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Law in the Ruins

by James G. Bruen, Jr.

 

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness." Using these words that are so close to enunciating a principle of the natural law, the thirteen united States of America recognized that all men are created equal and declared independence from England.

THE NATURAL LAW

The natural law is the law written in our hearts and our souls, our very being, by God. Romans 2:14-15. The natural law, says St. Thomas Aquinas in his Summa Theologica, is "nothing else than the rational creature's participation in the eternal law." It is called natural law, says John Hardon, S.J. in his Modern Catholic Dictionary, because all are "subject to it from birth," because it is only those "duties … derivable from human nature itself," and because "its essentials can be grasped by the unaided light of human reason."

Father Hardon points out that, "while the object of natural law is the whole moral order as knowable by human reason," some obligations of that law are more difficult to realize than others. "Primary precepts are most easily perceived, as for example, that good must be done and evil must be avoided. Secondary precepts are also available to most people, such as the prescriptions of the Decalogue." Reason can also attain "more refined conclusions" from those precepts, but "with varying degrees of difficulty, such as the evil of contraception or the fact that direct abortion is always forbidden."

Though the word slavery was not used in the Constitution of the United States, slavery's continued existence reflected the contradiction and compromise inherent in the founding of this country. The positive law, the Constitution enacted by men, did not reflect the natural law to which the Declaration of Independence had appealed. The Civil War did not resolve that contradiction. Nor did the constitutional amendments adopted in its wake. They eliminated slavery based on the color of a person's skin, but America adopted the legal fiction of separate but equal that treated a man as a second-class citizen based on the color of his skin. That fiction was abandoned almost a century later though not without anomalies and resistance that linger today.

As our positive law came closer to the natural law in the 1950s and 1960s by recognizing the equality of men before the law despite the different colors of their skin, it moved away from it in the area of human sexuality and procreation.

It may seem paradoxical that positive law would approach the natural law on some issues while retreating from it on others. To understand how this could occur, let's look at George P. Fletcher's Our Secret Constitution: How Lincoln Redefined American Democracy, which the American Association of Publishers selected as the best book published on law in 2001.

Professor Fletcher, the Cardozo Professor of Jurisprudence at Columbia University School of Law, is a Jew who rejects the natural law approach. In Our Secret Constitution, he argues that the American legal system should instead reflect Talmudic thought by which a lawgiver's intent is irrelevant, whether the lawgiver be God or the framers of the Constitution.

I never cease to be amazed that legal scholars, particularly in the United States, continue to be confused about the relevance of the framers' original intent. Secular legal systems could not possibly be more demanding, more deferential to authority, than religious cultures that believe that their binding legal principles were declared by God. Yet, a story from the Talmud beautifully illustrates the folly of invoking original intent in a dispute about the meaning of God's commandments. A group of rabbis were engaged in a debate about whether a particular earthenware oven was kosher or not. One of them, Rabbi Eliezer, said no; the other rabbis said yes. Rabbi Eliezer proceeded to invoke a variety of fantastic signs to support his view: at his command, a carob tree was uprooted and flew across the field, a stream flowed upstream, and the walls started to collapse before they were halted. The rabbis were not impressed by these signs. Then Rabbi Eliezer, desperate and alone, invoked the argument of original intent: "If I am right, let heaven be the proof." A heavenly voice then proclaimed: "How dare you oppose Rabbi Eliezer, whose views are everywhere the law." Rabbi Joshua arose and quoted Deuteronomy: "It is not in Heaven." Rabbi Jeremiah explained the reference: Ever since the Torah was given at Mount Sinai, "we pay no attention to heavenly voices, for God already wrote in the Torah at Mount Sinai." The point is that once the language is released and given to jurists to fashion to the needs of their time, the task of lawgivers is finished. Their intentions and desires cannot rule — either from the grave or from heaven.

