I think it
is a terrible argument, one that rests on a distortion of the principle of
subsidiarity. We can see this both from
what the principle of subsidiarity actually says, and from how the Church has
treated the issue of abortion. A classic
formulation of the principle is given by Pope Pius XI in his encyclical Quadragesimo
Anno. He famously says
there that “it is an injustice and at the same time a grave evil and
disturbance of right order to assign to a greater and higher association what
lesser and subordinate organizations can do.” If this sentence were all there is to the
principle of subsidiarity, it is easy to see why someone might think it
licenses leaving abortion to the states.
But that is not all there is
to the principle. Let us look at the
larger context of this remark from Pius XI.
Here is the relevant passage:
When we speak of the reform of institutions, the State comes
chiefly to mind, not as if universal well-being were to be expected from its
activity, but because things have come to such a pass through the evil of what
we have termed “individualism” that, following upon the overthrow and near
extinction of that rich social life which was once highly developed through
associations of various kinds, there remain virtually only individuals and the
State. This is to the great harm of the
State itself; for, with a structure of social governance lost, and with the
taking over of all the burdens which the wrecked associations once bore, the
State has been overwhelmed and crushed by almost infinite tasks and duties.
As history abundantly proves, it is true that on account of
changed conditions many things which were done by small associations in former
times cannot be done now save by large associations. Still, that most weighty principle, which
cannot be set aside or changed, remains fixed and unshaken in social
philosophy: Just as it is gravely wrong to take from individuals what they can
accomplish by their own initiative and industry and give it to the community,
so also it is an injustice and at the same time a grave evil and disturbance of
right order to assign to a greater and higher association what lesser and
subordinate organizations can do. For
every social activity ought of its very nature to furnish help to the members
of the body social, and never destroy and absorb them.
The supreme authority of the State ought, therefore, to let
subordinate groups handle matters and concerns of lesser importance, which
would otherwise dissipate its efforts greatly. Thereby the State will more freely,
powerfully, and effectively do all those things that belong to it alone because
it alone can do them: directing, watching, urging, restraining, as occasion
requires and necessity demands.
To forestall
confusion, note that “State” as Pius is using it refers to any more central
government, and thus, in the American context, would apply first and foremost
to the federal government rather merely to “state” governments, as that term is
commonly used in the U.S.
Now, what
Pius is saying here is indeed, in part, that if some social problem can be
adequately addressed by more local institutions (which would include families,
municipal governments, and provincial governments), then central governments should
leave things to them and not intervene.
But by no means does Pius leave it at that. He also says that there are some things that
central governments “alone” can do.
Naturally, this includes things that are the proper function of any
central government under normal conditions (such as national defense).
But it also
includes things that more local institutions might in theory be able to handle, but in practice cannot, because of “changed conditions” or the
requirements of some particular “occasion.”
In particular, says Pius, because of the “individualism” of modern
times, those intermediate institutions that traditionally came between
individuals and central governments have become so weakened that they are now
unable to perform some of the functions they were once able to. And this has left these functions in the
hands of central governments, as the only agencies left which can perform them. In these ways, the principle of subsidiarity
notwithstanding, there remain many functions which “necessity demands” that
central governments perform, either always and in principle or at least under
modern contingent circumstances.
Accordingly,
as Fr. Austin Fagothey’s well-known manual of ethics Right and Reason notes, after affirming the principle of
subsidiarity:
On the other hand, the state should provide a favorable
environment in which individuals, families, and voluntary associations can
fulfill their functions properly. It has
the right and duty to intervene when they fail to function as they ought or
cannot harmonize their activities for the common good. (p. 394)
Now, this
can include measures necessary to uphold the institution of the family
itself. The Catechism of the Catholic Church, in a passage that reaffirms that
“following the principle of subsidiarity, larger communities should take care
not to usurp the family's prerogatives or interfere in its life,” also teaches:
The family must be helped and defended by appropriate social
measures. Where families cannot fulfill
their responsibilities, other social bodies have the duty of helping them and of supporting the
institution of the family…
The importance of the family for the life and well-being of
society entails a particular responsibility for society to support and
strengthen marriage and the family. Civil
authority should consider it a grave duty “to acknowledge the true nature of
marriage and the family, to protect and foster them, to safeguard public
morality, and promote domestic prosperity.” (2209-2210)
Naturally,
there is no greater affront to the institution of the family than abortion,
which involves the murder of the very human beings for whose sake the family
exists in the first place. And
naturally, the Catechism explicitly teaches
that the right to life of the unborn child must be enshrined in law:
The inalienable right to life of every innocent human
individual is a constitutive element of a
civil society and its legislation:
“The inalienable rights of the person must be recognized and
respected by civil society and the political authority… Among such fundamental rights one
should mention in this regard every human being's right to life and physical
integrity from the moment of conception until death.”
