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March 13, 2005 - A Short Note on The Divine Nature of Human Law

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This is interesting (maybe only to me) but it will take our Wall Street Attorney friend back to his law school courses in constitutional law.  Maybe I like it because the author is editor at large in the Washington bureau of the Pittsburgh Post-Gazette - and I must miss my hometown?  No.  (And, by the way, the Pittsburgh Post-Gazette is one awful newspaper.)  I suspect I’m just amused by what Justice Anton Scalia said in the arguments last week in the Supreme Court regarding displays of the Ten Commandments, discussed here.  He did say the commandments are "a symbol of the fact that government derives its authority from God." 


Say what?  Much has been said on that in the commentaries I’ve come across – from the right, cheers that someone finally said the obvious, and here, the judgment that “this a dangerous betrayal of the most basic notion that in this country, at least, government derives its authority from its citizens.”  I did read that somewhere in a history book somewhere – the authority of our odd American government being derived from the consent of the governed or some such thing.  I must have got it wrong.  The authority comes from God, in spite of what those bewigged eighteenth century dudes said in Philadelphia so long ago – a bunch of damned Deists of course (noting the correct use of the adjective, damned).


And note Scalia says this is a “fact” – which is odd.  Fact can be examined, verified, tested.  Sounds more like an opinion to me.  But you have to trust him – he’s smart, well-educated, glib and a lawyer.  He must be right. 


This fellow below quotes H. Jefferson Powell - a professor of law and divinity (an odd combination there) at Duke University (where I did my graduate work) - describing Scalia in as a "hard positivist" whose view is that "law is simply whatever the sovereign has ordained, with a little waffle room for tradition."   If so, that is curious.  The next time our another attorney friend makes an argument in front of that there SCOTUS to win over Tony she should, obviously, simply say her position is clearly what God has ordained.  Case closed.  I believe they’ve locked horns before.  This would win him over.  She could sum up her argument by calmly saying, “God knows I’m right- just ask him.”  QED.


The author also cites another argument used by the Christian Legal Society in that Pledge of Allegiance case (Michael Newdow being difficult - ELK GROVE UNIFIED SCHOOL DISTRICT et al. v. NEWDOW et al. - No. 02—1624 - Argued March 24, 2004–Decided June 14, 2004 - where those folks argued that schoolchildren saying "under God" are simply channeling the framers' beliefs.  Say what?  See February 27, 2005 - Pay attention! This is a new America! in these pages discussing Our Godless Constitution - Brooke Allen, The Nation, from the February 21, 2005 issue.  The framers liked Voltaire more than they liked the God-guys.  Oops.


Make your own comments about theocracy, and if you’d like, read this -


We're on a Mission From God
Is the Ten Commandments case turning Scalia into a devotee of natural law?
By Michael McGough -
Posted Wednesday, March 9, 2005, at 2:37 PM PT – SLATE.COM


It’s pretty amazing.  Scalia is saying God determines our laws.  He does? 


Copyright 2003, 2004, 2005, 2006 - Alan M. Pavlik
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