Professor Fletcher adds,

The story concludes, in one version, with an encounter between Rabbi Nathan and the prophet Elijah. Rabbi Nathan asked, "What did God do at that moment when Rabbi Joshua proclaimed 'it is not in Heaven'?" Elijah answered, "God laughed and said: 'My children have defeated me, my children have defeated me.'"

What stands in the way of man's ignoring the will of God as Fletcher's Talmudic analysis advocates? Fletcher answers pointedly: "Pope Pio Nono (Pius IX) retreated within the walls of the Vatican and in 1870 his council declared the infallibility of his office on matters of faith and morals. This declaration that we can know absolute truth became a model for all the ideological extremists who followed on the right and on the left."

For Fletcher, the declaration of papal infallibility is the underlying problem because it assumes there is a natural law, a Truth that we can know, and proclaims the pope can expound it. This, Fletcher says, is the model for all ideological extremists. So, papal infallibility is the model for the Soviets, the Nazis, Mao, the SDS, the Weathermen, Neo-Nazis, Islamic extremists, White Supremacists, and Black Panthers, etc.?

Where does Fletcher believe we should look, if not to natural law and the will of God? "The truth lies in what works, in the validation of experiences, not in the abstract requirements of ideological logic," says Fletcher. "The pragmatic legal mind rushes to reject moral extremes in favor of some vague standard of what is good for everybody, all things considered."

Truth "lies in what works." This is the American virtue: pragmatism; whatever works is good and true. It is the rejection of natural law, the rejection of morality, and the rejection of Truth. It is ingrained in the American legal and political systems.

"The pragmatist tells a man to think what he must think and never mind the Absolute," notes G.K. Chesterton in Orthodoxy. "But precisely one of the things that he must think is the Absolute. This philosophy, indeed, is a kind of verbal paradox. Pragmatism is a matter of human needs; and one of the first of human needs is to be something more than a pragmatist."

Pragmatists denigrate the natural law approach but nevertheless often appeal to a "higher" law, whether equality, feminism, gay rights, or some other "right," when bludgeoning those who respect the natural law. Pure pragmatism encourages any stratagem in the service of making an ideology succeed. The ideology justifies the means. A pragmatism that refuses to acknowledge the natural law results in laws that sometimes conform to the natural law, such as laws against murder and rape, and that sometimes don't, such as our laws on abortion.

In Planned Parenthood v. Casey, 505 U.S. 833 (1992) the Supreme Court explained its contraception and abortion decisions thus: "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." And then: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." The Court trotted out the passage again in 2003 in Lawrence v. Texas, 539 U.S. 558, to rationalize constitutional protection for anal sodomy between men.

MYSTERY OF LIFE PASSAGE

The mystery of life passage reflects post-modernist thought: We create our own reality. It's gibberish: a fig leaf that hides and tries to make more palatable the Court's Nietzschean imposition of its will on the less powerful. The Justices were pragmatic: they wanted to legalize abortion and homosexual sodomy, so they did what it took.

Not all people are as articulate or as open as Fletcher about the danger that the Pope, the Church, the natural law, and, indeed, Truth, represent to them. But some are even blunter.

In Aborting America (1979), Bernard Nathanson details the successful efforts of Lawrence Lader and himself, two Jews from New York City, to legalize abortion in New York in the late 1960s. To do so, they chose the Catholic bishops as their foe. Lader insisted that to get abortion legal, "we've got to bring the Catholic hierarchy out where we can fight them. That's the real enemy. The biggest single obstacle to peace and decency throughout all of history." Lader's comment was not a casual observation, but a conscious, bitter approach. "He held forth on that theme for most of the drive home," recounts Nathanson. "It was a comprehensive and chilling indictment of the poisonous influence of Catholicism in secular affairs from its inception until the day before yesterday. I was far from an admirer of the church's role in the world chronicle, but his insistent, uncompromising recitation brought to mind the Protocols of the Elders of Zion. It passed through my mind that if one had substituted 'Jewish' for 'Catholic', it would have been the most vicious anti-Semitic tirade imaginable."

