David Theroux of the Independent Institute concludes his two-part article on “secular theocracy” here (the full article can be read here). In this second part, Theroux observes that “C.S. Lewis understood that natural law applies to all human behavior including government officials.”
Indeed, it is hard to see how the rule of law can function apart from a conception of the natural law. Now as Theroux shows, not just any conception of the natural law will do. It has to be one rooted in the divine lawgiver to those created in his image, with the implications for dignity and basic rights entailed by such.
Otherwise you might have a “natural law” that empowers the strong over the weak on the basis of their ability to dominate, or their intelligence, or their “fitness” to rule. See, for instance, Sam Gregg’s explanation of how Plato and Aristotle justified slavery.
In this week’s Acton Commentary, “Blue Laws and Black Friday,” I argue that the increasing encroachment of commercial activity into holidays like Thanksgiving are best seen as questions of morality and the limits of the economic sphere of existence. The remedy for such issues is best sought at the level of relationship (between consumer and retailer, for instance, as well as employer and employee) rather than at the level of legal remedy, as in the case of blue laws.
In an interesting side note, the state of Massachusetts still has blue laws on the books that prevent employees from working before midnight on Thanksgiving Day. The Boston Globe editorializes that “the blue laws are creating nothing but inconvenience; many stores adjust by simply opening at 12:30 a.m. instead of midnight. Workers still come in – but half an hour deeper into the night.”
One rejoinder concerning the relationship between Thanksgiving and Black Friday is that those who have to work on Thursday ought to be thankful to have a job at all, particularly in these times of economic hardship. This is certainly true, but I don’t think this means that employees simply have to silently accept whatever their employer demands of them. As I’ve said, the remedy for this moral problem is best sought in the context of the complex web of relationships between employees, employers, and customers. And we need not derogate the true blessing that work is to say that it ought to have its limits. It seems to me that the widespread impingement of non-essential commercial activity into holidays like Thanksgiving probably crosses these limits, at least in some cases.
All of this means that customers need to be more aware of what their shopping habits and practices demand of businesses. And some companies might realize that the moral demand in certain cases might mean not giving customers what they want (e.g. opening at midnight on Thanksgiving). A salutary example of this kind of response is found in the folks at Hobby Lobby, who have never operated on Sunday.
Their reasoning goes like this: “We have chosen to close on the day most widely recognized as a day of rest, in order to allow our employees and customers more time for worship and family. This has not been an easy decision for Hobby Lobby because we realize that this decision may cost us financially. Yet we also realize that there are things more important than profits. This is a matter of principle for our company owner and officers.”
It’s wonderful when we don’t need laws to tell us what’s the right thing to do.
The New York Times ran an op-ed yesterday by Canadian legal scholar Joel Bakan, the author of a new book titled Childhood Under Siege: How Big Business Targets Children. Bakan argues that the 20th century has seen an increase in legal protections for two classes of persons, children and corporations, and that one of these is good and one is terribly, terribly bad—mean, even. That furthermore, there has been a kind of inexorable, Hegelian clash between the Corporation and the Child, but that the Corporation is steamrolling the Child, and we’ve got to step in with governmental protections.
The first problem with Bakan’s analysis is his history of personhood. In his words, children were not legal persons until the U.N. Declaration of the Rights of the Child in 1959. And as he understands it, corporations are granted certain rights of personhood simply because they have lots of money to pay lobbyists with—not because they are risk allocating mechanisms that must function semi-autonomously from the men and women who run them.
It is ridiculous to assert that “the 20th century also witnessed another momentous shift, one that would ultimately threaten the welfare of children: the rise of the for-profit corporation.” A Canadian lawyer should have some history of the common law and should know of the numerous 18th and 19th century for-profit corporations. And you can’t talk of fin de siècle child welfare reforms without corporate dark satanic mills already abusing the children.
Worse than these blunders, though, is Bakan’s view of the condition of children vis-à-vis corporations today.
Childhood obesity mounts as junk food purveyors bombard children with advertising.
We medicate increasing numbers of children with potentially harmful psychotropic drugs, a trend fueled in part by questionable and under-regulated pharmaceutical industry practices.
We also know that corporations often use [toxic] chemicals as key ingredients in children’s products, saturating their environments.
It is not even considered that children’s parents might be responsible for the food they eat, the medicines they take, or the toys they play with. Indeed, the piece begins with a reflection on Bakan’s own children’s absorption in the digital world and a sense that something is wrong with their lives, but nowhere does it occur to him to do anything about it, except to raise awareness in the pages of the New York Times. If the progressive state is to solve his own problems of parenting just as it is to solve his children’s problems, how is our brave muser any different than a child?
