Law in the Ruins1 by James G. Bruen, Jr.

We hold these truths to be self-evident, that all men are created e ual, that they are endowed by their !reator with certain unalienable Ri"hts, that amon" these are Life, Liberty and the #ursuit of $a##iness.% &sin" these words that are so close to enunciatin" a #rinci#le of the natural law, the thirteen united 'tates of (merica reco"ni)ed that all men are created e ual and declared inde#endence from *n"land. +$* ,(+&R(L L(W +he natural law is the law written in our hearts and our souls, our very bein", by God. Romans -.1/-10. +he natural law, says 't. +homas ( uinas in his Summa Theologica, is nothin" else than the rational creature1s #artici#ation in the eternal law.% 2t is called natural law, says John $ardon, '.J. in his Modern Catholic Dictionary, because all are sub3ect to it from birth,% because it is only those duties 4 derivable from human nature itself,% and because its essentials can be "ras#ed by the unaided li"ht of human reason.% 5ather $ardon #oints out that, while the ob3ect of natural law is the whole moral order as 6nowable by human reason,% some obli"ations of that law are more difficult to reali)e than others. 7rimary #rece#ts are most easily #erceived, as for e8am#le, that "ood must be done and evil must be avoided. 'econdary #rece#ts are also available to most #eo#le, such as the #rescri#tions of the 9ecalo"ue.% Reason can also attain more refined conclusions% from those #rece#ts, but with varyin" de"rees of difficulty, such as the evil of contrace#tion or the fact that direct abortion is always forbidden.% +hou"h the word slavery was not used in the !onstitution of the &nited 'tates, slavery1s continued e8istence reflected the contradiction and com#romise inherent in the foundin" of this country. +he #ositive law, the !onstitution enacted by men, did not reflect the natural law to which the 9eclaration of 2nde#endence had a##ealed. +he !ivil War did not resolve that contradiction. ,or did the constitutional amendments ado#ted in its wa6e. +hey eliminated slavery based on the color of a #erson1s s6in, but (merica ado#ted the le"al fiction of se#arate but e ual that treated a man as a second-class citi)en based on the color of his s6in. +hat fiction was abandoned almost a century later thou"h not without anomalies and resistance that lin"er today. (s our #ositive law came closer to the natural law in the 1:0;s and 1:<;s by reco"ni)in" the e uality of men before the law des#ite the different colors of their s6in, it moved away from it in the area of human se8uality and #rocreation. 2t may seem #arado8ical that #ositive law would a##roach the natural law on some issues while retreatin" from it on others. +o understand how this could occur, let1s loo6 at Geor"e 7. 5letcher1s Our Secret Constitution: How Lincoln Redefined American Democracy, which the (merican (ssociation of 7ublishers selected as the best boo6 #ublished on law in -;;1. 7rofessor 5letcher, the !ardo)o 7rofessor of Juris#rudence at !olumbia &niversity 'chool of Law, is a Jew who re3ects the natural law a##roach. 2n Our Secret Constitution, he ar"ues that the (merican le"al system should instead reflect +almudic thou"ht by which a law"iver1s intent is irrelevant, whether the law"iver be God or the framers of the !onstitution.
James G. Bruen, Jr. writes frequently for Culture Wars. This article was published in the September 2 !2 issue of Culture Wars.
