Query:

During the hearings in Dobbs v. Jackson last week, concerning the challenge to Mississippi’s ban on abortions after fifteen weeks of pregnancy, Justice Sotomayor commented that besides abandoning stare decisis, striking down Roe v. Wade would be tantamount to abandoning the Court’s neutrality.  I would hold that the Court has already done that in Casey when Justice Kennedy decided to expound on the “heart of liberty.”  That said, is a sane jurisprudence possible in liberal regime?  If liberty is thus, how can a society, let alone law, actually arise and endure?

Reply:

Thanks.  Since you’re asking several related questions, let’s sort them out.

Your first question is “Did the ‘mystery passage’ in Planned Parent v. Casey mark the Court’s abandonment of neutrality?”  I would say no, because the Court never was and never can be neutral; neutrality is not a coherent idea.  You may mean that in Casey the Court took sides on abortion, but it did that in Roe too.  Someone might argue that Roe didn’t really take sides, because it didn’t recommend abortion, but only permitted the choice to abort.  However, it was pro-choice only in the sense that Pontius Pilate was pro-choice about crucifying Jesus, that Stephen A. Douglas was pro-choice about slavery, or that a polygamous marriage law is pro-choice about whether to have more than one wife.  Under the pretense of not taking sides, Pilate sided with those who wanted permission to commit judicial murder, Douglas sided with those who wanted the territories to be able to have slaves, and polygamous marriage law sides with those who want men to be able to have more than one wife.

Don’t get me wrong:  I don’t mean one should take sides in the sense that wokeists take sides.  Wokeism is purely consequentialist.  It wants certain things to happen, and defines justice as getting its way.  At least wokeists don’t maintain the pretense of neutrality!  But they are non-neutral in the wrong way.  They believe in taking sides with the person with the right skin color, provided that he also has the right revolutionary attitude.  No, justice means taking sides for justice, and this is not an empty idea, because justice is not a nothing but a something.  To take a leaf from Justinian’s Institutes, justice means living honorably, injuring no one, and giving to each person what is due to him – and we should always take sides for that.  One might object that in order to implement the idea we have to take sides on still more issues, because we have to judge what it means to live honorably, what counts as injury, and what, in fact, is due to each person.  Exactly.  That is my point.  There is no such thing as neutrality; one cannot judge by refusing to make a judgment.  One can only pretend to do so.

For an analogy, think of baseball.  Some people think the rules of baseball are neutral because they don’t tilt in favor of one team or another.  But of course, in a way, they do tilt.  They are just, but not neutral, for they give the advantage to those teams which demonstrate the greatest skill in the playing of the game.  True, the rules don’t tilt toward irrelevancies, siding with the team which has the brightest uniforms or which pays the biggest bribes to the umpire.  But the reason isn’t that they don’t tilt – it is that instead, they tilt toward skill.  That is what baseball is about, as society is properly about justice.

Your second question, I think, is “What sort of concept of liberty does the ‘mystery passage’ express?”  Again we run into an incoherency.  The statement that “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” has infinite breadth and zero depth.  When Justice Kennedy says “beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State,” he blurs together two different questions.  The reasoning seems to be that because the state may not tell me what to believe, therefore it may not tell me what to do.  But that is absurd.  Suppose we really did shape our law on the premise that I have an absolute right to act upon my beliefs about existence, meaning, the universe, and human life.  Then the circle of devastation takes in a lot more than unborn babies.  If I should happen to believe that my next door neighbor shouldn’t exist -- or that his existence has no meaning -- or that he doesn’t belong in the universe as I conceive it -- or that he doesn’t really have a life – then, apparently, I may kill him.  In fact, I may do anything I please.

It is hard to believe that Justice Kennedy actually intended to express a universal right to do anything whatsoever – yet that is what his premises implied.  His way out of the conundrum was not logical, but pragmatic, for any monarch who says “You may do anything” must also say “but I get to say what ‘anything’ includes.”  The judges will decide.  Obey.

