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Justice Scalia and the Pledge of Allegiance

This post at SCOTUSblog ponders whether Justice Scalia will recuse himself from future cases involve the Pledge of Allegiance. And I might add that it seems likely that such a case will once again rise up to the attention of the Supremes.

I certainly hope that Scalia doesn't recuse himself in future cases. Even though I suspect that he will vote in favor of retaining "under God," and in my last post I explained why I thought the phrase should be removed, I don't think it's right for him to recuse himself from future cases.

Scalia's public remarks about Newdow may have been in violation of the custom of the Supreme Court Justices not to talk about future cases, but it's ridiculous to think that he therefore wouldn't be able to adjudicate the case fairly. Or that he doesn't have opinions about cases bubbling up through the Circuit Courts.

There are probably few people in the United States who are more knowledgeable about constitutional church and state issues than Justice Scalia. If people who have never read a court decision in their lives feel qualified to give their opinions, why do we expect that Scalia, who surely read the Ninth Circuit's opinion in Newdow and has not only read many other court opinions but has actually written many of them, would not have some kind of opinion?

I suspect that Scalia's take on a future case will be very similar to what Justice Thomas wrote in his concurring opinion. That state legislatures should be given more deference in this arena, because the Establishment Clause was originally meant to apply only to the federal government and not to the states. (For those who haven't read the First Amendment in a while, it begins "Congress shall make no law . . . ." It says nothing about what state legislatures may do. States are only mentioned in the Second and Tenth Amendments.)

posted Thursday, June 17, 2004

3 Comments:

By Xrlq:

States aren't mentioned in the Second Amendment, either. The reference to "the security of a free state" is to the country as a whole. In U.S. v. Cruikshank, the court ruled that none of the Bill of Rights applied to the states. It was only later, through the tortured "incorporation" doctrine, that any of this changed. Even under that doctrine, the Second Amendment has yet to be applied to the states.

In past cases, Justice Thomas has alluded to the possibility of setting aside the incorporation doctrine as we know it, and re-incorporating individual rights under the long-neglected "privileges or immunities" clause instead. Presumably, this would include all of the individual rights protected by the Bill of Rights, such as freedom of speech / press / religion, but would not extend to structural limitations on government, such as the Establishment Clause or the Tenth Amendment.

posted at 6/17/2004 2:27 PM

By Calico Cat:

I always thought that Barron v. Baltimore and Hurtado v. California were cited for the principle that the Bill of Rights doesn't apply to the states.

In the language of the Constitution, "State" means one of the States comprising the United States. And back then, I believe that each of the States had their own militias. So the way I read it, the Second Amendment is referring to the individual States and not the United States.

posted at 6/17/2004 4:22 PM

By Xrlq:

It's a plausible reading, I suppose. The important thing is that it was never held to apply to the states, as some parts of the original Constitution did (and, arguably, the Second Amendment itself should have, given the use of the passive voice vs. "Congress shall make no law...").

posted at 6/18/2004 10:14 AM