Scalia: It Is A Lie That Gov't Cannot Favor Religion Over Secularism

[MFrohike]

47. True as far as it goes

The constitution doesn't say anything about favoring or disfavoring religion. The only mention, unless I'm forgetting something, is the Establishment Clause.

I see a lot of attempts to refute Tony based on originalist ideas. That's a bad mistake. If you want to refute him, use the logic he displayed here to do it. He's essentially claiming the constitution's silence on the issue makes it permissible. That's fine. The constitution is silent on a lot of issues. In fact, when it comes to the powers of the federal government, it's overwhelmingly silent. There are the enumerated powers, which cover a good amount ground. Then there are the specific powers prohibited to Congress, such as bills of attainder. Otherwise, Article I is silent as a ghost when it comes to the powers of the government.

The dominant argument is that the federal government is a government of limited powers, in that it's restricted to the powers granted to it by the constitution (original text and amendments). That seems to be an illogical assumption to make, given that the Framers (not the fucking Founders, they came a lot earlier) clearly had the opportunity to restrict federal power on a whole host of issues, but chose only to explicitly do so in a few areas. Why should we assume that federal power is limited to those enumerated powers, and the amendments, when such an assumption does not square with the fact that specific prohibitions exist? It seems more reasonable to conclude that the constitution contains explicit powers and prohibitions and the rest is up for grabs. That view would accord with John Marshall's famous comment in McCullough, about expounding a constitution, not a code of laws.

Anyway, if Tony wants to view the constitution expansively, it's clearly better to meet him on that ground than on the ground of originalism. Originalism is about as useful as an argument over sports. It might be fun, but it's got no value other than entertainment. It's pointless to run back to the Framers for definitive statements because they are dead. They've been dead a long time. The fundamental weakness of originalism is one simple question: why should the dead hand of the past govern the present or the future?