Catholic republic, p.16
Catholic Republic, page 16
i. Recall Justice Kennedy’s utopian (and laughable) formulation of liberty in Planned Parenthood v. Casey: “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.” One must see this as tragically influential over the last generation.
j. While today’s university students may think they invented the I’m-spiritual-but-not-religious refrain, its goes back at least as far as Gnosticism (which the Catholic Church rebuffed then too!).
k. That is to say, virtue is exercised—and eventually perfected—in the action by which it was formed (to borrow a famous Aristotelian phrase).
l. Thomas Aquinas took the Aristotelian idea even further when he interpreted this passage in Augustine:
“Therefore, [on account of Augustine’s rationale], human laws, by not prohibiting some sins, rightly permit them” (Thomas Aquinas, Summa Theologiae. S1, Q. 93, A. 2). Thomas then places the idea beyond any doubt. He goes on to articulate the proposition: “human laws do not by strict command prohibit every vicious action, just as they do not command every virtuous action” (Thomas Aquinas, Summa Theologiae. S1, Q. 93, A. 2). In other words, Thomas rejects activism. On the other hand, Thomas (along with Aristotle and Augustine) reject activism’s opposite, positivism, which denies all interaction between legality and morality. If the citizens, rather than judges or legislators, were the true sovereigns in republics, then morality must influence legality partially, but not completely. This requires originalism. The American founders and framers would draw on this idea in order to keep the role of each branch of the new American government small. In spite of the clear position of medieval and ancient Catholic Natural Law thinkers, the disciples of 20th century philosopher Leo Strauss asserted that positivism and presumably even originalism were born during the Enlightenment (specifically, in Machiavelli’s philosophy). This is incorrect. Nevertheless, the Straussians have been exceedingly effective at popularizing this view—called the “Modern divide”—which held that up to, but not after, the beginning of the Enlightenment, activism was the only point of view. Non-Catholics and Catholics alike in Prot-Enlight America have been deeply influenced by the false notion of this Modern divide. As such, the Prot-Enlight mainstream in America equivocates violently between the two extremes activism and positivism.
m.Aristotle’s distinction confirms that true virtue can be attained only by individuals who act morally by their own choice and habituation, not by government compulsion. Thomas Aquinas’s philosophy of law carried this even further. When we apply Aristotle’s and Thomas’s words to our laws and Constitution, it becomes clear that there must be a middle way between too strong a connection between morality and law, and too loose a connection. If the Constitution/law was properly made, and the republic is peopled by moral citizens, then the framework of laws will ultimately be moral when interpreted strictly. But judges should not substitute for a plain, original reading of the Constitution, because the original Constitution should already be sufficiently moral. Judges’ moral interpretation of law represents a radical departure from the inherent morality of republican rule by a moral people.
n. As concerns the early American republic, it is very clear that most American founders and framers wanted just such originalism. Even Alexander Hamilton, one of the Federalists who argued most fervently for a strong judiciary, mocked activism, to some extent. In Federalist #84, he calls bills of rights “aphoristic,” quipping that they would “sound much better in a treatise of ethics than in a constitution of government” (Hamilton, Alexander. Federalist #84.) Yet, in Dr. Hadley Arkes’ “Natural Law Manifesto” (appearing in the Claremont Review of Books, Fall 2011; Vol. XI, Number 4), he imputes to a line by Hamilton in Federalist #84 (“Here in strictness, the people surrender nothing…”) its perfectly opposite meaning. Dr. Arkes seeks to make the point that good government regimes should comprise treatises of ethics; Hamilton says precisely the opposite. If, as Aristotle posits, “to be a good man is not in every case to be a good citizen” (EN, 1130b29), then judges would have no basis for the anti- originalist jurisprudence that Dr. Arkes urges. In other words, even the judiciary-loving Alexander Hamilton distinguished between a judge’s proper role as interpreter of law and a moral role not properly judicial at all. Deriving from the English common law, there exist terminological nuances at the heart of American law involving two distinct types of illegality: laws against malum prohibitum and those against malum in se. Law involving malum prohibitum infractions is generally independent of morality. The evil being proscribed by this type is only “evil” in a contingent or circumstantial way. Think, for instance, about traffic laws in England and in America: the English drive on the left side of the road, while Americans drive on the right. The great majority of American laws, regulations, and ordinances are considered malum prohibitum laws. Law involving malum in se infractions, on the other hand, is generally dependent on morality. The evil being outlawed by this type of law may be called genuine moral evil: think of murder, for example, even if good men refrain from murder for moral and not legal reasons. Not coincidentally, the legal concept of malum in se is almost identical to the Catholic catechism’s concept of innate moral evil.