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2 never cease to be ama)ed that le"al scholars, #articularly in the &nited 'tates, continue to be confused about the relevance of the framers1 ori"inal intent. 'ecular le"al systems could not #ossibly be more demandin", more deferential to authority, than reli"ious cultures that believe that their bindin" le"al #rinci#les were declared by God. =et, a story from the +almud beautifully illustrates the folly of invo6in" ori"inal intent in a dis#ute about the meanin" of God1s commandments. ( "rou# of rabbis were en"a"ed in a debate about whether a #articular earthenware oven was 6osher or not. >ne of them, Rabbi *lie)er, said no? the other rabbis said yes. Rabbi *lie)er #roceeded to invo6e a variety of fantastic si"ns to su##ort his view. at his command, a carob tree was u#rooted and flew across the field, a stream flowed u#stream, and the walls started to colla#se before they were halted. +he rabbis were not im#ressed by these si"ns. +hen Rabbi *lie)er, des#erate and alone, invo6ed the ar"ument of ori"inal intent. 2f 2 am ri"ht, let heaven be the #roof.% ( heavenly voice then #roclaimed. $ow dare you o##ose Rabbi *lie)er, whose views are everywhere the law.% Rabbi Joshua arose and uoted 9euteronomy. 2t is not in $eaven.% Rabbi Jeremiah e8#lained the reference. *ver since the +orah was "iven at @ount 'inai, we #ay no attention to heavenly voices, for God already wrote in the +orah at @ount 'inai.% +he #oint is that once the lan"ua"e is released and "iven to 3urists to fashion to the needs of their time, the tas6 of law"ivers is finished. +heir intentions and desires cannot rule A either from the "rave or from heaven. 7rofessor 5letcher adds, +he story concludes, in one version, with an encounter between Rabbi ,athan and the #ro#het *li3ah. Rabbi ,athan as6ed, What did God do at that moment when Rabbi Joshua #roclaimed Bit is not in $eaven1C% *li3ah answered, God lau"hed and said. B@y children have defeated me, my children have defeated me.1% What stands in the way of man1s i"norin" the will of God as 5letcher1s +almudic analysis advocatesC 5letcher answers #ointedly. 7o#e 7io ,ono D7ius 2EF retreated within the walls of the Gatican and in 1HI; his council declared the infallibility of his office on matters of faith and morals. +his declaration that we can 6now absolute truth became a model for all the ideolo"ical e8tremists who followed on the ri"ht and on the left.% 5or 5letcher, the declaration of #a#al infallibility is the underlyin" #roblem because it assumes there is a natural law, a +ruth that we can 6now, and #roclaims the #o#e can e8#ound it. +his, 5letcher says, is the model for all ideolo"ical e8tremists. 'o, #a#al infallibility is the model for the 'oviets, the ,a)is, @ao, the '9', the Weathermen, ,eo-,a)is, 2slamic e8tremists, White 'u#remacists, and Blac6 7anthers, etc.C Where does 5letcher believe we should loo6, if not to natural law and the will of GodC +he truth lies in what wor6s, in the validation of e8#eriences, not in the abstract re uirements of ideolo"ical lo"ic,% says 5letcher. +he #ra"matic le"al mind rushes to re3ect moral e8tremes in favor of some va"ue standard of what is "ood for everybody, all thin"s considered.% +ruth lies in what wor6s.% +his is the (merican virtue. #ra"matism? whatever wor6s is "ood and true. 2t is the re3ection of natural law, the re3ection of morality, and the re3ection of +ruth. 2t is in"rained in the (merican le"al and #olitical systems. +he #ra"matist tells a man to thin6 what he must thin6 and never mind the (bsolute,% notes G.J. !hesterton in Orthodoxy. But #recisely one of the thin"s that he must thin6 is the (bsolute. +his #hiloso#hy, indeed, is a 6ind of verbal #arado8. 7ra"matism is a matter of human needs? and one of the first of human needs is to be somethin" more than a #ra"matist.%