Lader's approach required dividing the Catholic bishops from their flock. "[E]very revolution has to have its villain," said Lader. "Now, in our case, it makes little sense to lead a campaign against unjust laws, even though that's what we really are doing. We have to narrow the focus, identify those unjust laws with a person or a group of people." Who? "Not just all Catholics. First of all, that's too large a group, and for us to vilify them all would diffuse our focus. Secondly, we have to convince liberal Catholics to join us, a popular front as it were, and if we tar them all with the same brush, we'll just antagonize a few who might otherwise have joined us and be valuable show pieces for us. No, it's got to be the Catholic hierarchy."

Lader's tactic was outrageous, but Catholics were not blameless either. They were complicit by undercutting Church teaching on contraception and abortion. For example, Doctor John Rock, a Catholic who taught at Harvard Medical School, was one of the leading clinical researchers who developed the pill. And, in From Patriotism to Pluralism: How Catholics Initiated the Repeal of Birth Control Restrictions in Massachusetts, excerpted and adapted in Boston College Magazine, Seth Meehan documents that Richard Cardinal Cushing of Boston facilitated the repeal of Massachusetts's ban on contraceptives in the mid-1960s. When the Massachusetts legislature voted to end the ban on contraceptives, it did so with the approval and assistance of the Boston Archdiocese in concert with the Planned Parenthood League of Massachusetts. In contrast, Catholic teaching insists a government should guard morality by protecting the family against contraceptives because they are contrary to the natural law. Humanae Vitae, 23 (1968) appeals to Public Authorities: "do not tolerate any legislation which would introduce into the family those practices which are opposed to the natural law of God."

JULY 1964

In July 1964, about nine months after the assassination of John F. Kennedy, Fr. Robert Drinan, Fr. Richard McCormick, Fr. Charles Curran, Fr. Giles Milhaven, other Catholic theologians, and at least one bishop went to the Kennedy compound in Hyannisport to meet with Ted and Bobby Kennedy to discuss the position a Catholic politician should take on abortion.

Let's listen to Giles Milhaven, a Jesuit who later left the priesthood and taught at Brown University, describe it at a 1984 meeting of Catholics for a Free Choice:

I remember vividly. Other theologians and I were driving down Route 3 to Cape Cod, with Bob Drinan at the wheel. We were to meet with the Senators Kennedy and the Shrivers at their request. I remember it vividly because the traffic lanes were jammed and halted, presumably because of an accident ahead, and Bob Drinan drove 60 miles an hour down the breakdown lane. Despite my misgivings each time we swept around a curve, we theologians arrived safely at the Kennedy compound.

The theologians worked for a day and a half among ourselves at a nearby hotel. In the evening, we answered questions from the Kennedys and the Shrivers. Though the theologians disagreed on many a point, they concurred on certain basics ... and that was that a Catholic politician could in good conscience vote in favor of abortion [and that] in certain situations abortion is morally licit and may even be obligatory.

Anne Hendershott, The Politics of Abortion, 10-11.

We can hardly claim legalized abortion was foisted on an unsuspecting Catholic Church when prominent clergy were working surreptitiously to facilitate the change years before Lader and Nathanson undercut New York's laws and a decade before Roe v. Wade. Moreover, Justice Brennan, the only Catholic on the Supreme Court when it decided Roe v. Wade, was stridently pro-abortion, lobbying the pro-abortion position to the other Justices.

Once, when there was unrest and rioting on a Pacific island, I asked its former bishop, an American missionary, why the Church seemed so weak there. His answer? We do a poor job of evangelization.

