April 5, 2004

Constitutional thrills. For me, apparently, daylight savings means waking up in the middle of the night and seeing that the time is close enough to a reasonable hour to go ahead and get up. The NYT is here, I can check out the overnight activity on my blog. Hmm... someone came here after doing a Yahoo search for "this kind of very comprehensive supreme being, Seeger-type thing," a phrase Justice Breyer used to refer to God in the Newdow oral argument. This entry of mine is one of only three results for that. I'm surprised more people haven't commented on Breyer's striking locution.

One of the search results is just a reprint of Leon Wieseltier's article in The New Republic, "What America Can Learn From Its Atheists."
Citing United States v. Seeger from 1965, though he might have illustrated his speculation more vividly with the historical precedent of the Cult of the Supreme Being in revolutionary Paris, Breyer proposed that such a faith "in any ordinary person's life fills the same place as belief in God fills in the life of an orthodox religionist," and so "it's reaching out to be inclusive"--so inclusive, in fact, that it may satisfy a non-believer such as Newdow. Breyer suggested that the God in "under God" is "this kind of very comprehensive supreme being, Seeger-type thing." And he posed an extraordinary question to Newdow: "So do you think that God is so generic in this context that it could be that inclusive, and if it is, then does your objection disappear?"

Oh, yes, life would be so much more vivid if Supreme Court Justice's would stop being so stodgy as to prefer references to their own old cases! Please cite more foreign sources, Justices, because that is way more fun ... and it gets a rise out of Scalia.

Anyway, the only thing extraordinary about Breyer's statement is the idiosyncratic syntax. The idea itself is straight out of ... oh, how tedious ... some old Supreme Court cases. But Wieseltier is jazzed up by the way Newdow did not back down, even though, obviously, since he's trying to win his case, he wouldn't. Breyer was just asking for a response to the utterly predictable argument that generic ceremonial deism doesn't violate the Establishment Clause.
Newdow's objection did not disappear, because it is one of the admirable features of atheism to take God seriously. Newdow's reply was unforgettable: "I don't think that I can include 'under God' to mean 'no God,' which is exactly what I think. I deny the existence of God." The sound of those words in that room gave me what I can only call a constitutional thrill. This is freedom.

If only more ideologues could get the opportunity to do Supreme Court arguments, more constitutional thrills could be had by all. According to Wieseltier:
Breyer was advocating the Lockean variety of toleration, according to which it would be based on a convergence of conviction, a consensus about the truth, among the overwhelming majority of the members of a society. The problem with such an arrangement is that the convergence is never complete and the consensus is never perfect. Locke himself instructed that "those are not at all to be tolerated who deny the Being of a God." The universal absolute is never quite universal. And there is another problem. It is that nobody worships a "very comprehensive supreme being, Seeger-type thing." Such a level of generality, a "generic" God, is religiously senseless.

Except that Breyer wasn't invoking Locke's idea about freeing up the discourse so the individual can search for the true answer. Breyer was talking about an invocation of God that is too bland and generic to warrant judicial intervention. What Wiesentier is calling a "problem" is the central point Breyer's argument makes: no one's version of God is being preferred. And it isn't fair to Locke either, again quite obviously. Is the person who makes the first big step toward freedom and away from repression to be raked over the coals because his step was not big enough? Should we impute a blindspot that existed in 1689 to Locke's intellectual descendants of today? That's just sophistry. The ceremonial deism idea--even though it can be criticized as encouraging the ennervation of serious religion--is valuable because it allows courts to avoid excessive intervention in small matters. That ideologues can pump up small things and make them seem all-important is very old news.

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