Justice Stevens: Meet Washington and Jefferson

Retired Justice John Paul Stevens, perhaps, next to William Brennan, the worst justice in the past forty years, just released his new book titled Five Chiefs.  The book is part memoir and part history.  Stevens chronicles the first 12 justices who served on the Supreme Court and the five justice on the court that he personally knew the best during his thirty-five year service.

In an interview with Nina Totenberg on the release of the book, Stevens pushes back at the idea that the politics of Justice Thomas's wife should make Justice Thomas recuse himself in future cases on Obamacare.  Here is Stevens:

While he was on the bench, Stevens was always meticulous about recusing himself from any case in which he might even conceivably be seen to have a conflict. So what does he think about the wife of Justice Clarence Thomas publicly campaigning against the Obama health care law, and the calls from liberal groups for Thomas to recuse himself from challenges to the law?

Stevens says he is sure Mrs. Thomas is "acting in good faith, doing what she thinks is in the public interest." Nor does he think her actions have the "slightest impact" on how Justice Thomas votes. But, he adds, "one might prefer to have her less active."

Justice Stevens, however, veers on to more familiar ground in his discussion of the validity of original intent jurisprudence:

Taking on the much debated idea of original intent, the retired justice disputes the notion that anyone today can, with total clarity, know exactly what the framers intended. Nor, he argues, should that intent be the be-all and end-all of the legal analysis. He points to the First Amendment freedom of religion guarantee as an example, noting that the leaders of the country in 1789 were all Christian, and their concern was to ensure that no particular brand of Christianity got government preference.

The First Amendment's religion clause "wasn't intended to protect the Muslims or the Jewish faith or the atheists," he says. "But once we started to analyze the clause, in case after case, we developed the rules that make it perfectly clear that the principle that was adopted was much broader than the specific purpose of the draftsmen ... at the time. It's a principle that goes beyond the original intent." And that principle, he says, is that there can be no government preference for any religion, Christian or not, and no penalty for any religion or for nonbelievers either.

Unbeknownst to Stevens, the Founders' principle of religious liberty was not extended simply to denominations of Christianity.  It was open to all people of all faiths, because it was grounded upon the right of conscience.  The Founders' conception of religious liberty was built upon the natural rights philosophy that undergirds our politics.  Since all men are equal in certain natural rights by nature, one's religious beliefs do not affect one's natural rights.  Only in this sense is there a separation between church and state.  Over at Powerline, Steven Hayward takes Stevens to task for not knowing the political philosophy of the Founders:

It is hard to be more totally wrong in such a short space, both on history and on the philosophical ground of constitutional originalism.  The founders were well aware that the principle of religious liberty applied to all faiths. Apparently Stevens never read, for example, Thomas Jefferson’s Virginia Statute of Religious Liberty, which lays out the general ground for the universality of the right of conscience in worship.  But an even better example of how the framers understood their principles and the philosophical ground on which they rested is President Washington’s letter to the Jewish synagogue in Newport, Rhode Island, which succinctly explains the ground of why religious liberty extended to Jews as well as Christians. 

This is what happens when justices of the Supreme Court are alienated from the principles of the Founding.