c. 2007 Religion News Service

(UNDATED) “Some men see things as they are and say, why; I dream things that never were and say, why not.”

Not Supreme Court Justice Antonin Scalia. At least, not when he’s at his day job deciding cases. Dreaming things that never were and saying “why not” is for lawmakers _ presidents and congressmen _ fantasists and, regrettably, too many of Scalia’s Supreme Court colleagues who practice “What the hey” judicial activism.

Scalia kicked off the University of Portland Garaventa Center’s conference on religious freedom April 19. His keynote address _ he called it his sermon _ focused on realism in freedom of religion cases. But his homily would just as easily apply to his general _ and proper _ approach to judging. Scalia’s earthbound jurisprudence favors realism over abstraction, text and tradition over dreaming, and dream-making, from the bench.

“Now I have nothing against formulaic abstractions, otherwise known as rules. They are the means by which judicial arbitrariness is checked,” he told the crowd. “But unless it is thought that the most fundamental laws of our society were meant to be made up by judges, those formulaic abstractions ought to be rooted in, ought to be derived from, the text of the Constitution and, where that is in itself unclear, the settled practices that the text represents.”

What does this mean in religion cases? Scalia not only wants to consider what the draftsmen of the Constitution meant, but also the common practices at the time. In a case banning prayers at public graduation ceremonies (Lee v. Weisman) in 1992, he pointed out that public prayer at government ceremonies extends back to the Declaration of Independence.

One day after the First Amendment was proposed, Congress asked President George Washington to proclaim “a day of public thanksgiving” to acknowledge “the many and signal favours of Almighty God.”’ And President Thomas Jefferson, who coined the phrase “wall of separation between church and state,” sought the help of _ he prayed and asked his countrymen to pray to _ a supreme being for guidance.

As for prayer at graduations, the historic record is no less rich. Scalia’s Lee v. Weisman dissent referred to the first public high school graduation, in July 1868. According to a study he cited, “15 seniors from the Norwich Free Academy marched in their best Sunday suits and dresses into a church hall and waited through majestic music and long prayers.” It was the very month the 14th Amendment was ratified and applied the establishment clause to the states.

What, then, is the prudent judge to do when the nation’s settled practices collide with court-invented formulaic abstractions?

The true test of a judge’s formulas or rules is whether “they yield the results that American society has traditionally accepted,” Scalia said at his Portland lecture. “If so, they can be applied to new situations … with at least the probability, if not the assurance, that the results they produce are a continuation … of the same constitutional tradition.”

What does the imprudent _ and immodest _ judge do when the nation’s settled practices collide with the doctrinal abstractions he happens to favor? One of two things, both of which Scalia thinks are harmful: 1) Lay waste to those settled practices, those long-standing traditions, one way or another. 2) Carve out a special exception for a particular tradition _ say, tax exemptions for religious property or prayers at the opening of legislative sessions _ while simultaneously “mouthing” his favored formulaic abstraction.

It’s a jurisprudence only intellectuals or fans of judge-made laws and “the living Constitution” can love.

In his Lee v. Weisman dissent, Scalia recalled Justice Oliver Wendell Holmes’ aphorism that “a page of history is worth a volume of logic.”

We should be so lucky. Logicians would mark an improvement over what too many of Scalia’s Supreme Court colleagues have become in many First Amendment religion cases. It was bad enough that they’ve become interior decorators in holiday display cases, deciding what’s constitutional based on the placement of the Christmas tree, the menorah, the creche and Frosty the Snowman. In Lee, Scalia wrote that the court majority had now become amateur psychologists in finding a public graduation prayer impermissible on the grounds that it amounted to “psychological coercion.”

“(W)hile I have no quarrel with the Court’s general proposition that the Establishment Clause `guarantees that government may not coerce anyone to support or participate in religion or its exercise,”’ Scalia wrote, “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty _ a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone rather than of Freud.”

Bingo.

Scalia may have been writing in dissent in this and other marquee religion cases _ he says he’s actually a “centrist” on religion cases in that he’s usually sided with the majority since he joined the court in 1986 _ but his “originalist” dissents have elevated the debate on religion in particular and jurisprudence in general. Moreover, the former law professor’s impact on constitutional analysis will be felt for generations.

It was easy to see why. Scalia began his Portland lecture with the stirring “Some men see things …” words cited above. Only at the end, after making the case that judges should resist the temptation to impose their own abstractions and fancies on a nation’s settled practices and traditions, did Scalia tell the audience the provenance of these words. They came from George Bernard Shaw’s play “Back to Methuselah.” The words are spoken by a serpent and addressed to a woman named Eve.

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“Constitutional rules are formed _ or ought to be formed _ much as the common law used to be developed by taking the `givens’ of long-accepted practice, and asking what principle would explain those results,” he said. “That principle then becomes the governing rule.”

If judges are bent on practicing another trade, they might act more like physicists. The givens of long-accepted practice should be “the raw data from which the rules should be constructed _ much as physical phenomena are the raw data from which the theories of physics are derived,” Scalia said.

The givens are the lived experience of the people whose Constitution this is, their historic and settled practices, their accepted constitutional traditions. Real stuff. Rooted stuff. Not the stuff of a judge-turned-interior-decorator-turned-amateur-psychologist-turned-social-engineer-turned-philosopher-king.

Alas, not the stuff that dreams are made of.

(David Reinhard writes for The Oregonian in Portland, Ore.)

DSB/LF END REINHARD