Bakan ends with a quotation of Nelson Mandela: “There can be no keener revelation of a society’s soul than the way in which it treats its children.” Mandela was right, and Bakan is a ward of the nanny state—it treats him as it treats his offspring, and makes children of them both. It is frightening to remember what Chesterton said—that “education is simply the soul of a society as it passes from one generation to another”—if there is no difference between generations.
In this lecture, Robinson explores and reframes our historical understanding of the Reformed tradition and its relationship to “Christian liberalism.” She says,
Contrary to entrenched assumption, contrary to the conventional associations made with the words Calvinist and Puritan, and despite the fact that certain fairly austere communities can claim a heritage in Reformed culture and history, Calvinism is uniquely the fons et origo of Christian liberalism in the modern period, that is, in the period since the Reformation. And this liberalism has had its origins largely in the Old Testament. This is a bold statement, very much against the grain of historical consensus. Though I acknowledge that it may be indefensible in any number of particulars, I will argue that in a general sense it is not only true, but a clarification of history important to contemporary culture and to that shaken and diminishing community, liberal Protestantism.
She traces this idea of Christian liberalism to the Reformation ideas about generosity and responsibility. She notes,
But in Renaissance French, libéral, libéralité, meant “generous, generosity.” And of course the word occurs in the English Puritan translations, the Matthew’s Bible and the Geneva Bible, which were followed in their use of the term by the 1611 Authorized Version. The word occurs in contexts that urge an ethics of non-judgmental, non-exclusive generosity.
The point here does not apply to non-exclusivity of doctrine (which is how it is typically understood, and applied as she notes in the context of figures like Adolf von Harnack). The point is rather that Christian liberalism, as informed by the Reformed reception of the biblical witness, is that it is focused on a vision of social life and culture.
As Robinson says, “All this is of interest because the verses I have quoted and the word liberal itself, supported by the meaning the verses give to it, are central to American social thought from its beginning.”
When we think of rule of law failure, countries like Zimbabwe and Somalia come to mind. But as Acton Research Director Samuel Gregg points out in his latest piece over at Public Discourse, rule of law can also be subtly eroded in wealthy countries. The negative consequences for risk-taking, entrepreneurship, and long term investment, he says, can be far-reaching.
Risk is an inherent part of the workings of market economies. But Gregg notes that’s not the same thing as uncertainty:
Measurable risks are . . . no deterrent to the making of economic choices. If we take them seriously, they help us to calibrate our economic choices to be consistent with our responsibilities, resources, and opportunities. The same measurements also allow us to distinguish between prudent risk takers and the reckless, and reward them appropriately. Uncertainty, by contrast, involves those risks that cannot be quantified. It can occur either because of the sheer complexity of a given situation or because the subject matter cannot be reasonably measured. As long as a situation of uncertainty persists, it will deter many people from even considering whether to take economic risks.
Uncertainty in America, according to Gregg, is being magnified by the sheer complexity of laws such as the United States Internal Revenue Code:
A tax code of this size and complexity which is subject to so many sources of potentially conflicting official and semi-official explanations is bound to embody significant contradictions, and offers considerable scope for arbitrary decision-making. Uncertainty is the result. It’s also valid to claim that the same tax code may well be impossible for large numbers of honest law-abiding citizens to understand and comply with—not to mention difficult for conscientious civil servants to administer justly. As a result, many people may unintentionally violate the law or simply choose to forgo making any number of potentially wealth-creating opportunities for fear of violating the law.
Another example is the thousands upon thousands of pages of legislation being passed by Congress every year. As Gregg writes:
Then there are the rule-of-law problems associated with the sheer volume of law that directly shapes American economic life. The 2010 healthcare reform legislation, for instance, amounted to 2,700 pages. Not far behind it in length was the 2010 financial overhaul act: a mere 2,300 pages. More than a few legislators have confessed to never having read either piece of legislation in its entirety. Nor should we assume any great familiarity on their part with the thousands of pages of legislation which these acts superseded, integrated, or reinterpreted. The possibility that many laws governing healthcare and financial services have subsequently been rendered unclear, inconsistent, and impossible to comprehend is high.
These erosions of rule of law, Gregg says, result in large incentives not to take risks and not to make long-term investments. It also encourages entrepreneurs to look elsewhere for a more friendly, stable and comprehensible legal environment.
How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.
The Witherspoon Institute has announced today its project, “Natural Law, Natural Rights, and American Constitutionalism,” which “will serve as an online resource center for students, teachers, and educated citizens to learn about the intellectual traditions of natural law and natural rights, particularly within American political and constitutional history.”
