As President Obama puts forward Judge Merrick Garland as a nominee for the Supreme Court and Republicans balk at a shift to the left, it is interesting to speculate if the recently deceased conservative Antonin Scalia might have been embraced by the Muslim Brotherhood.
I am not a legal scholar, so I am not able to fully consider the weight of Antonin Scalia’s argument cross-culturally. But in an obituary written by Christianity Today I found a particular statement very interesting, especially in consideration of religious rights in the Muslim world.
To begin contrarily, Scalia was clear that his legal interpretation was based solely on the Constitution, not his personal Catholic moral code. Though firmly opposed to abortion, for example, he did not base his vote on scripture.
“I’m a worldly judge,” he said in a 1996 speech at a Catholic university in Rome. “I just do what the Constitution tells me to do.” The only one of the Ten Commandments relevant to the judge’s role, he said, was the command to tell the truth.
This stance bothered some pro-life advocates. For them the opposition to abortion centers in the inalienable right to life, given by the Creator. Yet the logic is consistent with the American heritage of caution concerning religion and state, and Scalia was nonetheless heralded by both religious and judicial conservatives for his powerful judgment.
But here is the statement over which I am still puzzling. It is sensible, but it does not seem right.
“The whole theory of democracy,” he said, “is that the majority rules. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection” through a constitution or a statute.
My mind immediately went to Islam and sharia law. As interpreted by some, Christians and Jews (and perhaps others) are given very clear protections within a Muslim state. But as interpreted by others, these protections fall short of the modern conception of human rights as articulated by United Nations declarations and even, perhaps, the US Constitution.
I have heard Scalia’s argument over and over again from Muslims in the Middle East, and the Muslim Brotherhood in particular argued in terms of a majoritarian conception of democracy. Putting aside the question of the proper understanding of religious freedom in Islam, many expressed their shock that Arab Christians did not appreciate the status they had in the sharia. To them, protection grounded in God’s word was far stronger than that determined by man’s consensus.
But Islamist Muslims — and perhaps others beside — stated that as we have demonstrated ourselves to be the majority through elections, we have the right to legislate according to our orientation. For them this meant the implementation of sharia law, within the Egyptian Constitution and legal code, variously defined. Liberal Muslims and their efforts to afford citizenship rights on the basis of positive law simply lost out.
How would Scalia respond?
A key difference, of course, is that the US Constitution does not base legislation on any particular moral code. As much as many of the Founding Fathers were infused by Christian values, Scalia was right to adjudicate based on the text itself, without reference to any higher text. In America, there is none.
But in many constitutions of the Muslim world, there is. To various degrees Islam is written in as a source of legislation and the religion of the state. This affords their jurists the chance to appeal to their understanding of sharia law, if they so choose. This understanding can be either liberal or conservative, but it is not controversial in itself.
Would Scalia approve if a national referendum passed an amendment to mandate, say, a Christian religious test for public office? Any state or national law would be in clear violation of the constitution, but in this scenario the democratic majority would succeed in altering our nation’s charter, complicating also the Bill of Rights.
Under the United States system of government, and under his own logic, perhaps he would be powerless to resist. But even within current First Amendment protections, it appears that minority religious rights can be restricted by popular opinion. Scalia would be clear that our constitution guards them to a great degree, and he would be among the first in defense. But within the system, perhaps, they can be degraded.
What does this speak to the situation of Christian minorities in the Middle East? Are they hostage to popular demagoguery that might threaten to subject them to second class status?
Perhaps. Civil constitutions in sovereign nation-states govern most of the Muslim world. Many of these grant citizenship rights broadly consistent with UN understandings, but also give leeway to avoid contradiction with a left-undefined sharia. The details are left to interpretation.
But in taking an issue like blasphemy law, clear majorities favor the prosecution of statements deemed offensive to religious sensibility. Freedom of religion and freedom of expression take a backseat, even when guaranteed protection in the constitution.
I do not know how to properly understand Scalia’s remark, but his advice might be clear: Campaign, lobby, and get yourself a majority. Otherwise, be thankful for the God-inspired civil and sharia protections the constitution does grant.
Legal scholars are invited to correct these impressions, but would Scalia fit well in the Muslim Brotherhood? It would be a strange cross-cultural legacy indeed.