o. In this chapter, I’ve argued against activism, which some wise, yet mistaken, commentators have called “Natural Law jurisprudence,” a misnomer whereby judges ignore the text of the Constitution and laws in favor of their own private interpretation of morality. (You can’t just stick the words “natural law” into a phrase! Even though activism often claims the Catholic Natural Law in its title, it is actually opposed to the moral presumptions underlying self-rule.) In reality, activism or so-called “Natural Law jurisprudence” attempts to force one highly fallible judge’s morality upon citizens unwilling to accept it.
p. This is the essence of originalism: whatever is “legal” should be considered as it was originally written. And for the most part, whatever is popular should be—if you live in a true republic—what is morally right. Judges should not attempt to render laws “moral,” after they’ve been validly passed by the legislature. As America declined from being mostly Protestant to mostly secular, judges began feeling that they had to, in their rulings, “make up for” the lack of cultural morality.
q. Activism is doubly wrong, because a) activist judges are frequently incorrect in their “correction” of fairly made law (think of pro-gay-marriage judges!), and b) even if they are correct, they cannot by intentional misinterpretation force morality upon an utterly immoral citizenry which has willfully legalized immorality. In a true republic, if founded and framed correctly, the greatest driver of morale and morality should be a robust, Catholic Natural Law popular culture. The people should insist on laws which are consistent with a Constitution consisting of the crypto-Catholic rights of life, liberty, and property (thereby enabling the citizens to discharge their duties in private life). Look at the tale of the declining U.S. Constitution: within two centuries of its inception, an increasingly relativist populace reversed its cursory subsidiarity and inverted the meaning of the life, liberty, and property rights that it guaranteed. Here and there, progressive judges accelerated the process of moral devolution. But, it is plainly evident by the people’s gradual acceptance of such judicial tyranny that they were not as opposed to it as they originally seemed.
r. Famous commentators like W.D. Ross have long noted Aristotle’s developing and somewhat ambivalent position on the relation between legality and morality throughout the Nicomachean Ethics. But Aristotle’s final position definitely equated to something much like originalism, rather than the activism with which he begins the treatise.
Citations
1. www.ethicsmorals.com
2. Garrigou-Lagrange, R. Beatitude: A Commentary on Saint Thomas’s Theological Summa, Ia – IIae, qq. 1-54.
CreateSpace Independent Publishing Platform. May 26, 2016.
3. http://www.patheos.com/blogs/uncommongodcommongood/2014/10/aristotle-and-luther-on-justice-virtue-and-the-reformation-of-values/
4. Pope Benedict XVI. Opening homily at the 2005 papal conclave.
5. It is, of course, unproblematic to acknowledge that people really do choose a system of ethics—as long as one maintains the logically necessary conclusion that all systems but one must be errant.
6. Hobbes, Thomas. Leviathan.
7. Charles Carroll letter to James McHenry, November 4, 1800.
8. There is one and only one solution to moral relativism: morality must be universally disclosed and recognized within nature. The American idea of liberty (which is available, as a function of the Catholic Natural Law, even to non-Christians) must at its core connect to Catholic moral theology, if American popular morality is to be redeemable at all.
9. Catechism of the Catholic Church, n. 1734.
10. Bouyer, Louis. The Spirit and Forms of Protestantism. London: Harvill Press Ltd., 1956. Page 176.
11. Hamburger, Phillip. Separation of Church and State. Page 66.
12. Pope John XXIII. Pacem in Terris, April 11, 1963, discusses this at length.
13. Man is actually only partly free from sin to the extent that God has given him a prime liberty in the form of his intellect. To allege that man is wholly free from sin would be to posit the heresy of Pelagianism—the very existence of which ought to prove to Protestants that the Catholic view of sin is not as pagan as many of their luminaries have assumed.
