Thursday, October 8, 2009

Scalia on Grave Markers

It's not every day that a Supreme Court Justice comments on grave markers. Today, Justice Scalia held forth on the subject and, once again, demonstrated the The History of the United States According to Antonin Scalia is made-up bullshit.

In the course of arguing that a giant cross erected in the Mojave Desert in 1934 cannot be regarded as a specifically Christian symbol, Scalia told the court that, "The cross is the most common symbol of the resting place of the dead."

Actually, that's not all he said:
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
I'm no legal scholar, but I know a thing or two about gravestones. And Scalia is talking out of his ass on this one.

Scalia is arguing that the people who erected the giant cross as a war memorial in 1934 intended it to "honor all of the war dead." They could assume that a cross would stand for all the dead, regardless of religion, because they understood the cross as "the most common symbol of the resting place of the dead" in general and war dead in particular.

This might seem obvious to Scalia, but it shows very little understanding of the history of memorials and grave markers in America.

Until the middle of the 19th century, American gravestones decorated with cross motifs were almost exclusively found on the graves of Catholics. These were not cross-shaped gravestones, but conventional, tripartite gravestones with crosses incorporated into their tympanum iconography. A handful of pre-1850 Protestant stones have crosses on them, but their rarity proves the rule. This pattern holds true for gravestones in Mid-Atlantic and Southern states as well as in New England.

There are plenty of Christian symbols on 17th- and 18th-century American gravestones (peacocks, trumpets, Bible boobs, etc.), but crosses are rarely among them.

After mass Catholic immigration in the 19th century, crosses became more common in American cemeteries. By 1900, some Protestants adopted cross motifs, but cross-decorated stones remained a minority in all but Catholic cemeteries.

When Scalia envisons cross-marked graves, he may be thinking of WWII-era cemeteries like the Normandy American Cemetery and Memorial, where acres of crosses honor the American dead. Yet, the practice of erecting government-issued marble crosses would have been unknown to veterans in 1934. Before WWII, government-issue stones were simple tablets with slightly rounded tops (pointy tops for CSA). Union soldiers' government-issue gravestones were either undecorated or embellished with a shield-shaped indentation. Confederate soldiers' government-issue stones sometimes have fat little Southern Crosses of Honor, but I've never seen one with a Christian cross.

When the Mojave cross was erected in 1934, most veterans of the Spanish-American War were still being buried under plain or shield-decorated stones. Some WWI veterans received the new style of stone — a marble tablet with a tiny cross inscribed in a circle above the vital information. Since WWII, American soldiers' families have been able to choose from an ever-expanding catalogue of religious symbols for government gravestones.

My point is that the people who erected the cross in 1934 did not build it because it was a generic symbol that had been used to honor American dead since the days of William Bradford. They would have understood it as a specifically Christian icon. Justice Scalia's contention that the cross is "the most common symbol of the resting place of the dead" has nothing to do with history and everything to do with his biases as a Catholic who came of age after WWII. I guess I should not be surprised — Justice Scalia has long been a member of the "my nostalgia is an accurate representation of historical experience" school of history.

The ACLU's lawyer, Peter Eliasberg, had a nice little comeback for Scalia's stupidity.
Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
While Mr. Eliasberg scored some points and is mostly correct, I have seen Christian imagery on Jewish gravestones in Newport.


kfrancher said...

Wow! That's quite a pointed comment about some obscure matter. Obviously, you just don't like his politics. You could have just said "You lie!". That seemed to get some attention a couple weeks ago.

But, in general, who cares what a supreme court justice has to say about a grave marker?

By the way, is there a real story about the grave marker? That sounds interesting to me.

Caitlin GD Hopkins said...

It's true that I don't like his politics, but I could live with that. What I hate hate hate hate hate is his theory of history. Justice Scalia is a firm believer in Constitutional Originalism, and, at the same time, a firm believer in making up things about history. The two make for a potent one-two punch: he says that he is basing his decisions on a solid respect for the past, unlike wishy-washy liberals, but his "past" is a fairyland.

Of course, everybody uses the past to suit their purposes, but not everybody gets to enshrine his or her personal biases in Supreme Court decisions and call them history.

As for who cares — well, me, obviously :) As for everyone else — it ain't called "Vast Public Indifference" for nothing.

ExecutedToday said...

Seems like fair area for commentary in a blog about grave markers; actually very welcome and necessary, whatever the indifference. Scalia's an intellectual bully who has made a career - and legal precedent - dressing unchallenged middlebrow chauvanism up in scholarly finery.

Anyway, crosses + stars of David imagery also appears on some (possible) headstones of conversos/crypto-Jews. Since this was Mexican territory, the cross part would obviously be Catholic...

J. L. Bell said...

I thought this posting was an excellent and most appropriate use of knowledge about the past to illuminate a current controversy.

kfrancher said...

Talk about hitting a nerve!

I enjoyed your response; very nicely worded. Your original post left something to be desired in my opinion, but it is your blog and you may be as doctrinaire as you like and, I suppose, use whatever level of vocabulary you prefer.

Now, what about the historical significance of the marker?

Charles said...

This is hardly a "small" issue. This is the most recent SCOTUS test of the separation of church and state. Scalia's comments are trying to argue that this monument doesn't equate to establishment.

Robert J. said...

As for me, I think it would be pretty cool to have a 20-foot-high winged skull on top of a mountain.

Caitlin GD Hopkins said...

As far as I know, the marker in question was erected on Federal land by the VFW in 1934 as a memorial to the "Dead of All Wars." In 1999, the NPS disallowed a Buddhist shrine on the same site. Subsequently, an employee of the NPS brought suit for a violation of the first amendment. The case seems to hinge on whether the land was/is federal land.

That's all I know, since I'm getting my info from the major media outlets just like everyone else. I don't have any particular insight into the legal merits of the case, which is why I limited my remarks to gravestone-related issues.

I don't think that it's particularly doctrinaire to point out that Justice Scalia was wrong on the facts in this case, or that it is inappropriate to use no-no words like "bullshit" in calling him out. He wasn't lying — he was bullshitting. That is, he expounded on a topic about which he knew very little, but tried to pass off his ignorance as expertise. Other people of my generation might use the term "fuckery," in this situation, but my mother-in-law reads this blog (my own mother does too, but she has never said anything as dainty as "bullshit" in reference to Justice Scalia).

allenh said...

Anything negative you say about Antonin Scalia will be fine with your mother-in-law (and father-in-law).