“The moment a positive law deprives a category of human
beings of the protection which civil legislation ought to accord them, the
state is denying the equality of all before the law. When the state does not place its power at the
service of the rights of each citizen, and in particular of the more
vulnerable, the very foundations of a state based on law are undermined... As a
consequence of the respect and protection which must be ensured for the unborn
child from the moment of conception, the law must provide appropriate penal
sanctions for every deliberate violation of the child's rights.”
Since it must be treated from conception as a person, the
embryo must be defended in its integrity, cared for, and healed, as far as
possible, like any other human being. (2273-2274)
Note that
what the Catechism is saying is that
the right to life of innocent human beings, including the unborn, must be affirmed by the state and its
positive law as such. In no way does it indicate that it is
speaking only of more local governments but not of central governments. And even if one wanted to argue that such
laws needn’t be enacted by federal governments if the laws at more local levels sufficed, that would by no means
be the end of the story. For the
manifest implications of the teaching of Pius XI and of the Catechism is that more central
governments not only may, but must take action to prevent abortion if
in practice there is no other way to secure the rights of the unborn.
Hence,
suppose a number of states in the U.S. outlawed abortion, but others did
not. And suppose that there was no
politically realistic prospect of outlawing it at the state level in those
states that failed to do so. But suppose
also that it was nevertheless
politically feasible to impose a federal ban on abortion. Would respect for the principle of
subsidiarity require us to refrain from imposing such a ban? Not at all; on the contrary, when all the
considerations just spelled out are taken account of, it is clear that we would
be obligated to impose a federal ban
if we could. For in this scenario, there
would be no other way to protect the right to life that is, as the Catechism says, “a constitutive element
of a civil society and its legislation.”
Given what Pius XI calls “the evil of… ‘individualism’” that has
infected modern Western society and informs “pro-choice” rhetoric, it may be that
central governments alone can effectively suppress the evil of abortion.
Here is
another consideration. In the Church’s
canon law, there are some sins so grave that the penalties associated with them
cannot be lifted by one’s confessor. For
a long time, that included the procurement of abortion, the penalty for which
could, until recently, be lifted only by one’s bishop. Indeed, at one time only the pope had the
authority to do so. In his book The Soul of the Embryo, David Albert
Jones writes:
In 1588, in a decree called Effraennatam, Pope Sixtus V invoked the power of excommunication in
an attempt to restrain the growing practice of abortion during the Renaissance.
As his model he took the Decretals V.I2.5 and imposed the
sanction not only for abortion but also for administering contraceptive drugs. He also reserved the ability to lift the
excommunication to the pope alone. The
condemnation of abortion as homicide was not in any way novel. However, several aspects of the
excommunication were novel: it was promulgated to the whole Church (not just in
one diocese or region); it was reserved to the pope to be able to lift the
excommunication (not to a local bishop); and it included contraception as well
as abortion. This meant that any
abortion and any use of contraception anywhere in the Church had to be
reconciled personally by the pope. (p. 71)
To be sure,
as Jones goes on to recount, this proved unworkable, so that a later pope
limited the excommunication to abortion alone and granted local bishops the
authority to lift it. The point, though,
is that the Church has not regarded abortion as something which of its nature
ought to be dealt with only at the local level.
On the contrary, it takes it to be so grave an offense that at one time
the highest authority in the Church, the pope himself, alone could lift the
penalty associated with it. Whether
local or central authorities ought to deal with abortion is a prudential matter. The principle of subsidiarity does not by
itself entail that only local authorities ought to deal with it. And what is true of the Church is, mutatis mutandis, true also of the
state.
