The New York Times editorial of Monday, March 21, 2005 entitled "That Scalia Charm" goes south on Scalia because of his "originalism." By "originalism" Justice Scalia means that it is the wording of the Constitution and not the ephemeral philosophic vagaries of a plurality that has not reached consensus - much less that of the nine justices of the Court - that is normative as the law of the land. They quote him: "By what conceivable warrant can nine lawyers presume to be the authoritative conscience of the nation?" As they say, he attacks "the idea of a `living Constitution,' one that evolves with modern sensibilities."
As a justice, Scalia, of course, is right. He is a technician of text and must interpret words. But the rub always comes down to the meaning of the words as they were originally intended, and that demands a re-entry into the original experience and consciousness of the nation at the moment of founding and establishment. As mentioned in the February 16 posting below, Scalia asserts that "(t)he central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned." The difficulty, of course, is that we did have a consensus in 1776 and 1791 which was the grounding of the meaning of the words that the Justices must interpret. Scalia's task as Justice is to interpret the Constitutional text in that light of that meaning, not impose a philosophy. Words are symbols of meaning. But if he does not re-enter the self-evidence that produced those original words, he in fact willy nilly imposes a philosophy, and therefore a meaning. As it is, by insisting that "non-originalism" - as anything beyond the text - must not be imposed on the American people, he assumes and unwittingly imposes the philosophy of legal positivism. As always, you cannot refute philosophy without philosophizing. As suggested in the 2/16 posting, John Paul II asserted that "(i)f there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people." He concluded that "if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism."
Scalia himself cannot escape confronting the epistemological question as to what was constitutive of the original American experience - which was unmistakably religious in general and Christian in particular that gave us the consciousness that became the grounding secular truth of the dignity of the human person and the rights accruing to that dignity. The Constitution and the Bill of Rights must be interpreted within the light of that experience and consciousness. It does not establish Christianity as the national religion. In fact, it is this Christian consciousness that gives us the meaning of the human person as a self-determining freedom that is the grounding of the civic, secular order and expressly prohibits the establishment of Christianity, or any religion, as a condition of citizenship.
Obviously, I am affirming that Christianity is the foundation of a true secularity that is the meaning of freedom as a relative autonomy (and not secularism that is the negation of the existence or revelance of God). See the 2/16 post for the development of this.