7ra"matists deni"rate the natural law a##roach but nevertheless often a##eal to a hi"her% law, whether e uality, feminism, "ay ri"hts, or some other ri"ht,% when blud"eonin" those who res#ect the natural law. 7ure #ra"matism encoura"es any strata"em in the service of ma6in" an ideolo"y succeed. +he ideolo"y 3ustifies the means. ( #ra"matism that refuses to ac6nowled"e the natural law results in laws that sometimes conform to the natural law, such as laws a"ainst murder and ra#e, and that sometimes don1t, such as our laws on abortion. 2n lanned arenthood !" Casey, 0;0 &.'. HKK D1::-F the 'u#reme !ourt e8#lained its contrace#tion and abortion decisions thus. these matters, involvin" the most intimate and #ersonal choices a #erson may ma6e in a lifetime, choices central to #ersonal di"nity and autonomy, are central to the liberty #rotected by the 5ourteenth (mendment.% (nd then. (t the heart of liberty is the ri"ht to define one1s own conce#t of e8istence, of meanin", of the universe, and of the mystery of human life.% +he !ourt trotted out the #assa"e a"ain in -;;K in Lawrence !" Texas, 0K: &.'. 00H, to rationali)e constitutional #rotection for anal sodomy between men. @='+*R= >5 L25* 7(''(G* +he mystery of life #assa"e reflects #ost-modernist thou"ht. We create our own reality. 2t1s "ibberish. a fi" leaf that hides and tries to ma6e more #alatable the !ourt1s ,iet)schean im#osition of its will on the less #owerful. +he Justices were #ra"matic. they wanted to le"ali)e abortion and homose8ual sodomy, so they did what it too6. ,ot all #eo#le are as articulate or as o#en as 5letcher about the dan"er that the 7o#e, the !hurch, the natural law, and, indeed, +ruth, re#resent to them. But some are even blunter. 2n A#orting America D1:I:F, Bernard ,athanson details the successful efforts of Lawrence Lader and himself, two Jews from ,ew =or6 !ity, to le"ali)e abortion in ,ew =or6 in the late 1:<;s. +o do so, they chose the !atholic bisho#s as their foe. Lader insisted that to "et abortion le"al, we1ve "ot to brin" the !atholic hierarchy out where we can fi"ht them. +hat1s the real enemy. +he bi""est sin"le obstacle to #eace and decency throu"hout all of history.% Lader1s comment was not a casual observation, but a conscious, bitter a##roach. $e held forth on that theme for most of the drive home,% recounts ,athanson. 2t was a com#rehensive and chillin" indictment of the #oisonous influence of !atholicism in secular affairs from its ince#tion until the day before yesterday. 2 was far from an admirer of the church1s role in the world chronicle, but his insistent, uncom#romisin" recitation brou"ht to mind the 7rotocols of the *lders of Lion. 2t #assed throu"h my mind that if one had substituted BJewish1 for B!atholic1, it would have been the most vicious anti-'emitic tirade ima"inable.% Lader1s a##roach re uired dividin" the !atholic bisho#s from their floc6. M*Nvery revolution has to have its villain,% said Lader. ,ow, in our case, it ma6es little sense to lead a cam#ai"n a"ainst un3ust laws, even thou"h that1s what we really are doin". We have to narrow the focus, identify those un3ust laws with a #erson or a "rou# of #eo#le.% WhoC ,ot 3ust all !atholics. 5irst of all, that1s too lar"e a "rou#, and for us to vilify them all would diffuse our focus. 'econdly, we have to convince liberal !atholics to 3oin us, a #o#ular front as it were, and if we tar them all with the same brush, we1ll 3ust anta"oni)e a few who mi"ht otherwise have 3oined us and be valuable show #ieces for us. ,o, it1s "ot to be the !atholic hierarchy.% Lader1s tactic was outra"eous, but !atholics were not blameless either. +hey were com#licit by undercuttin" !hurch teachin" on contrace#tion and abortion. 5or e8am#le, 9octor John Roc6, a !atholic who tau"ht at $arvard @edical 'chool, was one of the leadin" clinical researchers who develo#ed the #ill. (nd, in $rom atriotism to luralism: How Catholics %nitiated the Re&eal of 'irth Control Restrictions in Massachusetts ,

e8cer#ted and ada#ted in Boston !olle"e @a"a)ine, 'eth @eehan documents that Richard !ardinal !ushin" of Boston facilitated the re#eal of @assachusetts1s ban on contrace#tives in the mid-1:<;s. When the @assachusetts le"islature voted to end the ban on contrace#tives, it did so with the a##roval and assistance of the Boston (rchdiocese in concert with the 7lanned 7arenthood Lea"ue of @assachusetts. 2n contrast, !atholic teachin" insists a "overnment should "uard morality by #rotectin" the family a"ainst contrace#tives because they are contrary to the natural law. Humanae (itae, -K D1:<HF a##eals to 7ublic (uthorities. do not tolerate any le"islation which would introduce into the family those #ractices which are o##osed to the natural law of God.