Stone: Justice Scalia's Cross

Justice Scalia's Cross
Geoffrey R. Stone
The Huffington Post
October 8, 2009

There was a time in the United States, early in the Nineteenth Century, when some judges claimed that Christianity was the rock and foundation of American law. In 1811, for example, New York Chancellor James Kent upheld a blasphemy conviction on the ground that "we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity." Other religions, Kent added, were not protected against derision, because the United States was premised on Christianity and "not upon the doctrines or worship" of Judaism, Islam or Hinduism, which he dismissed as mere "imposters" and "superstitions."

At the time, men like John Adams and Thomas Jefferson sharply criticized this view. Jefferson wrote a celebrated attack on the claim that Christianity was part and parcel of the law of the land, concluding that it was a sheer fabrication. Over time, Adams and Jefferson carried the day, and the argument that American law is an extension of Christian doctrine faded from view.

Every so often, however, we hear echoes of this position. On several occasions, I have raised the question whether some of our current Supreme Court justices may have failed adequately to distinguish between their own personal religious views and their understanding of the Constitution. Justice Scalia, in particular, has taken umbrage at this suggestion.

Faculty: 
Geoffrey R. Stone