If the appeal to subsidiarity is intended to provide Trump with theological cover, then, it fails. He and his supporters may think his position is good politics, but no reasonable case can be made for it on grounds of natural law or Catholic moral theology.
Maybe a more politically viable policy for a pro-life administration would be to abolish abortion tourism. If abortion is illegal in Texas, you cannot drive to California to get an abortion. Maybe make a law that states may only provide abortions for people who reside in their state.
ReplyDeleteThat would actually be a defense of subsidiarity in one way and would also be something. That only the Federal government could do since states cannot really restrict travel of their residents across state lines.
Dr. Feser misses the point. A federal abortion ban is a non-starter because the U.S. government (i.e., the federal government) has no legitimate jurisdiction to enact such a law. Under the U.S. Constitution, jurisdiction over abortion (indeed, over all criminal law that does not have an interstate or international component) is left to the states. U.S. legislators take an oath, before God, to act in accordance with the Constitution. Accordingly, any legislator who would voted for an abortion ban would commit a mortal sin thereby, as would any president who signed it into law. Unless, of course, the Constitution was amended so as to give Congress authority to ban abortion nationwide.
ReplyDeleteThat said, the federal government has lawful jurisdiction over abortion in *some* contexts: Congress (and the executive branch, to the extent discretion has been delegated by Congress to the various executive agencies or to the President) can certainly defund abortion of U.S. taxpayer dollars, and can also ban abortion in the District of Columbia and the U.S. territories. The federal government can also outlaw abortion on federal property.
No, you're missing the point, which is not about U.S. constitutional law, but about what the principle of subsidiarity entails.
DeleteHaving said that, exactly what the federal government could do is a matter of controversy, but it could certainly take steps that would at least dramatically restrict abortion (e.g. through the Comstock Act). And as you acknowledge, the constitution could be amended.
Again, though, the post is not about what is possible or practical given existing U.S. law and political circumstances, but rather what would be allowable under the principle of subsidiarity.
Dr J Budziszewski suggests a whole list of actions that could be taken at the federal level to dramatically curb abortion , to quote him directly
Delete"First, the federal government must not be allowed to promote abortions, for example by performing them in military hospitals, by requiring insurers to cover them, by subsidizing them, or by denying medical personnel the freedom of conscience to refuse to assist in them.
Second, small restrictions on abortion can be advanced little by little even at the federal level, taking what we can get at each stage. An obvious first step is to require enforcement of existing legislation prohibiting the killing of babies who are born alive. Each such small gain will shift public opinion and prepare the way for the next small gain. Another small step could be putting an end to the practices which are used to evade the ban on partial-birth abortions. Presently, abortionists just stop the heart of a baby ready to be born and then deliver a dead baby.
Third, although turning the matter over to the states has changed nothing in the pro-abortion states, for the first time it has enabled pro-life states to do something for babies. So another aim of action at the federal level must be to preserve the ability of pro-life states to do so. For example, it must be made impossible to purchase mail-order abortion pills over state lines. Probably because most abortions are now done by pill, the number of abortions is just as high now as it was before Dobbs."
https://www.undergroundthomist.org/ending-the-culture-war-over-abortion
Ed, I usually enjoy your work, but I’m siding with the OP on this one. The reason almost every pro-lifer who opposes a federal abortion ban on non-practical grounds is constitutional law. Respectfully, your point about subsidiarity is trivial in this context, because it doesn’t address the point. What, was Peter Lawler (for example) not a serious Catholic pro-life conservative?
Delete"Ed, let's change the subject back to the one you weren't addressing, so that I can criticize you for something you didn't actually say"
DeleteCome on, you’re better than this pettiness. Fact is, the article does not address a salient point: in the pro-life, who exactly opposes a federal abortion ban for reasons contrary to subsidiarity?
DeleteHow it's "petty" to ask people to stick to the subject one was actually writing about rather than to change the subject, I have no idea.
DeleteAs to who takes the view I've been criticizing, it's one I've seen being discussed on Twitter recently (e.g. by Tim Gordon)
While an anti-abortion amendment would be best (but that may take a long time to get ratified), is it the case that the feds have no jurisdiction over the murder of infants? There are certain types of murder cases that the feds have jurisdiction over, such as murdering a federal judge or someone connected to other federal offices, but if the website I got this from is correct, another type of murder which the feds can prosecute is:
DeleteA murder related to rape, child molestation, or the sexual exploitation of children. Rape, sexual abuse, and sexual exploitation of minor children are federal crimes. Therefore, any murder committed during the occurrence of these crimes is a federal crime.
