that a Supreme Court Justice should not place any law higher than the constitution.
5. Religious law as well as international law (in his view) are equally improper as equals/superiors to the Constitution.
6. Your Peikoff point is irrelevant, as the religious faith of the founders is not in question.
7. The point in question is what is the highest law of the land.
8. Catholicism is not the highest law of the land.
9. If Roberts did not make the comments, I would like to see clear evidence.
10. Every Supreme Court nominee is uncomfortable. Big deal.
Binky,
Actually, no, the idea that the Constitution is intentionally God-less is not irrelevant, because of that little statement I keep going back to that says no religious tests can be imposed for someone to take office. This is very clear, and you don't have to be an originalist to understand it (though I guess it doesn't hurt to have scored a 90-somethingth percentile on the GRE verbal, and to be able to comprehend reading). Assuming he did actually make the comment, he did say exactly that he would not rule in favor of the Constitution, but that he would recuse himself from decisions where he found conflict with religion, so I'd think the liberal in you would be happy that all those 5-4 O'Connor decisions would continue to stand because with Roberts out of the picture, the conservatives wouldn't have a majority needed to overturn them. I can't help wonder what's next if we take your suggestion and keep Roberts off the court because of his religion. Maybe we should keep people who believe in a religion from being teachers because we don't want our children influenced by people with those kinds of values, right? And we must keep them from being policemen and policewomen because we can't have their Catholic/Jewish/Muslim values enforced on our citizens at the street level? So, how about this: how about you propose a Constitutional ammendment to ban any people who believe in religion from working in public service jobs, Binky? Or should I say, STALIN?
Oh ho ho. Ha ha ha. Hee hee hee.
1. You're wrong. I've told you multiple times in multiple ways what I've said, and you insist on telling me that I am saying something else. I'm sure it's a fun tactic, but no.
2. I wondered how long it would take you to throw the Hitler/Stalin/Mao card. Very original. Works well with the ladies too, no doubt.
3. I will say it one last time that the part of the Light of Reason post I was interested in highlight was: there is no law equal to or higher than the Constitution for those on the Supreme Court. This applies equally to secular law and religious law.
4. "I can't help wonder what's next if we take your suggestion and keep Roberts off the court because of his religion. " This is not my suggestion. You are making things up. Again, likely fun for you, and possibly popular with the kiddies at story time, but wrong.
5. And let's go back to this, shall we? "no religious tests can be imposed for someone to take office." This is not my point, not at all. Let's consider the following:
"I, [NAME], do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [TITLE] under the Constitution and laws of the United States. So help me God.''
6. Your statement ("Maybe we should keep people who believe in a religion from being teachers because we don't want our children influenced by people with those kinds of values, right? And we must keep them from being policemen and policewomen because we can't have their Catholic/Jewish/Muslim values enforced on our citizens at the street level? So, how about this: how about you propose a Constitutional ammendment to ban any people who believe in religion from working in public service jobs") worries me, Morris. It's kind of like the right's fascination with homosexual sex. Deny you're interested, but all you can think about is authoritarianism. Hmmm.
7. Just for clarity's sake, one final time, the thing that bothered me about this is that someone on the Supreme Court of the United States might not consider the U.S Constitution to the the Supreme Law of the land.
Oh, and a small p.s. on the whole Light of Reason thing: I know you dislike liberals, so I sought ought a conservative for you. And now we see you don't like them either. Hmmm, hates everything, doesn't listen, only argues... you need a new title.
Posted by: binky at July 29, 2005 10:28 AM | PERMALINKdamn, binky -- i was all set to go hunt down the oath of office, which among other things does not say, i'll discharge my duties except when it makes me uncomfortable in light of my extra-legal beliefs. while recusal may be appropriate under certain limited circumstances (conflict of interest or its appearance), a supreme court justice who abdicates the responsibility to resolve matters of constitutional law that he voluntarily undertakes on a regular basis with regard to the most vexing issues facing his court is absolutely unacceptable. just unacceptable. end of story.
seriously, morris, would you think it appropriate that a president elected from a position of pacifism "recuse" (or its equivalent) himself from the responsibilities foisted upon him on the occasion of a direct attack on american soil? i mean, after all, he didn't lie, the americans chose him, and his religious faith precludes him making war. of course that would be unacceptable; you would demand his resignation or, under the 25th amendment, his removal.
similarly, if roberts knows going in that he will have to recuse himself from the very issues the supreme court finds itself buried in these days, he has a moral obligation to get the hell out of the picture now. period.
as for your yahoo cite, what's your point, morris? what roberts may or may not have said to coburn has absolutely nothing to do with what he may or may not have said to durbin. while there's nothing rigorous enough in your comments to warrant further research, i remember turley's original story referring to roberts' discomfort upon hearing the question, and his poise faltering. so later in the day he goes to talk to coburn, and instead of getting cornered again, he produces the response that he and his handlers decided was more appropriate.
furthermore, the question allegedly asked by coburn is not the same as that allegedly asked by durbin anyway. i'm inclined to honor roberts reluctance to speak in broad terms about how his faith affects his personal life, and even his professional life in a background sense. but that's very different than saying i don't care whether his faith makes him the equivalent of a one-armed wallpaper hanger because he'll drop out of the hardest cases time and again in effective violation of his oath of office, which requires him to "administer justice . . . [and] faithfully and impartially discharge and perform all the duties incumbent upon me as [Associate Justice of the Supreme Court of the United States of America] under the Constitution and laws."
i'm sorry, where does it say "all the duties except those that make me uncomfortable in virtue of my private life?" where does it say, i have the prerogative not to discuss my private life in any way notwithstanding that when the chips are down it will trump the public responsibilities to which my oath of office binds me?
yeah, that's what i thought.
just for the record, morris, i am patiently remaining where i've been since the nomination first was announced: just on the vote-to-confirm side of the discussion, because magnanimous as i am (you won't think so, but than you don't have a magnanimous bone in your body), i think bush has every right to appoint a fairly conservative justice as the electorate's choice as the man who has that constitutional responsibility, just as i think president clinton had the right to confirmation of twice as many federal judges as he was allowed, and that the republicans were twice the scoundrels in their backroom use of the blue slip flibuster of one as the democrats who at least muster a significant plurality for the filibusters they enact unabashedly in the public eye, just as i believe that the next democratic president should be entitled to confirmation of a liberal nominee even if by a majority conservative senate.
i think that's how this all is supposed to work, and that confirmation is a process designed to reveal only those truly scandalous, or professional-infirmity-revealing-and-thus-disqualifying details.
but i believe that a justice whose faith will significantly preclude him from doing his job is professionally infirm and thus disqualified; roberts needs to qualify this and soon. and just because he polished up his evasion skills between his interviews with durbin and coburn doesn't mean he can pretend he didn't say what he said: under certain circumstances, i will not perform all the duties incumbent on me as a justice of the supreme court. bad answer.
Posted by: joshua at July 29, 2005 10:49 AM | PERMALINKperhaps now's a good time to recall that scalia once said that any judge who finds himself unable to impose or uphold of the death penalty, qua law of the land, in virtue of his religious beliefs has only one available course of action: resignation. now we all know how much you love scalia and his ilk, morris: was he wrong?
Posted by: joshua at July 29, 2005 10:53 AM | PERMALINKBut Joshua, I don't think it's even faith ("a justice whose faith will significantly preclude him from doing his job"). All of the Supreme Court justices have faith, and some share Roberts' faith.
Posted by: binky at July 29, 2005 11:04 AM | PERMALINK