The current list of essays by contributors is expansive and impressive, and includes an essay by Acton’s own director of research Sam Gregg, “Natural Law and the Law of Nations.” Be sure to check out this resource from the Witherspoon Institute. I’m eager to see how the site develops and grows. I’m also interested in seeing who will write the currently missing essay (or set of essays) on the Reformation and natural law (including modern Protestantism and natural law). Sigmund’s essay currently covers the period, but much more needs to be said.
Currently the “Early Modern Liberal Roots of Natural Law” primary source section includes Locke, Hobbes, and Montesquieu. This is of course an important stream of natural-law thinking in the early modern era, but hardly the only one and certainly not the only one with later influence.
Additionally, to be of more scholarly use, I think the primary source collection should point toward digitally-accessible forms. I talk about this in the context of theology and economics in an editorial in the latest issue of the Journal of Markets & Morality, “Printed Source and Digital Resource in Economics and Theology” (PDF), and point especially towards the example of the Post-Reformation Digital Library (see, for instance, the pages on Locke and Hobbes).
…a judge has tossed out the wiretapping claims pointing out that there was no expectation of privacy out in public.
“Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public,” the judge wrote. “When we exercise that power in public fora, we should not expect our actions to be shielded from public observation.”
There’s more here and here on the question of law enforcement and ‘citizen photojournalism.’
In this week’s Acton Commentary, Kevin Schmiesing looks at the exchange between Supreme Court nominee Elena Kagan and Sen. Tom Coburn over the interpretation of the Constitution’s Commerce Clause.
Elena Kagan’s Revealing Commerce Clause Evasion
by Kevin E. Schmiesing Ph.D.
Many Americans have a vague sense that the United States has drifted far from its constitutional origins. Every once in a while, something happens that prods us to recognize just how far we’ve gone.
Such was the case last week, during the Senate hearings on Supreme Court nominee Elena Kagan. One of the most widely circulated C-Span video clips was Senator Tom Coburn’s insistent question as to whether the Constitution’s commerce clause permitted Congress to pass a hypothetical law dictating that all Americans must eat a prescribed number of fruits and vegetables every day.
Kagan was clever enough to understand that what Coburn was really asking was, “Is it possible to justify the continued expansion of congressional powers—in particular recent health care reform legislation—on the basis of the authority granted by the commerce clause?” Kagan replied that the fruits and vegetables measure would be “dumb” law. She didn’t dare suggest that it would be unconstitutional, however, for she rightly recognized that she would be backing herself into a judicial corner. How many laws might she have to strike down as Supreme Court justice if she followed a “strict” interpretation of the Constitution?
Thus we’ve come to a point at which a Supreme Court nominee cannot bring herself to condemn a manifestly totalitarian law, because doing so would be utterly inconsistent with federal jurisprudence over the last 80 years. Kagan’s response shines a spotlight on the fact that the Constitution exercises little restraint upon the activities of our national government. This is dangerous territory.
There are rearguard actions from time to time. The Court invalidated campaign finance reform early this year, judging it to be a violation of first amendment rights—for which the justices were upbraided by President Obama on national television during a State of the Union Address. Yet, by and large, Congress acts with impunity to intervene in our economic affairs, usually justifying itself (in those rare cases when it feels the need to do so) by recourse to the commerce clause.
Perhaps it’s worth revisiting that passage from our founding document, on which millions of pages of federal regulation have been piled. Can it support such weight?
Congress shall have power, it says, “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” That’s it. The original purpose of this directive with respect to commerce “among the several States” was to ensure that there would be no interstate trade barriers. The formation of a vibrant national economy, the framers correctly understood, could not very well proceed when Ohio and Michigan erected tariffs against each other. So, the intent of the commerce clause was to protect the principle of free trade within the United States, leaving other financial and mercantile regulatory authority to each state.
Taking the Constitution seriously is important because the document forms the basis for the rule of law in this country. By ratifying it, the states and the citizens thereof affirmed the truth of a great paradox: Enacting limitations on ourselves is the only way to guarantee lasting and genuine freedom. It was a profoundly moral endeavor. The Christian notion of sin lay at the heart of many Americans’ belief that the tendency toward corruption and aggrandizement in government officials—and the potentially destructive whims of democratic majorities themselves—must be guarded against not only by promotion of personal virtue but also by legal instruments such as constitutional separation of powers and checks and balances.
For the most part, the Supreme Court honored the intent of the commerce clause until the 1930s, when the force of public sentiment and political pressure stemming from the Great Depression began to pry the lid off, loosing its potential as a Pandora’s box of federal government programs reaching into every corner of American life. In 1942, the Court defended a production quota on wheat set by the Department of Agriculture, upholding the prosecution of an Ohio farmer for growing too much. When he used his excess, the decision explained, he wouldn’t be buying that amount on the market. His flouting of the law thus affected interstate commerce.