Now, abortion is the most extreme form of sexual exploitation and child molestation, so if abortion could be defined everywhere as murder, then perhaps it would then be automatically a federal crime. The problem is that abortion is not universally recognized as murder. I wish I knew the name of the benighted individual who first called an embryo a lump of cells and gave cover to the notion that abortion is not murder to modern ears. His or her comment is a grave evil.
The Chicken
@ OP Anonymous, I have never understood how anyone can reasonably hold your position. Abortion is very obviously a violation of the Fourteenth Amendment.
Delete“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Given the dubious ways in which SCOTUS has claimed this amendment implies all sorts of protections and “rights” which it does not, how can we be shy about asserting that allowing the murder of the unborn is denying persons equal protection of the law?
Well said, Dr. Feser. I hope U.S. Catholics and Christians generally can start to set the agenda on the issue, instead of being pulled from pillar to post by political frauds.
DeleteVery good post. One can see the merity and necessity of the federalist argument when dealing with prudential questions that can be decided based mostly on what is more convenient at the territory.
ReplyDeleteBut with a fundamental question like a fundamental right? Yea, that is diferent.
Great Post Dr Feser !
ReplyDeleteI am surprised that such a point had to be made.All your points are very substantive and I don't see how any reasonable Catholic can disagree with it.
For all those pointing out, "current political realities", you are literally missing the point which is about principle.
What would he the right way to go about it though Prof, as a matter of prudence and making correct statements ? Given that all the political forces is in the opposite direction against a federal ban.
Suppose a devout catholic campaign manager came to you and said, " Prof, I want to signal that we won't push for a federal ban but at the same time I don't want to undermine the principle ". What would your response be ?
Would pointing out that the question of such a ban is moot given the political realities be alright as a statement ?
I guess if you offer some clarity on what statements would have been permissible to navigate the political climate, people would benefit :)
"Let the states decide." <- Always the loser's suggestion.
ReplyDeleteI disagree with those that say abortion would not be an issue subject to federal jurisdiction. The standard for interstate commerce is very liberal. How would, say, a clinic that has offices in several states (think of some of those national dental chains) not be considered interstate commerce?
ReplyDeleteUnderstand that I’m not saying that I like it, just that I dont think a federal abortion law-pro or con-would fall foul of the commerce clause.
Great article, Dr. Feser. Many Catholics are quick to cry "subsidiarity" when they are attempting to justify their small-government, libertarian-adjacent views on politics. This is an important reminder that subsidiarity demands no such thing. As we move into the future, a pro-life movement that is fractured over a false conception of subsidiarity is sure to be a liability for the cause of ending abortion nationwide.
ReplyDeleteRelatedly, those crying that such a ban would be unconstitutional should really read Adrian Vermeule's Common Good Constitutionalism. I would also encourage them to consider the constitutional politics around Abraham Lincoln's Emancipation Proclamation, and the resulting 13th Amendment. If that was also unconstitutional, then we have been an unconstitutional republic for quite some time now.
"I would also encourage them to consider the constitutional politics around Abraham Lincoln's Emancipation Proclamation, and the resulting 13th Amendment. If that was also unconstitutional, then we have been an unconstitutional republic for quite some time now."
DeleteThe Emancipation Proclamation was issued as a war measure, under the President's authority as commander-in-chief of the armed forces, and it assumed that the federal government had no general authority to outlaw slavery within the individual states. That's why it didn't apply in West Virginia, in the Northern Virginia or Tidewater counties that were under Union army control, in the Louisiana parishes under Union army control, or at all in the loyal slave states of Missouri, Kentucky, Maryland, or Delaware. Further, the fact that the 13th Amendment was adopted is evidence that it was generally understood that, in the absence of such an amendment, Congress had no authority to regulate, much less abolish, slavery.
My point is that Lincoln made fairly broad use of executive power, effectively freeing most all of those enslaved. And the subsequent constitutional amendment was more like a token gesture, or a bow around his actions. The real battle was already won.
