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Tuesday, June 12, 2007

Strict Constructionists, The Bible, Democracy and the Natural Law

When Rudy Giuliani says his appointees will be like Justices Antonin Scalia and Clarence Thomas, as if they're peas in a pod, I don't think he has any idea of what he's talking about. True, they often arrive at the same place, but it's by completely different paths, as we shall see.

Scalia is certainly not the ideologue he's made out to be. He believes in a natural law and believes he can discern it, but his position is that the Court (since Erie RR v. Tompkins [304 US 64, 78 (1938)]) is not free to use its own determination of natural law to override legislation. His judicial philosophy is that we have no choice but to achieve a provisional morality (or truth, I imagine) by consensus.

This rides on a kinda Rawlsian acknowledgement of what Aquinas, et al., admitted—-that there is a natural law, but interpretations will vary. Natural law, in all their views, of course must guide legislation. Unless one believes that questions of right and wrong are not germane to how a society orders itself.

These things get abstract to the point of nonsense in a hurry, because some believe the language of "rights" or tradition supersedes right and wrong. Justice Thomas disagrees, in that he would never subordinate his moral conscience to novel but reasonable legal theories or even to stare decisis. This is why John Locke wanted to drum the Catholics out of public life, as their allegience is to something higher than man's law. Scalia, however, would be quite acceptable to Locke, as he appears to have become a "reasonable" man, and stare comes with the performance of his duties.

Surely, using the Bible as “proof” to someone who rejects it is foolish if not tautological. It certainly stands to reason to use the language of the Other while trying to sway him to your position. Natural law was rehabilitated by Catholics in the past century as a lingua franca, and is achieving increasing acceptance by other philosophically-minded Christians as well.

But on the other hand, sometimes a “reasonable” theory of law is inadequate to the task, or the locutor is. That’s why Justice Thomas boldly holds to the asserting natural law, as simple as the statement “slavery is wrong.” Many reasonable men tried to make the reasonable case against slavery over the centuries, but with only a non-foundational view of human rights (i.e., absent the endowed by their Creator part), it was a tough go.

And so, because we are all citizen-rulers in this here democracy, sometimes, joining that Rawlsian consensus that x is wrong is all that remains, regardless of whether the minority thinks the way the judgment was reached is “reasonable.” This is Scalia’s pro-democracy, non-ideological view of law. However, since the Constitution, as a social contract, permitted slavery, Scalia's legal philosophy would be powerless to overturn something like Dred Scott.

Dang. Such are the limits are reason and of law.

To illustrate, we as a society have decided that cruelty to animals is wrong, and have codified that sentiment into law. The abstract “neutral” theories of law that have been bandied about of late cannot reasonably accomodate that sentiment. A bland, neutral reading of property rights yields that animals are property that we can dispose of as we see fit and nobody can say boo.

But that is not society, it is not the law, it is not “rights,” and it’s not reality. Cruelty to animals is wrong because it’s wrong. Sometimes we cannot transcend such tautologies; words and abstractions fail us, yet we ban it anyway. And if Peter Singer and PETA can convince a sufficient number of Americans that meat is murder, so shall it be.

It is often proposed that the Bible must be left at the door when we decide how we should legislate. But it must be noted here that Christians believe revelation is real. If the Constitution is truly neutral on religion, it must be agnostic, not atheistic. If one votes in this here democracy that x is wrong because God said so, that will have to do. Agnosticism must leave the room to answer, maybe He did.

On this, Scalia and Thomas would agree, but for very different reasons. They are not pod people. I find Rudy to be a thorough Lockean; he should adore Scalia, but Thomas should scare the bejesus out of him. Once you get into questions of right or wrong, the sky's the limit.



Defensor Pacis said...

I'm with you on Guiliani, and Scalia and Thomas. You lose me on Locke. More importantly you lose Locke on Locke, and it's not surprising given your intellectual sympathies.

"A great many things which we have been bred up in the belief of, from our cradles, (and are notions grown familiar, and, as it were, natural to us, under the Gospel) we take for unquestionable obvious truths, and easily demonstrable; without considering how long we might have been in doubt or ignorance of them, had revelation been silent. And many are beholden to revelation, who do not acknowledge it."

John Locke, The Reasonableness of Christianity.

Locke didn't want Catholics because of the fear their allegiance would be elsewhere (Catholics are out because they believe something, atheists are out because they don't?).

If he's a fraud on religion he sure spent the last years of his life oddly, writing a paraphrase of St. Paul's letters, a treatise on the reality of the biblical miracles, and the Reasonableness with not one, but two further volumes defending it. To complete the charade he had the Psalms read to him on his deathbed and received communion. I think too much has been read into how the philosophes ran with an interpretation of Locke's epistemology . . . we look back through that lens at our peril.

(I doubt we'll settle this here, and I know it's perhaps a throw-away line in a post about other interesting things, but I see it as an honorable duty to skirmish a bit sometimes when it comes up.)

Mike D'Virgilio said...

I'm not much of a philosopher, so I can't speak to the more profound thoughts in this debate. But I'm wondering that if two people get to the same destination by different paths, does it really matter?

