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“of”, “for”, and “by” the people, sure

September 27, 2009, 11:04 pm

In an interview with the Orthodox Jewish paper Hamodia, Justice Scalia says,

More recently we have allowed the Ten Commandments on the grounds of the Texas State Legislature. I think we have been moving back towards what the American Constitution provided.

I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life.

Steve Benen comments,

How would government staying neutral on matters of faith “drive God out of public life”? Scalia didn’t say.

Actually, I think it’s reasonably clear. Scalia is blurring, deliberately or not, the distinction between the public sphere and the government. Public life and the transactions of the Lege are not to be distinguished.

I’m no scholar of the Constitution, but it seems plain in the Preamble that it and the institutions it lays out are, at least conceptually, ordained and established by the People. (Even the people of the State of Texas likewise “ordain and establish”, though not before invoking G-d.) Government may control us in more ways than we’d like, it may employ more of us than we care to admit, but it is our creature.

I wouldn’t have thought there was a particular political chirality to this common error, but it may well now belong, if only as a rhetorical strategy, to the right. Certainly much of the Republican opposition voiced over the past year to Keynesian deficit spending was phrased in these terms — when times are tough, we have to tighten our belts! — as if the government were just like a private individual, or were the aggregate of all the private individuals it governs. (And I’ve heard the same from a winger friend.)

Am I right? It seems downright perverse that the party of the rhetoric of small government should so freely resort to a confusion that implies a kind of statism.

And does the confusion have a history? From what I recall of my civics, the Founders did their founding out of an experience in which the distinction between government and the governed had grown all too stark.

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