DeleteUm, no. The Emancipation Proclamation didn't, practically speaking, free a single slave; it applied only in the states that had seceded, where of course the authorities had no intention of obeying him. Its effect was that any slave taken by Union arms would be immediately freed; but that was done under the rules for spoils of war, and could not have applied outside of that context. A general prohibition of slavery needed an amendment to the Constitution. It was by no means a token.
DeleteJust because the rebel states had no intention of following the order doesn't mean it wasn't binding on them. After they were defeated, the slaves therein were physically freed. The amendment enshrined this, post facto. But fair enough, the amendment provided legal certainty around the abolition of slavery for all unaffected by the proclamation and into the future.
DeletePope Pius' reasoning assumes that central governments (in modern times) wield plenary powers over their subjects - that is, they can regulate and prohibit any action whatsoever - and construes subsidiarity as advice to such governments, that they should not exercise their powers unless the problems they are addressing are problems across their whole jurisdiction.
ReplyDeleteThe problem with this argument in the USA context is that the federal government does not have plenary powers; it's the state governments that have those. The federal government's powers are limited and enumerated, and while it is supreme within its limits, it cannot (in theory) act beyond them. And nearly all the things the Church says are malum in se are outside those limited powers. Abortion isn't special in that respect.
So if you concede that the federal government can't prohibit murder, rape and theft, you can't say that it can prohibit abortion. As with other malum in se acts, the parties that have the plenary police power are the ones who should prohibit abortion - which in the USA is the individual states.
Dr. Peter Simpson, in his essay, "The Wrongs of Abortion", outlines arguments both against abortion and also against laws against it. Cf. https://www.aristotelophile.com/current.htm
ReplyDeleteIn his book on Integralism, "Political Illiberalism: A Defense of Freedom," he also happens to tie this very argument directly to previous points he made regarding subsidiarity earlier in the book, though I wish he had fleshed it out more.
Would be interesting for the two of you to have a serious exchange on the topic. He's no rube.
Pius XI: The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly.
ReplyDeleteFeser: To forestall confusion, note that “State” as Pius is using it refers to any more central government, and thus, in the American context, would apply first and foremost to the federal government rather merely to “state” governments,
This is simplistic and inaccurate. The Founders explicitly denied that the federal entity would be a "national government" over provinces in any simple sense. Pius's comment should be taken to understand by "state" that civil authority that holds plenary power. In the US, that plenary power is neither held by the federal nor by the states simply speaking, it is most definitely shared: the 10th amendment makes explicit that those plenary powers not allocated to the federal government were reserved by the states.
Thus the powers involved in outlawing murder and theft belongs to the states, along with the powers to enforce those laws even by incarceration and death, which are plenary sorts of power.
But by no means does Pius leave it at that. He also says that there are some things that central governments “alone” can do. Naturally, this includes things that are the proper function of any central government under normal conditions (such as national defense).
But it also includes things that more local institutions might in theory be able to handle, but in practice cannot, because of “changed conditions” or the requirements of some particular “occasion.”
That might apply easily to what is a national government simply speaking, but does not automatically apply to a federal government holding only enumerated powers.
Hence, suppose a number of states in the U.S. outlawed abortion, but others did not. And suppose that there was no politically realistic prospect of outlawing it at the state level in those states that failed to do so. But suppose also that it was nevertheless politically feasible to impose a federal ban on abortion.
ReplyDeleteAnd what if, by arrogating to itself the power to outlaw abortion, the federal authority were to further damage the states, and the delicate balance so far still existing in the states, to the eventual complete destruction of the US as a federal / state union altogether. The states that can outlaw abortion may, in time, come to be the impetus by which respect for life becomes a norm even in states that right now reject such an abortion ban.
In particular, says Pius, because of the “individualism” of modern times, those intermediate institutions that traditionally came between individuals and central governments have become so weakened that they are now unable to perform some of the functions they were once able to.
The institutions Pius is talking about are things like parishes, local and regional charities, businesses, and unions. US States are still plenty powerful, and with Dobbs have had RETURNED to them their rightful power to outlaw abortion (which under the Constitution they really had all along). You premised that some states WOULD outlaw abortion, which establishes that those entities have the power they need to accomplish the good task. That other states similarly situated FAIL to use their power properly is, precisely, NOT the place in which higher authorities ought to step in and overrule the states wrongful (non-)use of that power. The higher power overruling the lower because it is not using a power that it has is not the kind of thing Pius is talking about.