14. Aristotle. Nicomachean Ethics (EN). VI, vii, 7.
15. EN VI, v, 1.
16. Luther, Martin. The Bondage of the Will, translated by J.J. Packer and O.R. Johnston. Baker Academic Publishing; July 2012.
17. Calvin, John. (In. Part II, 8, 1.) But remember, Calvin was deeply confused as to whether or not man’s conscience could intelligibly discern morality. In certain other places, he wrote as if he were a Catholic affirmer of the Natural Law: “As a seed of religious awareness is implanted in the heart of man so that he may recognize and honor his Lord, so conscience is given him that he may sufficiently distinguish between right and wrong. The activity and insights of conscience are the language in which the law of nature is couched.” (In. II, 2, 22.) Wilhelm Niesel writes that, for Calvin, “The law of nature has only one purpose: namely, to make man inexcusable before God.” (Niesel, Wilhelm. The Theology of Calvin. James Clarke & Co. Publishers; 1956. Page 102.) In other words, man’s conscience for Calvin is oriented toward recognizing his inevitable moral failure rather than discerning actions which may lend to his eventual moral conversion, a proposition which falls short of affirming what is meant on any construction of the free will component of the Natural Law. Contrast this Calvinist view sharply with CCC n. 1734, as cited above: “[Freedom] makes man responsible for his acts to the extent that they are voluntary.”
18. The rejoinder commonly offered by the Puritans and other Protestants is flatly insufficient: as noted above, they spuriously divide liberty into political and theological sorts. According to this bizarre rejoinder, man somehow deserves relative freedom from the dominion of other men, even though, Protestantism insists, man can never enjoy bona fide liberty or know what to do ultimately with his political liberty! At the early Reformation Council of Dort, recall, it was agreed that mankind is incapable of governing even day-to-day affairs, let alone important theological ones. Because the Protestants suggest a political freedom not in conformity with an orientation at the Good—true liberty—then that freedom must logically be, at bottom, license, which is completely disconnected from the goal of human life.
19. http://www.patheos.com/blogs/uncommongodcommongood/2014/10/aristotle-and-luther-on-justice-virtue-and-the-reformation-of-values/
20. Enlightenment epistemology, varied as it was, severed the human intellectual apparatus from knowing anything lasting about reality. In the 18th and 19th centuries, Kant became the favored philosopher on the continent of Europe; Locke was already the favored philosopher in England and America. In the West, both of these Prot- Enlight philosophers comprised a tremendous influence against the intelligibility of nature morally, scientifically, metaphysically.
21. Recall from the Introduction (Chapter Zero) and Chapter One how the Enlightenment men, heroes of the American founders, strove to defend their position. Thinkers like Locke, Newton, Hobbes, and Bacon subscribed to a strange and utterly false view of metaphysics called “corpuscular reductionism,” or “atomistic reductionism,” which reduced all human activities to physical principles, non-principles. According to these paradoxical materialist principles, all human activities reduce to the observable, material appetites that man manifests in his basest state. Accordingly, human choice, for these Enlightenment thinkers, was a mere illusion of the human brain—just as it was in a slightly different sense, for the Protestants. Man, being a mere animal, does not actually choose between any two options; he simply and mechanistically defers to that which is more compelling to his senses.
22. Boethius, Anicius Manlius Severinus. The Consolation of Philosophy. Trans. By W.V. Cooper. Published by the Ex-Classics Project, 2009.
23. http://www.theimaginativeconservative.org/2012/09/happiness-aristotle-and-the-american-founding.html. “In another, his famous letter of 1825 to Henry Lee, [Jefferson] claims the ideas of the Declaration to be from Aristotle, Cicero, Locke, and Sidney.” (That is, two legitimate Natural Law thinkers, and two phony ones.) Dr. Bradley Birzer mainly points in the opposite direction in this article—that Jefferson did not openly recur to Aristotle in the Declaration. This Jefferson letter of 1825 seems as puzzling to him as to me, and he does insinuate that the founders couldn’t avoid indirect reference to Aristotle.
