WHAT COULD BE MORE TEXTUALIST?:

We're on a Mission From God: Is the Ten Commandments case turning Scalia into a devotee of natural law? (Michael McGough, March 9, 2005, Slate)

Last week's oral arguments at the U.S. Supreme Court over the constitutionality of Ten Commandments displays on public property offered an embarrassment of riches for students of the court and of the culture wars in general. Among other revelations, we discovered that Justice David H. Souter uses the term "Roman" as a synonym for Roman Catholic—a quaint (and to some Catholics insulting) locution favored by high-church Episcopalians of past generations. But perhaps the biggest surprise, in more ways than one, was Justice Anton Scalia's insistence that most of the proffered "secular" rationales for Ten Commandments displays were absurd. [...]

And national commentators are incensed at Scalia's even bolder statement that the commandments are "a symbol of the fact that government derives its authority from God," which strikes many of them as a dangerous betrayal of the most basic notion that in this country, at least, government derives its authority from its citizens.

Except that the text says:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

The authority is God's. The People grant or withhold consent based on whether they are being governed in accord with that authority.

Posted by Orrin Judd at March 16, 2005 12:12 PM