% J&L= 1:</ 2n July 1:</, about nine months after the assassination of John 5. Jennedy, 5r. Robert 9rinan, 5r. Richard @c!ormic6, 5r. !harles !urran, 5r. Giles @ilhaven, other !atholic theolo"ians, and at least one bisho# went to the Jennedy com#ound in $yannis#ort to meet with +ed and Bobby Jennedy to discuss the #osition a !atholic #olitician should ta6e on abortion. Let1s listen to Giles @ilhaven, a Jesuit who later left the #riesthood and tau"ht at Brown &niversity, describe it at a 1:H/ meetin" of !atholics for a 5ree !hoice. 2 remember vividly. >ther theolo"ians and 2 were drivin" down Route K to !a#e !od, with Bob 9rinan at the wheel. We were to meet with the 'enators Jennedy and the 'hrivers at their re uest. 2 remember it vividly because the traffic lanes were 3ammed and halted, #resumably because of an accident ahead, and Bob 9rinan drove <; miles an hour down the brea6down lane. 9es#ite my mis"ivin"s each time we swe#t around a curve, we theolo"ians arrived safely at the Jennedy com#ound. +he theolo"ians wor6ed for a day and a half amon" ourselves at a nearby hotel. 2n the evenin", we answered uestions from the Jennedys and the 'hrivers. +hou"h the theolo"ians disa"reed on many a #oint, they concurred on certain basics ... and that was that a !atholic #olitician could in "ood conscience vote in favor of abortion Mand thatN in certain situations abortion is morally licit and may even be obli"atory. (nne $endershott, The olitics of A#ortion, 1;-11. We can hardly claim le"ali)ed abortion was foisted on an unsus#ectin" !atholic !hurch when #rominent cler"y were wor6in" surre#titiously to facilitate the chan"e years before Lader and ,athanson undercut ,ew =or61s laws and a decade before Roe !" )ade. @oreover, Justice Brennan, the only !atholic on the 'u#reme !ourt when it decided Roe !" )ade, was stridently #ro-abortion, lobbyin" the #ro-abortion #osition to the other Justices. >nce, when there was unrest and riotin" on a 7acific island, 2 as6ed its former bisho#, an (merican missionary, why the !hurch seemed so wea6 there. $is answerC We do a #oor 3ob of evan"eli)ation. +he same is true in the &nited 'tates. We often do not #ro#ound the truth that is !atholicism. We 6ee# its li"ht under a bushel bas6et. We conform ourselves to the (merican Way. 5or e8am#le, in our bisho#s1 #ublic battle with the >bama (dministration over its mandate that health insurance #olicies cover contrace#tion, the bisho#s1 chosen battle"round is the 5irst (mendment1s "uarantee of reli"ious freedom. +hey want to fi"ht the battle on (merican #rinci#les rather than on !hurch teachin". +he beauty and truth of the !hurch1s teachin" on human se8uality, marria"e, contrace#tion, and lar"e families is treated as incidental to the battle, where it is considered at all. +he bindin" nature of natural law on all, not 3ust !atholics, is all but i"nored. +he !hurch in

(merica seems to treat !hurch teachin" on contrace#tion as an embarrassment, an atavistic holdover from medieval times. We have "otten "un-shy,% !ardinal +imothy 9olan told the Wall 'treet Journal, in s#ea6in" with any amount of co"ency on chastity and se8ual morality.% $e dated this diffidence to the mid- and late B<;s, when the whole world seemed to be cavin" in, and where !atholics in "eneral "ot the im#ression that what the 'econd Gatican !ouncil tau"ht, first and foremost, is that we should be chums with the world, and that the best thin" the church can do is become more and more li6e everybody else.% +he flash #oint,% the ,ew =or6 archbisho# said, was Humanae (itae, which brou"ht such a tsunami of dissent, de#arture, disa##roval of the church, that 2 thin6 most of us A and 21m usin" the first-#erson #lural intentionally, includin" myself A 6ind of subconsciously said, BWhoa. We1d better never tal6 about that, because it1s 3ust too hot to handle.1 We forfeited the chance to be a coherent moral voice when it comes to one of the more burnin" issues of the day.