24. EN 1103b.
25. Isaiah 5:20.
26. John 18:38. xxvii EN II, ii, 6. xxviii^ EN III, vi, 1.
29. Thomas Aquinas. Commentary on Nicomachean Ethics; Book 2, Lecture 2, Chapter 2.
30. Durant, Will. The Story of Philosophy: The Lives and Opinions of the World’s Greatest Philosophers. Simon and Schuster Publishers; 1926. Part VII. Durant is summing up Aristotle’s virtue ethics from the Nicomachean Ethics. 31. Thomas Aquinas. Commentary on Nicomachean Ethics; Book 2, Lecture 1, Chapter 1.
32. EN II, iii, 6.
33. Thomas Aquinas. Commentary on Nicomachean Ethics; Book 2, Lecture 3, Chapter 3.
34. Fulton Sheen said this so regularly that it is unnecessary to cite any one source.
35. EN V, ix, 15.
36. EN II, iv, 4.
37. Schall, James V. “The Uniqueness of the Political Philosophy of Thomas Aquinas.” Perspectives in Political Science, 26 (Spring, 1997), 85-91.
38. EN V, vii, 2.
39. Even fellow Catholics and good faith affirmers of the Natural Law like Dr. Hadley Arkes and Dr. Robert P. George seem to assume that the jurisprudence proper to the Catholic Natural Law is some form or another of judicial activism—known by their own loaded branding as the “Natural Law Jurisprudence.” For example, take Dr. Arkes’ “Natural Law Manifesto,” as appearing in the Claremont Review of Books, Fall 2011; Vol. XI, Number 4, where, Arkes writes: “Our allies on the conservative side retreat to some safe formula of positive law, a focus on the text of the Constitution, or a commitment to ‘Originalism’ and tradition. But with that move they transmute the question; they turn jurisprudence into legislative history.” Aristotle, Augustine, Thomas Aquinas all beg to differ with good Dr. Arkes, who appears to be genuinely unaware of the longstanding Aristotelian tradition, comprised of mainly Catholics, who would reject Arkes’ “Natural Law jurisprudence.” They would reject it not for the Enlightenment’s positivism, but rather in favor of a jurisprudence which acknowledges the composite (objective/subjective) nature of human law and the incomplete nature of the overlap between legality and morality. Dr. Arkes’ implicit endorsement of the view of a “living Constitution” is at odds with a text-based approach to the nation’s laws; this opposition, falsely taking the name of the Natural Law, would have staggered Aristotle or Thomas.
40. EN V, ix, 15.
41. Thomas Aquinas. Summa Theologiae; S1, Q. 93, A. 2. To apply Thomas’s reasoning here to our present-day republic, one notes that what legal scholars and theorists call strict textualism (a type of originalism)—judicial review by close scrutiny of and obedience to the text of laws and constitutions—is a far more Thomistic template than a jurisprudence composed of the judges’ own conception of morality which ends up being mostly or wholly divorced from the text of a law. While Thomas’s notion seems to us to be self-evident, it was not always so. Early on in the Catholic Natural Law tradition, this exception needed to be explained. Most scholars have missed Thomas’s position.
42. Thomas Jefferson letter to Judge Spencer Roane; September 6, 1819. In other words, the intuitive mistrust of the judiciary by Thomas Jefferson and the Jeffersonians stemmed indirectly from a crypto-Catholic hunch that virtue ethics requires (in terms of the relation of morality to legality) individualism, not collectivism. Individualism requires the strict interpretation of law. Jefferson and his disciples were right, if accidentally. Jefferson in other places stated similarly that: “Our judges are as honest as other men, and not more so…and their power is the more dangerous, as they are in office for life and not responsible, as the other functionaries are, to the elective control” (Letter to William Jarvis; Sept. 28, 1820); “A judiciary independent of a king or executive alone, is a good thing; but independence of the will of the nation is a solecism, at least in a republican government” (Letter to Thomas Ritchie; Dec. 25, 1820); “The great object of my fear is the federal judiciary” (Letter to Judge Spencer Roane; 1821).
43. Prot-Enlight America today wrongly assumes that the distinguishability between morality and legality came from the Enlightenment. (Specifically, I mean the Straussians who believe the claim that the distinction was engendered by Machiavelli.)