Defeating subsidiarity as a principle of US structure would cause more evils than it would solve. You are implying that ignoring the Constitutional allocation of powers between the states and federal under the US system is OK because some of the states are electing not to use a power they have very well. That's not how to fix a lower-down problem.
It would be neither a defeat for subsidiarity, nor caving in to the pro-abortion, to instead seek to get a federal pro-life amendment to the Constitution. This is the proper ordering in the US. That it would a slow and painful slog taking decades DOES NOT imply that the "faster and easier" (if it could be achieved, which is far from likely) of a federal law banning abortion is justified as "necessary" in spite of it being unconstitutional. Many evils must be tolerated - and HAVE BEEN tolerated - for far longer than 50 years before a people was able to overturn it by lawful and moral means. Impatience does not make necessity.
The West as it existed in 1950 is gone forever, as it relates to abortion, the family, social mores, etc. Nothing will get it back.
ReplyDeleteHaving agreed with Dr Feser on everything and I still agree with him on everything concerning this election.
ReplyDeleteI would still like to spare a word of empathy for those in these elections who genuinely have issues on the line, especially those in red states fighting to protect their children in schools from the trans ideology , people have fought on the frontline and toiled for years and they are finally gaining ground on this issue. For these people, a Trump victory would mean a chance to keep these victories they have won against the evil of trans ideology rather then having to deal with the witch that is Kamala Harris if she becomes in charge of the bully pulpit. That is why as Prof said, a narrow Trump victory would indeed be the better outcome.
I get why people get frustrated at Prof's logical style and I'll admit that sometimes his tone does sound as if every state is as far gone and utterly morally depraved as California and doesn't acknowledge the struggle of people in other states on important causes such as eradicating trans ideology. People have bravely risked their jobs etc to speak put on school boards. It is important that we win that battle.
But it is also important that we protect the principle of pro life causes and since that principle has been distorted these days, namely the sanctity of life, and since politicians are neglecting the duty to do whatever we can to protect life from the moment of conception, it is important to speak out on these issues as well, this is the point that Dr Feser is highlighting that many people are missing.
What parents didn't get about Trump's school choice schtick is that it is as illusory as Dobbs. The finger cross is that trump knowingly includes ssm couples as parents and could use school choice as a way to funnel money to them, either for their procured children, or even for children who are confiscated from dissident natural parents and given to them to foster.
DeleteThen Adam and Steve can send their procured children to Harvey milk charter school.
School choice puts hidden pied piper strings on parents. Those who can, homeschool. Without strings. And let the money be returned to taxpayer. Government schools should be means tested anyway and viewed more like soup kitchens.
Thank you for this! It is helpful to see the analogue between the individual who can do something for himself being deprived of the right/responsibility to care for such matters and the more local associations being deprived by a broader government. Makes good sense.
ReplyDeleteConversely, it makes sense that the federal government also has a duty to guard the common good. In light of this, the federal government has a duty to maintain or enforce natural law. This would include a federal abortion ban among other issues.
I don't think the federal government has a duty to guard the common good in general. That duty is the rationale for the plenary police power - which the federal government explicitly doesn't have. It does have the duty to enforce the natural law to the extent that it has the authority to do so, but that's true of all human institutions.
Delete"I don't think the federal government has a duty to guard the common good in general. That duty is the rationale for the plenary police power--which the federal government explicitly doesn't have."
DeleteLet's say plenary police power could be used to prevent violation of the natural law (e.g. a police for large enough to prevent all cases of murder), by what *principle* do you think that it should not do this? And for clarification, by plenary do you mean that it is plenary in the moral issues it polices or simply that the police force is large enough to enforce the natural law. It seems you have in mind something like Communist Russia as a police state. If so, Communist Russia was not enforcing the natural law. They were using police force to undermine it.
And when you say the federal government doesn't have plenary police power, do you mean that the US constitution limits the police power of the federal government? If so, that is not the question I am addressing. The question I am addressing is whether the federal government could and should, as a matter of principle, use such power to enforce natural law. It is of course possible for a countries laws to conflict natural law just as it is possible for a country's constitution to contradict natural law. Let's say a country's constitution stated plainly: "the federal government cannot use force to prevent murder. Instead, whether or not murder is permitted must be addressed by the states." Such a constitution would be wrong and in contradiction with the natural law. Such unjust laws and precepts would in the words of Aquinas be "no laws at all." In other words, they would bind no one.