% +he !hurch in (merica seems "un-shy on many issues. the usurious economy, (merican militarism, "luttony, #orno"ra#hy, etc. >f what worth is a civil law "uarantee of free s#eech or of freedom of reli"ion if !atholics A or their bisho#s A decide we better not tal6 about hot issuesC +he !hurch often seems more intent on conformin" to (merican mores rather than transformin" them. 2t is disconcertin" to hear the !hurch critici)e an order that it #ay for contrace#tives while remainin" silent on the evil of usin" them. 9oesn1t the church have a #roblem conveyin" its moral #rinci#les to its own floc6C% as6ed the )all Street *ournal. 9o we everO% re#lied !ardinal 9olan with a hearty lau"h.% 2 sus#ect it was a nervous lau"h, "iven the #ossibility that the bisho#s1 silence may ma6e the hereafter too hot to handle% for them. +he >bama (dministration, not the !hurch, wants the battle"round to be contrace#tion A the so-called war a"ainst women. 9own#layin" moral #rinci#les, the bisho#s insist the battle is not about access to contrace#tion,% nor about Bbannin" contrace#tion,1 when the &.'. 'u#reme !ourt too6 that issue off the table two "enerations a"o.% &nited for Reli"ious 5reedom, ( 'tatement of the (dministrative !ommittee of the &nited 'tates !onference of !atholic Bisho#s, @arch 1/, -;1-. ,otre 9ame 7resident 5r. John Jen6ins used a similar but more obse uious tac6 to e8#lain the university1s lawsuit a"ainst the >bama (dministration over the mandate. Let me say very clearly what this lawsuit is not about. it is not about #reventin" women from havin" access to contrace#tion, nor even about #reventin" the Government from #rovidin" such services. @any of our faculty, staff and students A both !atholic and non-!atholic A have made conscientious decisions to use contrace#tives. (s we assert the ri"ht to follow our conscience, we res#ect their ri"ht to follow theirs. (nd we believe that, if the Government wishes to #rovide such services, means are available that do not com#el reli"ious or"ani)ations to serve as its a"ents. 'o the !hurch in (merica focuses not on morality but on lobbyin" and coalition buildin" and lawsuits. But the >bama (dministration wants to focus on contrace#tion. WhyC Because, li6e (rchbisho# 9olan, it 6nows !atholics are #oorly catechi)edC Because it thin6s !atholics li6e 5ather Jen6ins don1t care whether #eo#le form their consciences #ro#erly or en"a"e in sinful activityC Because, li6e Lader and ,athanson, it wants to drive a wed"e between the laity and the bisho#s A even if that wed"e is illusory as the bisho#s themselves have no coherent moral voiceC '!R2BBL2,G

'cribblin" for the +ew ,or- Times, Gary Guttin", a !atholic who teaches #hiloso#hy at ,otre 9ame, asserted that a chasm e8ists between the laity and the e#isco#acy, to the e8treme of assertin" that, des#ite contrary su""estions from the bisho#s, the !hurch no lon"er teaches that contrace#tion is sinful. 2n our democratic society the ultimate arbiter of reli"ious authority is the conscience of the individual believer. 2t follows that there is no alternative to acce#tin" the members of a reli"ious "rou# as themselves the only le"itimate source of the decision to acce#t their leaders as authori)ed by God. +hey may be wron", but their 3ud"ment is answerable to no one but God. 2n this sense, even the !atholic !hurch is a democracy. But, even so, haven1t the members of the !atholic !hurch reco"ni)ed their bisho#s as havin" full and sole authority to determine the teachin"s of the !hurchC By no means. 4 @ost !atholics 4 now reserve the ri"ht to re3ect doctrines insisted on by their bisho#s and to inter#ret in their own way the doctrines that they do acce#t. +his is above all true in matters of se8ual morality, es#ecially birth control, where the ma3ority of !atholics have concluded that the teachin"s of the bisho#s do not a##ly to them. 4 +he mista6e of the >bama administration A and of almost everyone debatin" its decision A was to acce#t the bisho#s1 claim that their #osition on birth control e8#resses an authoritative teachin" of the church.% 4 +he bisho#s1 claim to authority in this matter has been undermined because !atholics have decisively re3ected it. +he immorality of birth control is no lon"er a teachin" of the !atholic !hurch. 7o#e 7aul G2 meant his 1:<H encyclical, $umanae Gitae,% to settle the issue in the manner of the famous ta", Roma locuta est, causa finita est.