The same is true in the United States. We often do not propound the truth that is Catholicism. We keep its light under a bushel basket. We conform ourselves to the American Way. For example, in our bishops' public battle with the Obama Administration over its mandate that health insurance policies cover contraception, the bishops' chosen battleground is the First Amendment's guarantee of religious freedom. They want to fight the battle on American principles rather than on Church teaching. The beauty and truth of the Church's teaching on human sexuality, marriage, contraception, and large families is treated as incidental to the battle, where it is considered at all. The binding nature of natural law on all, not just Catholics, is all but ignored. The Church in America seems to treat Church teaching on contraception as an embarrassment, an atavistic holdover from medieval times.

"We have gotten gun-shy," Cardinal Timothy Dolan told the Wall Street Journal, "in speaking with any amount of cogency on chastity and sexual morality." He dated this diffidence to "the mid- and late '60s, when the whole world seemed to be caving in, and where Catholics in general got the impression that what the Second Vatican Council taught, first and foremost, is that we should be chums with the world, and that the best thing the church can do is become more and more like everybody else."

The "flash point," the New York archbishop said, was Humanae Vitae, which "brought such a tsunami of dissent, departure, disapproval of the church, that I think most of us — and I'm using the first-person plural intentionally, including myself — kind of subconsciously said, 'Whoa. We'd better never talk about that, because it's just too hot to handle.' We forfeited the chance to be a coherent moral voice when it comes to one of the more burning issues of the day."

The Church in America seems gun-shy on many issues: the usurious economy, American militarism, gluttony, pornography, etc. Of what worth is a civil law guarantee of free speech or of freedom of religion if Catholics — or their bishops — decide we better not talk about hot issues? The Church often seems more intent on conforming to American mores rather than transforming them. It is disconcerting to hear the Church criticize an order that it pay for contraceptives while remaining silent on the evil of using them.

"Doesn't the church have a problem conveying its moral principles to its own flock?" asked the Wall Street Journal. "Do we ever!" replied Cardinal Dolan "with a hearty laugh." I suspect it was a nervous laugh, given the possibility that the bishops' silence may make the hereafter "too hot to handle" for them.

The Obama Administration, not the Church, wants the battleground to be contraception — the so-called war against women. Downplaying moral principles, the bishops insist the battle is "not about access to contraception," nor about "'banning contraception,' when the U.S. Supreme Court took that issue off the table two generations ago." United for Religious Freedom, A Statement of the Administrative Committee of the United States Conference of Catholic Bishops, March 14, 2012.

Notre Dame President Fr. John Jenkins used a similar but more obsequious tack to explain the university's lawsuit against the Obama Administration over the mandate:

Let me say very clearly what this lawsuit is not about: it is not about preventing women from having access to contraception, nor even about preventing the Government from providing such services. Many of our faculty, staff and students — both Catholic and non-Catholic — have made conscientious decisions to use contraceptives. As we assert the right to follow our conscience, we respect their right to follow theirs. And we believe that, if the Government wishes to provide such services, means are available that do not compel religious organizations to serve as its agents.

So the Church in America focuses not on morality but on lobbying and coalition building and lawsuits. But the Obama Administration wants to focus on contraception. Why? Because, like Archbishop Dolan, it knows Catholics are poorly catechized? Because it thinks Catholics like Father Jenkins don't care whether people form their consciences properly or engage in sinful activity? Because, like Lader and Nathanson, it wants to drive a wedge between the laity and the bishops — even if that wedge is illusory as the bishops themselves have no coherent moral voice?

SCRIBBLING

Scribbling for the New York Times, Gary Gutting, a Catholic who teaches philosophy at Notre Dame, asserted that a chasm exists between the laity and the episcopacy, to the extreme of asserting that, despite contrary suggestions from the bishops, the Church no longer teaches that contraception is sinful:

In our democratic society the ultimate arbiter of religious authority is the conscience of the individual believer. It follows that there is no alternative to accepting the members of a religious group as themselves the only legitimate source of the decision to accept their leaders as authorized by God. They may be wrong, but their judgment is answerable to no one but God. In this sense, even the Catholic Church is a democracy.