Your final question is “Is a sane jurisprudence possible in a liberal regime?”  The answer depends on what you mean by “liberal.”

●  If liberalism means the idea that I may do anything I please, then obviously no.

●  If liberalism means neutrality, then still no.

●  If liberalism means wokeism, into which liberalism has degenerated (since neutrality was never more than a lying mask), then we are still further into no-land.

●  But on the other hand, if liberalism means believing in a political order devoted to the rule of law and the common good, with recognition of natural law, tight constitutional limits on government powers, and generous protection for natural rights -- then yes.  In such a regime a sane jurisprudence would certainly be possible.  Although sometimes today’s liberals fallaciously try to read their own very different views back into the American founding period, that is the sort of political order the American founders actually had in mind – as anyone who reads them may verify!

Reader’s follow-up:

Thank you for your response.  My own reading of history seems to indicate that while the Founders understood the natural law, they failed to ensure that the system of government would be able to resist degenerating alongside the population who abandoned it.

Further reply:

Well, yes -- but can any system of government resist degeneration if the people become corrupt?  The Founding generation was convinced that a republic can function only with a certain level of virtue among both the people and their rulers.  One may be able to get a little better government than one deserves -- but not a great deal better.  I think this is correct.

Such devices as checks and balances, or voting for virtuous candidates, can help, those thinkers thought, but they aren’t a substitute for virtue.  They are only a sort of hamburger helper, making a little bit of virtue go a little further than it otherwise would.  For politicians who are gravely deficient in virtue won’t limit themselves to Constitutional methods of political competition, such as checks and balances -- to win, they will bring down the system.  And citizens who are themselves defective in virtue won’t vote for the most virtuous candidates –- from sheer envy, they may even vote for the least.  And before it comes to that point, they will vote for whoever offers them the biggest bribes and subsidies.  (Who ever heard of anyone voting like that?)

The Founding generation also believed that bad laws and bad moral example on the part of rulers can make people worse.  Whether they thought good laws and good moral example on the part of rulers can make people better is not so clear.  With Thomas Aquinas, I think good laws and example can do that – though of course their power to do so is quite limited, and can’t undo the effects of the Fall.  Besides, the chief springs of virtue are not laws and rulers, but the family and the Church, the former a natural, the latter a supernatural institution.

In common with the historical tradition of republican thought, most of the thinkers of the Founding generation also believed that republics have a life cycle.  If they are virtuous at the beginning, they prosper.  If they prosper, however, then the people grow rich -- then they grow too rich -- then they grow indolent and corrupt -- and then the republic collapses.  The implementation of what some of these thinkers called new discoveries in the science of politics wouldn’t prevent things from ever going downhill, but only give the republic a significantly longer shelf life than it would otherwise enjoy.  The “new order for the ages” wouldn’t last forever, but only for a long time, and hopefully, one day, become a historical model for future times.

I’ve enjoyed this exchange.  Thanks for allowing me to post it.

The other day my students in a class on the American Founding were reading some “election day sermons” from the period.  Election day sermons were a very big deal:  They were long, detailed talks about the political rights and duties in the eyes of God, given to state legislatures by invited ministers on the days when newly elected representatives took their seats.  Many of my students are surprised to find that the Founders thought God important – they tell me their education has never mentioned it.

Since some of these election day homilists sharply criticized Catholics, a number of the students wanted to know how Catholics differ from Protestants.  That’s a harder question to answer than you might think, and I hope my readers will judge this effort charitably.  For people who want to understand Protestant-Catholic disagreements encounter several difficulties.

One difficulty is that although the Magisterium speaks for Catholicism, no one speaks for Protestantism.  There are tens of thousands of Protestant denominations, and not all of them even believe in having faith statements or creeds.  We can get partly around that difficulty by speaking of what most, many, or some Protestants believe.

