Nino and democracy

Brenda Johnson writes in to say lots of nice things about "Rush, Newspeak and Fascism," but adds:

I have a minor disagreement, though, with your analysis of Antonin Scalia's position with respect to the legitimacy of democracy in his article, "God's Justice and Ours."

When I read the passages you quoted from Scalia's article, including the sentence, "[t]he reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible," I did not understand Scalia to be attacking democracy, or advising persons of faith to combat democratic forms of government. It looked more to me like Scalia was saying that persons of faith should combat the temptation to believe that a democratically-elected government, made up as it is of persons selected by the governed, does not enjoy the divine mandate that Scalia apparently believes all governments enjoy.

I figured I could be wrong, so I went and read the Scalia article in toto, and stand by my interpretation. Especially given the statements that follow -- in which he endorses the American tendency include a certain amount of "god talk" in civic discourse as a proper means by which to combat this tendency -- it seems to me that Scalia is not exhorting anyone to reject democracy per se. Anything but. And I really don't read him as claiming that legitimate government can only arise through conflict.

Scalia clearly thinks the belief that governments enjoy a divine mandate is an essential aspect of the rule of law, and that the rule of law -- and the ability of governments to govern -- will erode without it. Scalia seems to believe that all governments, including democracies, are vested through this divine mandate with a peculiar power -- and duty -- to dispense justice, and should not be subjected to the same sort of moral scrutiny we apply to the actions of individuals. This is a little antidemocratic, I suppose. But not rabidly so.

For reference's sake, here's what I wrote about Scalia:

This very concept -- that the law must accede to a higher authority -- is now being circulated by none other than Supreme Court Justice Antonin Scalia. The upshot is that the Supreme Court itself is in danger of aligning itself explicitly with the open use of such thuggery as may be necessary to maintain power.

The main evidence lies within a May 2002 piece by Scalia, "God's Justice and Ours." Particularly startling was this:

These passages from Romans represent the consensus of Western thought until very recent times. Not just of Christian or religious thought, but of secular thought regarding the powers of the state. That consensus has been upset, I think, by the emergence of democracy. It is easy to see the hand of the Almighty behind rulers whose forebears, in the dim mists of history, were supposedly anointed by God, or who at least obtained their thrones in awful and unpredictable battles whose outcome was determined by the Lord of Hosts, that is, the Lord of Armies. It is much more difficult to see the hand of God—or any higher moral authority—behind the fools and rogues (as the losers would have it) whom we ourselves elect to do our own will. How can their power to avenge—to vindicate the "public order"—be any greater than our own?

And this:

The mistaken tendency to believe that a democratic government, being nothing more than the composite will of its individual citizens, has no more moral power or authority than they do as individuals has adverse effects in other areas as well. It fosters civil disobedience, for example, which proceeds on the assumption that what the individual citizen considers an unjust law—even if it does not compel him to act unjustly—need not be obeyed. St. Paul would not agree. "Ye must needs be subject," he said, "not only for wrath, but also for conscience sake." For conscience sake. The reaction of people of faith to this tendency of democracy to obscure the divine authority behind government should not be resignation to it, but the resolution to combat it as effectively as possible. [Emphasis mine]

As Dave Johnson of the Commonweal Institute correctly suggests, "Scalia appears to think that the way to identify legitimate God-chosen leaders is when they seize power in conflict, demonstrating that God chose them over others." Scalia's formula invites all kinds of mischief, including particularly the overthrow of democracy itself. Notably, Scalia reveals an open hostility to democracy anyway when he contends that it tends "to obscure the divine authority behind government." One indeed wonders if Scalia has read the Declaration of Independence, which enumerated one of the basic principles of American democracy, namely, that "Governments are instituted among Men, deriving their just powers from the consent of the governed."

Under the legal theory Scalia now seems to advocate, a Bush administration that saw itself on a divine mission might find some justification for refusing to relinquish the reins of power to a Democratic election winner in 2004. With the backing of Patriot thugs who shout down political dissenters, and a devotedly pro-Bush military, it would not be hard to imagine who would be most likely to lay claim to being the "hand of God" and thereby winning Scalia's proclamation as the nation's true ruler, mere democracy notwithstanding.

I think Brenda's reading of Scalia's thinking is perfectly reasonable, and is one that I think has pretty wide circulation in legal circles.

However, there is some ambiguity, in part because Scalia has not explored this point further in other writings. But I think even what he has written here is disturbing in its implications.

American democracy, as I read the Declaration of Independence and other founding documents, does not merely obscure the notion of the divine empowerment of government -- it is directly inimical to such a concept. Men may receive divine inspiration, but ultimately democracy is a government of men and laws, nothing more, nothing less. The principle of government receiving its power solely from "the consent of the governed," and not from some divine authority, was central to the anti-monarchists who were the Founding Fathers.

Scalia, in essence, is expressing a monarchist/theocratic point of view -- legitimate in itself, but a wolf in democracy's wool clothing. Especially disturbing to me is the clear implication that even the law itself must derive its direction from Holy Writ (why else the reference to Paul?), that there is a "law higher than the law." This is, as I argue, a classic fascist motif.

I recognize, of course, that my argument is not the conventional one. But I have a hard time reading Scalia's writings in this instance without concluding that his arguments for a divine authority behind secular government are ultimately deeply disturbing. Lord save us from a government convinced it is doing God's work.