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Antonin Scalia - An Activist Judge

President George W. Bush says that his ideal Supreme Court justice is Antonin Scalia. The president has also said that a justice should interpret the Constitution and not be an activist who makes law. Well, he cannot have both someone like Scalia and a strict constructionist, because Scalia is an activist. He does not believe in the separation of church and state and through his Court decisions tries to merge the two. He is a theocrat.

According to Scalia, he is an originalist. He says he interprets the original Constitution and not a modern version of the Constitution. In his opinions and in his speeches he dwells on what he considers to be the religious values of our founding fathers. Here is what he has written in the recent 10 Commandments cases:

"And when somebody goes by that monument, I don't think they're studying each one of the commandments. It's a symbol of the fact that government comes — derives its authority from God. And that is, it seems to me, an appropriate symbol to be on State grounds."

In a democracy, does not the government derive its authority from the people?

Here's another way Scalia expressed his theocratic ideas:

"The Founding Fathers never used the phrase 'separation of church and state.'"

This is just plain not true. Thomas Jefferson wrote a letter to the Danbury Baptist Association in 1802 with reference to the Constitution, clearly stating:

"... I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between church and state."

How far does Scalia go? Last fall, while talking in a Synagogue about the Holocaust, he remarked:

"Did it turn out that, by reason of the separation of church and state, the Jews were safer in Europe than they were in the United States of America? I don't think so."

In other words, Scalia claims that the rise of Hitler was related in some way to Germany's separation of church and state. Therefore, I suppose, Jews should welcome America becoming a "Christian nation" - a theocracy.

Scalia has been called a great legal mind. Maybe that's why I don't understand this. I see that when church and state are combined, we get pogroms, we get inquisitions, we get crusades, we get terrorism.

I join Thomas Jefferson and the other founders who proclaimed that government derives its authority from the people. Like them, I believe in democracy and in the separation of church and state. I do not want Bush to nominate someone like Scalia to replace Justice O'Connor.

Scalia is an activist judge. We do not need more theocrats on the Court.

Posted by Paul Siegel at July 6, 2005 5:15 PM