Caroline Mala Corbin (University of Miami School of Law) has posted Justice Scalia, the Establishment Clause, and Christian Privilege (First Amendment Law Review, Vol. 15, 2017) on SSRN. Here is the abstract:
Justice Scalia had an unusual view of the Establishment Clause. According to Justice Scalia, the principle that the government can never favor one religion over another is “demonstrably false.” He maintained that given the history and traditions of this country, the government could, consistent with the Constitution, express a preference for Christianity (or perhaps Judeo-Christianity) by, for example, “honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.” Indeed, Justice Scalia thought that the government’s failure to do so expressed hostility to religion.
This Essay argues that Justice Scalia’s view of the Establishment Clause exemplifies Christian privilege. It identifies three key insights from critical race studies and its analysis of white privilege: (1) whites enjoy certain unearned privileges, including the fact that whiteness is the unstated racial norm; (2) these privileges are often invisible to those who possess them, and (3) the loss of this privileged position is often experienced as hostility. These insights are then mapped onto Justice Scalia’s Establishment Clause jurisprudence as well as his originalist theory of constitutional interpretation more generally.
Here are some excerpts that extend the "White Privileges" critique to originalism:
In closing, I want to suggest that Justice Scalia’s originalist approach to the Constitution is itself privilege in action. While originalism does not neatly map onto white privilege, it does share with it the false claim to objectivity and the tendency to reinforce a status quo that favors the privileged. As an initial matter, a theory of constitutional interpretation where the scope of constitutional protection is pinned to a time rife with hierarchies based on race, religion, sex, etc., is likely more appealing to those who have historically been privileged along these dimensions.145 For the privileged, adopting a constitutional theory that reinforces their privileged position may well be a feature and not a bug.146
Justice Scalia would have argued that he espoused originalism not because it benefits the privileged but because it curtails judicial discretion. Without it, judges could impose their own personal preferences onto constitutional law. Instead, originalism forces judges to interpret the constitutional by relying on something objective, namely the original understanding or original public meaning. It just so happens that in the case of the Establishment Clause, originalism yields a doctrine that countenances government sponsored Judeo-Christianity.
But this claim to objective constitutional interpretation is as spurious as whites’ claim that their perspective is objective.147 A full account, which would include the many different theories of originalism that originalists may choose from,148 as well as the indeterminancy of history,149 is beyond the scope of this Essay, but I will mention two reasons. First, Justice Scalia did not always apply an originalist theory.150 He was adamant about its necessity for the Establishment Clause, and would have overruled established precedent to do so.151 In contrast, he did not mention originalism, or deferred to precedent, in other areas. For example, he never acknowledged in affirmative action cases “evidence suggesting that the Framers and ratifiers of the Equal Protection Clause did not expect it to be applied to bar race-based programs for the benefit of racial minorities.”152 In fact, Justice Scalia’s use of originalism was so inconsistent some scholars have concluded that he was not really an originalist.153
Second, when Justice Scalia did rely on an originalist approach, the strictness with which he applied it varied.154 For example, when interpreting the Second Amendment, he rejected as “frivolous” the idea that the Second Amendment protects only the guns that existed at the time of the founding.155 Because the types of guns have significantly changed, so should the scope of the Second Amendment.156 When interpreting the scope of the Establishment Clause, however, Justice Scalia maintained that the government prayers to God that existed at the time of founding are still perfectly constitutional.157 Yet prayers that might have been considered constitutional at the founding because they captured everyone’s beliefs no longer do because of significant changes in the country’s religious composition.158 We are, after all, “a vastly more diverse people than were our forefathers.”159 But although Justice Scalia insisted that the originalist interpretation must take into account changes in the country’s gun composition, he rejected the argument that the originalist interpretation must take into account changes in the country’s religious composition.160
Thus, even though Justice Scalia claimed that originalism curtailed his discretion, and that his conclusions were the result of objective decisionmaking, they were not.161 I am not arguing that Justice Scalia intentionally exploited originalism’s indeterminacy in order to achieve his desired outcome all while declaring his personal preferences played no role.162 After all, many whites truly believe that their conclusions about race— conclusions that confirm their privileged status—are the result of objective decisionmaking too. Nevertheless, Justice Scalia’s originalism allowed him to claim objectivity while safeguarding Christianity’s privileged status.
This criticism is not directed at originalism, but is instead directed at Justice Scalia. The argument is not that originalism is privilege in action, but instead that Scalia's inconsistent application of originalism exemplifies privilege. Footnote 149 does generalize the critique, making the following claim:
Often there is no fixed “general understanding” or “public meaning” waiting to be discovered. Thus, the claim to determinancy is illusory.
The sources that follow discuss the indeterminacy of history, but none of them discuss the most sophisticated academic versions of originalism or the best developed versions of originalist methodology. See, for example, Originalist Methodology.
Of course, many contemporary originalists affirm that the original public meaning of the constitutional text underdetermines some constitutional questions. Where the text is vague or opened textured or where ambiguities cannot be resolved by contextual disambiguation, there may be "construction zones"--where the development of constitutional doctrine is not fully determined by original meaning. Nonetheless, a very good case can be made that the determinate provisions (including much of the hard-wired or structural constitution) and the core of settled meaning of provisions that are vague have real "bite." See William Baude & Stephen E. Sachs, Originalism's Bite.