Another difficulty is that the Catholic Church is often said to teach things that bear no resemblance to her actual teaching.  When I was a boy, I was taught the canard that Catholics believe in worshipping idols, and I’ve run into people who are convinced that Catholics think Mary is a goddess.  We can get around that difficulty too, by reading what the Magisterium says the Church believes instead of what opponents say the Church believes.  The opponents, of course, include some Catholics.

But there is still another difficulty, and this one is much greater.  For it isn’t always easy to distinguish real disagreements between Catholics and Protestants from merely verbal ones. 

For example, Catholics and Protestants often use the word faith differently.  Thus,

●  When Protestants, or most Protestants, say we are saved by faith alone, they usually mean that we are made right with God by totally receiving Christ into ourselves, heart and mind and soul.  But Catholics believe this too.

●  When Catholics deny that we are saved by faith alone, they usually mean that we are not made right with God merely by intellectual belief, by the mind without the heart; we must be conformed to Christ.  As St. James wrote, “Even the devils believe – and they tremble.”  But many Protestants believe this too.

Another example is that Protestants and Catholics often use the word works differently.  Thus,

●  When Protestants, or most Protestants, deny that “works” or deeds play a role in our becoming right with God, they usually mean that we can’t earn our way into God’s approval by anything that we can do by our own human power.  We can neither forgive ourselves nor fix our own brokenness; only God can.  But Catholics believe this too.

●  When Catholics say that works do play a role in our becoming right with God, they mean what St. Paul meant when he said that we are saved by faith “working in love.”  We have to cooperate with the divine grace that fixes our brokenness, pouring back out the love that is poured into us.  Even so, cooperation with grace isn’t a “work” in the sense of something that we perform by our own power, for the virtues of faith and love are supernaturally infused by God, and the ability to cooperate with the gift of grace is itself a gift of grace.  But many Protestants believe this too.

So whatever the differences between Catholics and Protestants concerning faith and works, they are subtler than the catchphrases often used to refer to them.

On the other hand, there certainly are a number of real, important disagreements, divisions that are not merely verbal.  For example, most Protestants believe that what Catholics and some Protestants call “sacraments” are mere symbols.  By contrast, in the felicitous phrase of philosophers Peter Kreeft and Ronald Tacelli, Catholics believe that the sacraments are “symbols plus.”  For example, the water of baptism is certainly a symbol, but it is more than just a symbol, for it symbolizes what the grace of God is actually doing by means of the water at that very moment – giving someone spiritual rebirth through Christ.  This view of the sacraments has further implications.  It means, for instance, that the sacraments aren’t just ritual performances, but the very lifeblood of sharing in God’s life, and that one doesn’t become a Christian just by saying “Okay, I’m a Christian now.”

Another example is that many Protestants believe in the principle sola scriptura, “Scripture alone.”  Although Catholics agree that the biblical Scriptures are true and authoritative, they deny the sola, the “alone,” because they do not consider the bible self-interpreting – in their view, it must be understood in the light of Apostolic tradition and with the guidance of the Holy Spirit, through the Church.  In their view, if we followed the principle sola scriptura, then we would have no way to know what counts as scriptura in the first place, for the canon of Scripture did not establish itself.  It was established by the Church, which St. Paul calls the “pillar and bulwark of the truth.”

Still another sharp difference is that Catholics believe that a person who is in right relationship with God can fall out of that relationship by persistently committing or supporting grave sin without repenting.  Many Protestants deny this; the saying is “Once saved, always saved.”  In their view, someone who falls into obstinate, unrepentant sin must never have been in right relationship with God in the first place.  Some even say that if someone really does enter right relationship with God, his future sins are saved in advance without need for repentance– a view that not only Catholics, but probably even most Protestants find dangerously mistaken.

Now it gets complicated, for on the other hand, many Protestants believe in “imputed righteousness.”  This means that God declares the redeemed person as just and acceptable in His sight, even though the person may be rotten and crumbling with sin on the inside.  By contrast, the Catholic view is that when God declares the redeemed person just and acceptable in His sight, He says this because it is true – His grace actually changes the person inwardly from a rebel to a friend (albeit a friend who still needs a very great deal of interior repair).