Quod erat demonstrandum: The government can tell you what and how much to grow. Why can it not also tell you that you must purchase health insurance (and therefore what kind, and from which approved vendors)? And why can’t it tell you what and how much you may eat?
Our hope lies in our belief that, when a law is “dumb” enough, nine fellow Americans on the Supreme Court will have the good sense to strike it down. But we will be dependent on their sense alone. Although they will invoke the Constitution as a fig leaf for whatever judgment they render, we know the truth: Its value as a curb on government action—and therefore as a safeguard of freedom—was all-but-destroyed long ago.
Last Saturday Pope Benedict XVI addressed a group called Italian National Civil Protection, made up largely of volunteers. This is the organization that provided much of the crowd control at two of Rome’s largest public events, the World Youth Day in 2000, and the funeral of Pope John Paul II in 2005. (I was in Rome for both events and can personally attest to the surprising order these volunteers brought. If only the same order could be seen in everyday Roman life … )
Benedict took the opportunity to remind the volunteers of their particular vocation to protect persons and their dignity and also compared their service to that of the Good Samaritan. These volunteers choose to serve when others decline out of indifference or hardness of heart.
The Holy Father then reiterated one of the central themes of his first encyclical Deus Caritas Est, that while the State is responsible for the provision of justice, justice is not enough to make a society fully Christian. A Christian society must not rely on the State to provide what is most essential, i.e. charity, and must go beyond the strict provision of rights and duties. Here’s the key paragraph from Saturday’s talk, translated from the Italian:
As the Gospel reminds us, love of neighbor cannot be delegated: The State and politics, even with the necessary concern for welfare, cannot substitute it. As I wrote in the encyclical Deus Caritas Est: “Love will always prove necessary, even in the most just society. There is no ordering of the State so just that it can eliminate the need for a service of love. Whoever wants to eliminate love is preparing to eliminate man as such. There will always be suffering which cries out for consolation and help. There will always be loneliness. There will always be situations of material need where help in the form of concrete love of neighbor is indispensable.” (n. 28). This recalls and will always recall personal and voluntary commitment. Because of this, volunteers are not “stopgaps” in the social net, but persons who truly contribute to outlining the human and Christian face of society. Without volunteers, the common good and society cannot last for long, because their progress and dignity depend in large measure on those persons who do more than their strict duty.
Of course, most people assume that the State is and should be responsible, at a minimum, for public order and safety. But with his praise and gratitude for the volunteers, the Pope is not suggesting that they should supplant the state’s legitimate functions. However, these legitimate functions rarely, if ever, incorporate a ministry of love, which is essential to a humane social order. When the volunteers successfully provide order and safety for millions of visitors to Rome, they are doing so much more than their “strict duty.” Indeed, they are showing us what a true “service of love” looks like.
Kathleen Parker has a major case of secular reason sickness and it needs to be cured. I’ll keep this short and simple. Here is an offensive line from one of Kat’s latest columns:
How about social conservatives make their arguments without bringing God into it? By all means, let faith inform one’s values, but let reason inform one’s public arguments.
Problem #1: Social conservatives very rarely argue for their public policy positions on the basis of straight-up revelation. It is much more common to hear them talk about scientific evidence that life begins from conception (which could be found in an embryology textbook, for example) than to hear a scriptural exegesis of, say, Jeremiah 1. If anything, American social conservatives have worked quite assiduously to persuade their fellow citizens without direct appeal to revelation.
I think the Yale Law professor Stephen Carter was more correct several years ago when he complained conservative Christians relied on a platform that lacked spiritual distinctives and simply mimicked Republican positions. Mr. Carter is a scholar in the area of law and religion. His observation is well-informed by a review of recent history and current events.
Let us not forget that when some Christian leaders hid behind the separation of church and state to avoid addressing topics like Vietnam, the civil rights movement, and nuclear proliferation, their liberal colleagues were applauded for highly public spiritual approaches to those controversies. When liberals do it, we call it “speaking truth to power” or “speaking prophetically.” When conservative religionists enter the political process, everyone suddenly frets about impending theocracy.
Problem #2: Ms. Parker acts as though everything we discuss in politics can be parsed scientifically. This is the same sort of casual toss-off we get when some self-satisfied personage says, “You can’t legislate morality.” Really? Hate crimes? The illegality of segregation? A welfare state? Human rights?
The simple fact is that politics concerns itself with the realm of value as well as the realm of fact. There are both religious and philosophical approaches to questions of value. Is there any compelling reason to commit epistemological segregation, Ms. Parker? Must the religious contestants sit at the back of the bus to satisfy you?