MARCH 21, 2005
“THANK YOU, MOSES.” When I heard those words outside the marshal’s office at the Supreme Court the other day, I trembled for my country. I had come to hear the oral arguments in the Ten Commandments cases, and was prepared for a morning’s appreciation of what Moses brought down from the mountain; but in the courtroom, not in the corridor. My liberal’s back went up. Thou shalt not mistake the Torah for the Constitution. But my liberal’s sigh of relief could be heard up and down the marble hall when I discovered that the revered figure who was the object of this grateful address was a jolly guard named Moses. He had just steered a gaggle of God-fearers in the direction of the great chamber. Moses had led them to the struggle for Moses. I followed behind, no mean Mosaicist myself.
IT WAS AMUSING TO WATCH THE CONSERVATIVES at the lectern argue that the monument of the Ten Commandments on the grounds of the state capitol in Austin deserves the protection of the Court because it is the historical, and even the secular, symbol of a common heritage; and encouraging to discover that the justices were having none of this Christian casuistry. They seemed all to agree that the Decalogue is a religious expression, which plainly it is. None of them seemed especially horrified by this fact, at least in these settings. A reasonable distinction between the acknowledgment of religion by the state and the establishment of religion by the state was in the air, and none of the justices wished government to be hostile to religion. I will be surprised if the Court orders the slab of pious stone in Texas, or the framed commandments that hang in courthouses in Kentucky, removed.
STILL, TROUBLING THINGS WERE SAID. A number of the justices declared— dispositively, as they like to say—that “we are a religious nation.” The implication was that there is a quantitative answer to a philosophical question. But what does the prevalence of a belief have to do with its veracity, or with its legitimacy? If every American but one were religious, we would still have to construct our moral and political order upon respect for that one. In its form, the proposition that “we are a religious nation“ is like the proposition that “we are a white nation” or that “we are a Christian nation” or that “we are a heterosexual nation,” which is to say, it is a prescription for the tyranny of a majority. And if the opposite generalization were the case, if we were not “a religious nation,” if we were a multitude of heretics and voluptuaries, would the case for tolerating a public display of the Mosaic creed be less powerful? The joke here is on the believers. They hold their faith not because it is popular, but because it is true. If they resort to the argument from numbers, however, they will rob their beliefs of philosophical prestige, and abandon them to the netherworld of popular nonsense. There is strength in numbers, but there is not truth. In this regard, the moral sensibilities of minorities are more refined than the moral sensibilities of majorities. They are never flattered by empiricism, never tempted by triumphalism.
THE MORNING’S DISPUTATIONS CONFIRMED me in my view of Antonin Scalia’s lack of intellectual distinction. He is very smart, of course; but now he shows only the brilliance of a perfectly settled perspective. I have been an amateur but diligent reader of his opinions for many years, and increasingly they seem like op-eds in robes. Scalia does not recognize the difference between a denunciation and a demonstration. At the court last week, he dripped certainties. “Government draws its authority from God.” “Our laws are derived from God.” “The moral order is ordained by God.” “Human affairs are directed by God.” “God is the foundation of the state.” These are dogmas, not proofs. Scalia simply asserts them and moves on to incredulity and indignation. But how does he know these things? Does he hold these opinions, all venerable ones, by the authority of his reason or by the authority of his tradition? If by the former, then he should do my reason the honor of giving an account of his reason, so that I might be able in good conscience to assent; and if by the latter, well, his tradition is not my tradition, and so his assurances do not compel me. Certainty, as Maimonides warned his student, must not come by accident. It is an insult to democratic discussion to introduce these doctrines without an accompanying sense of the obligation to argue for them. But Scalia dispenses with argument, he lives after argument; and in its happy sensation of its own rightness, life after argument is very much like life before argument. Scalia’s undisturbed experience of obvious truth is a kind of mental decadence. And his condescension can become cynicism, as when he insouciantly declared that “probably 90 percent of the American people believe in the Ten Commandments and I bet you 85 percent couldn’t tell you what they are.” It doesn’t matter that 85 percent of the American people are taking His name in vain, as long as they are taking it.
AS AN ILLUSTRATION OF AN ACCEPTABLE display of the Ten Commandments on government property, some of the justices pointed to the figure of Moses on the marble frieze on the upper wall of their own courtroom, carved after pencil sketches by Cass Gilbert, the building’s Beaux-Arts architect. (Moses appears also on the eastern pediment outside the building.) There the prophet stands, facing the bench, and holding in his hands the revealed law, inscribed in Hebrew and in gold. By a miracle of political convenience, only the second tablet appears, the one with the non-theological instructions. As I pondered this sculpture, I saw that it represents not a victory for the believers, but a defeat for them. For here is the son of Amram, fresh from his meeting with God at Sinai, newly in possession of the exclusive and immutable law, alongside Hammurabi and Menes and Solon and Confucius and Octavian. (And opposite Mohammed and Napoleon and John Marshall.) He is a lawgiver among lawgivers, no more. This is a fine iconographical program for the court, but it is decidedly not what the devout have in mind. On the south wall of America’s most significant courtroom, the Ten Commandments have not only been celebrated, they have also been relativized. I reflected sweetly upon the inevitability with which the multiplicity of beliefs in an open society condemns absolutists to an exasperated existence. Pluralism protects them, but it also discomfits them. And their discomfiture is one of democracy’s beauties.
This article appeared in March 21, 2005 issue of the magazine.