The conflict of conservatism
The freedom of religion guaranteed by the United States Constitution does not simply prohibit the government from forcing religion upon the people, it also prohibits the people from forcing it upon the government. Justice Scalia's remarks are appropriate in a discussion of the tragedy that surrounded Terri Schiavo's death, but they were made in the context of the rash of state constitutional amendments banning same-sex marriage.
Inherently then, the Constitution defines the law as objective and morality as subjective - the exact opposite of the way in which many conservatives view the duty of the courts and themselves.
We witnessed this aspect of American politics in its most extreme and dangerous form recently, when both the legislative and executive branches of the United States government forced themselves into the drama of Terri Schiavo's death and manufactured an authority over the judiciary branch.
"The legal and the political issues may be complicated," said House Leader Tom Delay in the wee hours of the morning, just before casting his vote for "Terri's Bill," "but the moral issues aren't."
And with that rationale, the Congress of the United States made an unprecedented decision to create legislation circumventing judicial process and authority, as well as the United States Constitution. Soon after, the president was reportedly awakened from his bed to sign the bill.
In the days that followed, conservatives kept the debate clearly defined.
"The executive branch and the legislative branch have demonstrated a belief that it is better to err on the side of human life," said President Bush before the judicial branch reached its decisions. "Now all eyes are on the courts to see what they will do."
The courts, of course, upheld the law and conservatives turned up the volume on their ongoing accusations that the courts have been overtaken by activists and obstructionists.
But at least one "conservative" Supreme Court judge resents the accusations and the effort to derail democracy.
"Courts do not exist to enforce the will of the majority," said Justice Scalia recently. "That's what conservatives seem to believe. But when the minority is right on an issue and the majority aren't willing to see that, then the courts become our only option."
Scalia's remarks are appropriate in a discussion of the tragedy that surrounded Terri Schiavo's death, but they were made in the context of the rash of state constitutional amendments banning same-sex marriage.
Like many legal scholars, Scalia believes that when the issue of marital rights for same-sex couples reaches the Supreme Court of the United States, those fighting against it will find no legal or constitutional ground for their bigotry.
The reason for this is simple. In order for democracy to succeed, even exist, majority rule cannot interfere with the legal rights of the minority population or opinion. When the protection of those rights is unenforced or unpopular, democracy devolves into populism and majority rule becomes mob rule.
Federalists like Hamilton, Jay and Madison distrusted "the superior force of an interested and overbearing majority," and supported a Constitution that would dampen "democratic excess." They understood that popular opinions change and pushed for a legal document impervious to change.
Historically, Americans have approved of the division of power in government between the executive, legislative and judicial branches, and viewed the judiciary, particularly the United States Supreme Court, as the highest power in the land, and its judgments as absolute.
Conservatives have traditionally been the biggest supporters of the Supreme Court, and applauded the least conspicuous and least democratic branch of government as the "professional" guardians of the Constitution against the "amateur" ideas of the populist Legislature.
For centuries they have viewed American politics as a form of civil religion - a manifestation of the divine creed revealed through the Constitution. Throughout the 19th century and in the early decades of the 20th, Conservatism could loosely be defined as a religiously ordained vision of a largely stateless society of self-regulating individuals.
But since the mid 1930s the disputes brought before the U.S. Supreme Court have focused more and more often on the extent to which the Constitution protects the rights of minority persons and minority opinions.
Conservatives find this shift disconcerting, especially when "self-regulating individuals" do not adhere to popular morality and the courts refused to intervene or, worse yet, condone the behavior as constitutional.
As the last century progressed, particularly after the civil rights movements of the 1960s and 1970s, conservatism became increasingly defined in terms of its opposition to a liberalism that has become increasingly defined in terms of cultural permissiveness.
Now, at the beginning of the 21st century, the real divide in American politics is not between Republicans and Democrats, red states and blue states, or even between Christians and non-Christians. The debate has become one between morality and legality, between which document governs America - the Bible or the Constitution.
In reality, politicians and judges are no more or less religious or moral today than any other period in American history. But in the past it seems as if they recognized that their duty was to uphold the law, even and especially when it contradicts popular opinion. The Bible may govern hearts and homes, but it is the Constitution that governs our democratic nation.