But, even so, haven't the members of the Catholic Church recognized their bishops as having full and sole authority to determine the teachings of the Church? By no means. … Most Catholics … now reserve the right to reject doctrines insisted on by their bishops and to interpret in their own way the doctrines that they do accept. This is above all true in matters of sexual morality, especially birth control, where the majority of Catholics have concluded that the teachings of the bishops do not apply to them. …

The mistake of the Obama administration — and of almost everyone debating its decision — was to accept the bishops' claim that their position on birth control expresses an authoritative "teaching of the church." … The bishops' claim to authority in this matter has been undermined because Catholics have decisively rejected it. The immorality of birth control is no longer a teaching of the Catholic Church. Pope Paul VI meant his 1968 encyclical, "Humanae Vitae," to settle the issue in the manner of the famous tag, "Roma locuta est, causa finita est." In fact the issue has been settled by the voice of the Catholic people.

In a democratic society, the teaching of the Catholic Church is subject to majority vote, which also determines morality? In a democracy, anything is morally justified if the majority approves? Genocide? Anti-Semitism? Usury? Rape? Just wave the wand of public approval and the Seven Deadly Sins become the Seven Divine Virtues? Analogously, the teaching of the Church and the morality of an action are determined by the dictator in authoritarian countries, or by the Communist Party?

Professor Gutting's approach is silly. All he has noticed, really, is that Catholics are sinners and that contraception is a widespread sin. But his approach passes for philosophy at Notre Dame and perhaps reflects a prevailing but incoherent belief of Catholics in America.

Can the state properly infringe upon religion? Of course it can. Does the First Amendment prevent all infringement on religion? Of course not. Can the state, for example, make polygamy criminal even though Mormons believe it a religious duty? The Supreme Court upheld a federal law outlawing polygamy in federal territories in Reynolds v. United States, 98 U.S. 145 (1878) (though I'd hesitate to predict how it would decide a similar case today), saying: "Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?"

So why can't federal law make a religious institution's failure to provide insurance coverage for contraception or abortion punishable by fine?

NOT AN UNLIMITED RIGHT

The Catholic Church teaches that religious freedom "is not of itself an unlimited right;" just limits on its exercise must be politically prudent, accord with the common good, and be ratified through legal norms "consistent with the objective moral order." Compendium of the Social Doctrine of the Church, 422. The Church thus insists that restrictions must conform to the objective moral order; they must conform to the natural law. In contrast, today's American legal and political system in practice denies the existence of an objective moral order. In the American system, conformity of the positive law to the natural law now occurs haphazardly, by happenstance. A mandate that a religious institution — or, indeed, any institution — must provide insurance coverage for contraception or abortion does not conform to the objective moral order, while a ban on Mormon or Moslem polygamy or a ban on Hindu suttee does.

Political authority "must be guided by the moral law [and] exercised within the context of the moral order." Id., 396. As long as Catholics are exercising political rights within a system that often disregards the moral order and natural law, favorable and proper results will be sporadic. That does not mean Catholics should not assert civic rights or be active in the political process: Saint Paul asserted his rights as a Roman citizen. Indeed, we should strive to bring positive law into congruence with the natural law. But we must not exalt our civic rights or the political process such that they become or seem more important than the Faith, the natural law, or Truth.

Lawrence Lader remained bitterly anti-Catholic all his life, even suing the Internal Revenue Service unsuccessfully to revoke the Church's tax exemptions. In contrast, Bernard Nathanson, who presided over 60,000 abortions, including performing one that killed his own child, repented and converted to Catholicism.

Our solution must be first and foremost Catholic. As individuals and as a Church, we must root out sin in our lives and cultivate virtue. We must convert America, not bludgeon her into political submission. When America's heart changes, so will its appreciation of natural law, the Church, and the role of the pope. So, catechize Catholics — laity and clergy alike. Pray for your enemies, and evangelize. Go forth, tell the nation the Good News.CW

James G. Bruen, Jr. writes frequently for Culture Wars. 

This article was published in the September 2012 issue of Culture Wars.

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