I'm sure in some ways it does, but I'm sure in other ways it doesn't. I'm also not sure this is analogous, but I was thinking of certain agnostics and atheists who happen to be pro-life. Bernard Nathenson was one such co-belligerent in that cultural battle. He was an abortionist who for completely non-religious reasons realized that killing pre-born human life just wasn't right.

There are other secular liberals who have come to the same conclusion, and I welcome their voice in this most important issue. Is this comparable to Scalia and Thomas, I don't know. But as important as presuppositions are, sometimes people come to the right conclusions in spite of themselves.

Tom Van Dyke said...

Thx for the replies, guys.

Mike, I laid out what I think are two defensible but disparate positions, Scalia's and Thomas'. For constitutional reasons, I think both would overturn Roe v, Wade. However, I think Scalia would leave it to the states, but I think Thomas would vote his interpretation of natural law and view any state's pro-abortion law as wrong and a violation of fundamental (pre-?) human rights.

Just a guess, and an analysis of their judicial philosophies. When push comes to shove, who knows?

Hehe. Dr. Watson, I've recently quoted that exact passage. What I get for sure is that the United States was founded not so much as a "Christian Nation," as in Jesus Christ is divine, but on Christian principles. Or if I may quote Jurgen Habermas, who has cred with most everyone as he's a giant in philosophy and also known as an atheist/secularist:

“For the normative self-understanding of modernity, Christianity has functioned as more than just a precursor or a catalyst. Universalistic egalitarianism, from which sprang the ideals of freedom and a collective life in solidarity, the autonomous conduct of life and emancipation, the individual morality of conscience, human rights, and democracy, is the direct legacy of the Judaic ethic of justice and the Christian ethic of love.”

Now, had Locke lived in a time and place that permitted atheist/secularists, I think he'd have written much the same, and Leo Strauss' guess that Locke buried his philosophy under the cover of Christianity lies unrefuted.

But Locke was a complex man. Perhaps he disguised his Christianity because his real persecutor was the Enlightenment. That would be cool. I do that sometimes meself, esoterically speaking, of course. ;-)

S. T. Karnick said...

Tom, I think that your distinction between two kinds of thinking, represented by Scalia and Thomas, is valid and insightful. I agree with Dr. Watson that you do Locke an injustice, especially given the evidence Dr. Watson adduced regarding Locke's evidently sincere Christianity. However, nobody's perfect. Keep up the good work.

Tom Van Dyke said...

Cheers, ST. Strauss catches Locke in an apparent contradiction: Locke says one is obliged to honor his father and mother, but only if they treated you somewhat decency. That's not biblical.

Since Strauss believes great thinkers like Locke are not prone to sloppy thinking, the only other explanation is that the true (subversive) thoughts remain somewhat hidden, available only to the careful reader.

I'm not sold on Strauss' Locke, although Locke's The Reasonableness of Christianity seems more a secular tract than a religious one, defending philosophical Christianity.

Locke, natural law, etc. The question remains open, as do I.

S. T. Karnick said...

Tom—I haven't read the Strauss argument you cite here, but I suspect that there may be other interpretations available that accord with a Christian Locke. I certainly would never see one such "apparent contradiction" as dispositive of anything. People and ideas are too complex for that to be so. Sam

John H. Watson said...

I'd be the last person to describe Locke as an orthodox Christian. I think it's correct to say that he did not believe in the Trinity (he doesn't deny it necessarily, but he doesn't affirm it either and in a correspondence with a bishop he goes so far as to say he can't find it explicit in scripture).

There are some tensions in Locke's thought, though I don't find the "honor your father and mother" one so vexing (more difficult is Locke's describing marriage in the 2nd treatise as something that can be given up once the kids are grown).

I tend to think that many of the Straussian puzzles for Locke grow more from a misunderstanding of what Christianity has to be rather that what Locke says (one scholar recently argued that Locke was secular b/c he destroyed Filmer, as if Filmer was THE genuine representative of Christianity).

What I'd like to know is this: if Locke went to so much trouble to hide his true underlying beliefs, the trouble to drop hints in all of his writings, have communion, encourage religious practice in personal correspodence, and the like, why didn't he affirm the Trinity?

Wouldn't it have made his disguise, and indeed his influence, that much greater? If he's putting on the Christian mask, why not do so completely?

Tom Van Dyke said...

The rule of esoteric writing is that one may be ambiguous, but does not lie. Those who would persecute the subversive philosopher will hear the comforting words they want to hear and spare him the stake; the careful reader will notice what the philosopher did not say, but easily could have.

As, in this case, that Jesus Christ is God. When Locke refers to Him as Our Savior, which he does often, that could simply be employing a common usage.

Did Locke believe Jesus died for our sins, and opened the door of salvation? Questionable. What was Jesus' nature, according to Locke? He is intentionally vague, no?

(BTW, if the philosopher simply lied about stuff, even the careful reader would not be able to know what was going on.)

I agree with you in a general sense: I've found many philosophers in error when they try to address faith and Christianity in particular. They are monolingual.

STK, I believe most interpretations of Locke are as some recognizable sort of Christian. Face value. I'm defending Strauss' here for the sake of discussion, and inquiry.

I've been reading Locke's Reasonableness of Christianity of late, and a jaundiced (Straussian) eye makes one wonder. Wonder is sufficient. We all take too many things at face value and hear only what we prefer to hear.