Even in discussing the last difference, verbal difficulties get in the way of identifying the actual point of disagreement.  For consider:  The Protestant Reformer, Martin Luther, is famous for saying that redeemed persons are simul iustus et peccator, “simultaneously just and sinners.”  Catholics say this couldn’t be, because to be a sinner is to be in a state of rebellion against God, and one cannot be both friends with God and in rebellion against him at the same time.  Yet part of the problem may be that many Protestants use the term “sinner” not only for persons in rebellion against God, but also for persons who merely possess inclinations to sin.  After all, both sides agree that we may possess inclinations to sin and yet be resisting them and obediently submitting to the Divine Surgery.  One could perhaps be called simultaneously just and a sinner in the latter sense – but Catholics consider this way of speaking dangerously misleading, because it uses the same term for enemies of God and for friends who are in difficulty.

There are a lot of other disagreements too, but perhaps you can see what makes understanding them difficult.  For centuries, Protestants and Catholics have been “talking past” each other.  Some theologians involved in inter-religious dialogue think that the two sides are finally getting closer, just because each is paying closer attention not just to what but also to how the other speaks.  A milestone in this dialogue was the Joint Declaration on the Doctrine of Justification signed by the Catholic Church and representatives of the Lutheran World Federation in the late ‘nineties.  The doctrine of justification concerns how a person becomes just and acceptable in the eyes of God.  Although the two sides hardly became one, they reached sufficient agreement to withdraw the mutual anathemas of the Reformation era – which is stunning.

At the time, when I was still firmly Protestant, the Joint Declaration struck me like a thunderclap.  Reading it, recalling Luther’s words that justification was the article on which the Church stands or falls, I thought to myself, “The Reformation is over.  Now it’s just a matter of time.”  Reaction among well informed Protestants whom I knew was quite different.

Most were simply indifferent.  Intuitively even if not doctrinally congregationalist, they viewed all faith as local:  Who cares what these ecclesiastical bodies said?  Among those who did take an interest, some held that the agreement was merely verbal, a trick of ambiguous wording, signifying nothing.  Others held that it was real but unimportant, because the article on which the Church stands or falls isn’t justification, as Lutherans say, but the sovereignty of God, as Calvinists say (what has Wittenburg to do with Geneva?)  Still others held that it was real, but that the representatives of the Lutheran World Federation did not speak for their views, or even for all Lutherans.  A sizable group conceded that the Declaration would be important if the Catholic Church meant what she said, but that this would have required renunciation of the Council of Trent, therefore, she must have been lying.

Maybe reconciliation really is just a matter of time.  Maybe, though, of eschatological time.  Come quickly, Lord Christ.

An acquaintance, hearing someone speculate that some of the advocates of defunding the police may be less than transparent about their motives, asked, “Isn’t that just a conspiracy theory?”  Another fellow I spoke with reacted to someone’s suggestion that not all sexual acts are morally equivalent by demanding, “Isn't that just homophobia?”  And a student responded to the reasoning of a religious author by sneering, “Isn’t that just a religious argument?”

What’s I find interesting is that although all three persons thought they were heading off fallacies, actually all three were committing them.  The kinds they committed were fallacies of distraction.  Each one deflected the question instead of considering it, then considered the deflection a rebuttal.

My acquaintance didn’t inquire into whether the people in question really were concealing their motives -- much less whether someone who suggests concealment is necessarily suggesting cooperation in the concealment – much less whether anyone ever does conceal his motives – much less whether anyone ever does cooperate in the act -- much less whether that could have been happening in the case at hand.

The second fellow didn’t consider whether the motive for making a suggestion automatically disqualifies it – much less whether the only possible motive for making moral distinctions among sexual acts is a pathological fear or “phobia” – much less whether all such acts really are morally equivalent.

