Justice Scalia's McCreary Dissent

I've been thinking about Justice Scalia's emphasis on monotheism in his McCreary dissent. Why monotheism? My conclusion is that the change in language is political, in the following sense. Conservatives used to talk about "Judeo-Christian" tradition when arguing for non-preferential and other non-separationist theories. In other words, conservatives used to argue that the Establishment Clause does not prohibit state-sponsored invocations of our Judeo-Christian tradition(s). Now, why did they previously invoke the term "Judeo-Christian"? Because it didn't exclude Jews. No more arguments that "we are a Christian nation." Instead, Judeo-Christian.

Well, some of you may have noticed that we are fighting with some folks right now who happen to be, well, Muslim. And one thing Muslim enemies of the U.S. like to say is that the U.S. is anti-Islam.

One way to address that kind of rhetoric is to stress the commonalities between Judaism, Christianity, and Islam. I'm sure you've heard this sort of thing by now.

Now, what's a good, overarching, one-word term for those commonalities? Monotheism. So Scalia's opinion uses monotheism to include Muslims under the Establishment Clause's non-prohibition of our monotheistic traditions. That's my take--it's "Judeo-Christian," one better.

But isn't this just ridiculous, on its face? Does any reader of this blog really believe that the then-living European white males in Philadelphia in the hot summer of 1787 meant to say that Jews, Christians, and Muslims share a common tradition of monotheism the recognition of which doesn't offend the Establishment Clause? That Gunning Bedford understood the term "God" to also mean Allah? That Gouvernor Morris considered "Musselmen" to be under the same general category as Presbyterians or Congregationalists? That Jemmy Madison believed that "the Turk" prayed to the same God as Virginia Baptists?

My sense is that, if one wants to argue for an originalist understanding of non-preferentialism, then Muslims are on the same side of the line as atheists and polytheists--the latter also being a group Scalia says can be excluded from consideration in public invocations of our monotheistic tradition (sorry Hindus). BTW, so are Jews, almost certainly (the Framers wouldn't have said "Christian nation" if they had been asked?). That's why a genuine original understanding of non-preferentialism isn't tenable, even for Justice Scalia. (Tenable in a political sense.)

To include Muslims under that umbrella, one must invoke--dear Lord!--the Living Constitution.