% 2n fact the issue has been settled by the voice of the !atholic #eo#le. 2n a democratic society, the teachin" of the !atholic !hurch is sub3ect to ma3ority vote, which also determines moralityC 2n a democracy, anythin" is morally 3ustified if the ma3ority a##rovesC GenocideC (nti'emitismC &suryC Ra#eC Just wave the wand of #ublic a##roval and the 'even 9eadly 'ins become the 'even 9ivine GirtuesC (nalo"ously, the teachin" of the !hurch and the morality of an action are determined by the dictator in authoritarian countries, or by the !ommunist 7artyC 7rofessor Guttin"1s a##roach is silly. (ll he has noticed, really, is that !atholics are sinners and that contrace#tion is a wides#read sin. But his a##roach #asses for #hiloso#hy at ,otre 9ame and #erha#s reflects a #revailin" but incoherent belief of !atholics in (merica. !an the state #ro#erly infrin"e u#on reli"ionC >f course it can. 9oes the 5irst (mendment #revent all infrin"ement on reli"ionC >f course not. !an the state, for e8am#le, ma6e #oly"amy criminal even thou"h @ormons believe it a reli"ious dutyC +he 'u#reme !ourt u#held a federal law outlawin" #oly"amy in federal territories in Reynolds !" .nited States, :H &.'. 1/0 D1HIHF Dthou"h 21d hesitate to #redict how it would decide a similar case todayF, sayin". 'u##ose one believed that human sacrifices were a necessary #art of reli"ious worshi#, would it be seriously contended that the civil "overnment under which he lived could not interfere to #revent a sacrificeC >r if a wife reli"iously believed it was her duty to burn herself u#on the funeral #ile of her dead husband, would it be beyond the #ower of the civil "overnment to #revent her carryin" her belief into #racticeC% 'o why can1t federal law ma6e a reli"ious institution1s failure to #rovide insurance covera"e for contrace#tion or abortion #unishable by fineC

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,>+ (, &,L2@2+*9 R2G$+ +he !atholic !hurch teaches that reli"ious freedom is not of itself an unlimited ri"ht?% 3ust limits on its e8ercise must be #olitically #rudent, accord with the common "ood, and be ratified throu"h le"al norms consistent with the ob3ective moral order.% Com&endium of the Social Doctrine of the Church, /--. +he !hurch thus insists that restrictions must conform to the ob3ective moral order? they must conform to the natural law. 2n contrast, today1s (merican le"al and #olitical system in #ractice denies the e8istence of an ob3ective moral order. 2n the (merican system, conformity of the #ositive law to the natural law now occurs ha#ha)ardly, by ha##enstance. ( mandate that a reli"ious institution A or, indeed, any institution A must #rovide insurance covera"e for contrace#tion or abortion does not conform to the ob3ective moral order, while a ban on @ormon or @oslem #oly"amy or a ban on $indu suttee does. 7olitical authority must be "uided by the moral law MandN e8ercised within the conte8t of the moral order.% %d", K:<. (s lon" as !atholics are e8ercisin" #olitical ri"hts within a system that often disre"ards the moral order and natural law, favorable and #ro#er results will be s#oradic. +hat does not mean !atholics should not assert civic ri"hts or be active in the #olitical #rocess. 'aint 7aul asserted his ri"hts as a Roman citi)en. 2ndeed, we should strive to brin" #ositive law into con"ruence with the natural law. But we must not e8alt our civic ri"hts or the #olitical #rocess such that they become or seem more im#ortant than the 5aith, the natural law, or +ruth. Lawrence Lader remained bitterly anti-!atholic all his life, even suin" the 2nternal Revenue 'ervice unsuccessfully to revo6e the !hurch1s ta8 e8em#tions. 2n contrast, Bernard ,athanson, who #resided over <;,;;; abortions, includin" #erformin" one that 6illed his own child, re#ented and converted to !atholicism. >ur solution must be first and foremost !atholic. (s individuals and as a !hurch, we must root out sin in our lives and cultivate virtue. We must convert (merica, not blud"eon her into #olitical submission. When (merica1s heart chan"es, so will its a##reciation of natural law, the !hurch, and the role of the #o#e. 'o, catechi)e !atholics A laity and cler"y ali6e. 7ray for your enemies, and evan"eli)e. Go forth, tell the nation the Good ,ews.