And the student didn’t reflect upon whether the religious writer’s argument really was premised on his faith – much less whether an argument might be valid even if it were premised on faith – much less whether the argument at hand was valid.

I sometimes hear that people need more training in formal inference.  Maybe so.  But we have a much greater need to learn about “informal” fallacies, errors that occur not because we violate the rules of inference but because we are distracted from the point we are discussing.  This brings me to one of my pet peeves.  For when we do teach about informal fallacies, we often compound the problem by teaching them – well -- fallaciously.

For example, students are endlessly warned against reasoning ad populum, which is appealing to what most people think.  But taking seriously what most people think is not always a fallacy.  We shouldn’t take seriously the opinions of most people about things they know nothing about, but we should certainly take seriously the opinions of most people about matters of shared experience or inside knowledge.  For example, the only reason that can be given for the proposition that when people do things, they do them for motives, is that all people recognize that they do.

Similarly, students are tirelessly cautioned to think for themselves and take nothing on authority.  But giving special weight to the opinion of someone who knows more than we do about something is not always a fallacy either.  It is one thing to trust someone’s political opinions just because he is a cancer expert, but a very different thing to give weight to his opinions about cancer.

Bad reasoning is pervasive.  We all slip into it at times.  The great thing is to catch ourselves.

Query:

Your blog has been helpful to me.  I have a question regarding how to get rid of what Thomas Aquinas would describe as a disordered appetite.  Is the following explanation right? -- When a particular appetite is disordered in a certain way, and subsequently the person seeks to correct it by directing towards its proper object, then ultimately, with a lot of sincerity and time and effort, he is able to do so.  Once the disorder is corrected, the disordered appetite no longer exists.

Reply:

Not exactly.  A few distinctions may be helpful.  I think you are asking about natural appetites, such as the desire for food, rather than acquired appetites, such as the appetite to play chess.  An acquired appetite can exist only as a modification of one or more natural appetites.  For instance, the appetite to play chess is a modification of the natural appetite for the exercise of our natural powers.

Natural appetites always exist in some form, but they may exist in either well-ordered or disordered conditions.  For example, the natural appetite for food is well-ordered in a temperate man, but disordered in a glutton.  Although the natural appetites are good in themselves – they belong to our nature and we ought to have them – a disorder in a natural appetite is bad for us.  So desiring food is good, but gluttony is a vice.

You’re entirely right to say that the appetites become well-ordered through virtue.  Some virtues, such as temperance, are called “acquired” because they are developed by discipline and habituation.  What your account leaves out is that there also exist other virtues, epitomized by faith, hope, and charity.  These other virtues are called “infused” because they are poured into the soul by the grace of God, made possible by the atoning work of Christ. 

The infused virtues make the exercise of the acquired virtues easier.  For example, charity makes it possible to will the true good even of persons for whom we do not have natural affection.  But there is more, because the infused virtues don’t just discipline motive – they uplift and transform it.  It is a good thing to love my wife.  It is quite another thing – and much better – to participate in the very love with which God loves her.

Human beings must cooperate with the grace that creates the infused virtues in us, but even the very power to cooperate with grace is a gift of grace.  Unlike the acquired virtues, the infused virtues cannot be ginned up by our own power.  Apart from grace, we are helpless to attain them.

So the infused virtues can accomplish a lot toward putting the soul in good order, and that’s what’s right about the way you put it.  With effort, I may make good progress.  But eventually I hit a wall – or a ceiling -- through which I can break only with the help of divine grace.

Over the last few years I’ve heard this more often from my students:  Federalism is problematic because if different states do things differently, they are unequal.  Equality is taken to mean uniformity.  The gist of the complaint isn’t that people in some states may bear greater burdens, or that they may participate less fully in the common good, but just that they don't all act the same way.

I find this view especially interesting, because in other contexts everyone sings the praises of “diversity” – but not in this case, in which diversity may actually count for something.