Either you are not an American, or your civics education was sadly neglected. The 10th Amendment does indeed imply that forbidding murder is not something the federal government can do.
DeleteLet's suppose that you knew, beyond all doubt, that a certain man was a murderer. Are you, as a private person, morally obliged to execute him? No; not because it's wrong to execute murderers, but because you don't have the authority to do it. The point is that, on most subjects, the federal government in the USA has no more authority than a private person does. The question you ask, "Should it use its authority to enforce the natural law?", presupposes that it has the necessary authority, when it doesn't.
I don't think you actually mean that a unitary sovereign State with unlimited authority over everything is required by the natural law, even if you appear to be saying so. But if you do, I remind you that medieval Christendom had no States, and no theologian in that period thought that problematical. The society in which Thomas Aquinas lived had both the Catholic Church and secular princes as legislators, with neither one being unambiguously superior to the other. America's parallel authorities don't divide their responsibilities the way medieval Europe did, but having parallel authorities isn't in itself an issue.
I just saw this comment or I would have responded sooner. You seem to think that the federal government is no more and no less than what the constitution states it to be. That is a premise that we don't share (and one you haven't argued for but merely presumed) and this has resulted in confusion on your part. Any governing body precisely as governing body is required to govern in accord with natural law. The federal government makes laws and those laws should be consistent with and reflect natural law (e.g. Don't murder don't steal etc). I am not sure what has caused you to imagine otherwise. Eisogesis of the 10th amendment from someone who practices armchair constitutional law doesn't count as support for an argument and such eisogesis doesn't even begin to support the premise that the US federal government has no more and no less authority than your reading of the constitution allows for. Such a premise is merely to beg the question (i.e. your presupposing that natural law doesn't exist by presupposing that nothing can bind our federal government except the constitution).
DeleteI fear that you are incapable of understanding what I actually said, since your last parenthetical foists on me an idea I expressly denied in my first reply to you.
DeleteI shall, therefore, leave you with a paradox: the federal government is not a "governing body".
And I shall leave you with the principle of non-contradiction. A thing cannot both be and not be at the same time and in the same respect. Why don't you wrestle with that one. You might also try to deny it which, as Aristotle pointed out, would require that you also presume it at the same time. That would be some marvelous absurdity on display now wouldn't it.
DeleteGetting our society on the right side of this issue is going to require reshaping public education and could, apart from Divine intervention, take a generation. People of goodwill need to continue the same work in the legal and political sphere, but there needs to be a reintroduction of logic into public schools wherein the public actually learns to think and identify fallacies again. That will help to mitigate the sophist's attainment of public office and it will help to clarify more fundamental questions like: what is murder? If there were a moment of moral and logical reflection in public schools, it would contribute to resolve this issue in a significant way. Seeking the truth requires goodwill, but it is no help to those who have such goodwill that they have little ability to make arguments in the public sphere due to the inability to think, write, and argue with clarity. A course in logic would do wonders to help resolve this issue.
ReplyDeleteEd write:
ReplyDelete"But some take the view that, even if abortion amounts to murder, it would be wrong to impose a federal ban even if it were politically possible to do so. They make their case on federalist grounds, arguing that a national abortion ban would usurp power that rightly belongs to the states. Some argue on natural law grounds, specifically, suggesting that the principle of subsidiarity would rule out a federal ban. If this were true, then it would follow that even a pro-life Catholic should oppose a federal abortion ban. What should we think of this argument?"
It seems to me that the position is that the argument based on subsdiarity is wrong, but the argument based on federalism is almost certainly correct. (I say this as a strong pro-lifer who went to law school in part because of this issue.) I would love a world where there was a legitimate federal abortion ban, but I think it would be an illegitimate exercise of federal power. I don't think that even a grave situation such as this warrants exercising power that one does not have. There is no federal statute against murder, notwithstanding how bad murder is, and nor could there be.
That said, as Ed says above, there are many things that the federal government could do to seriously discourage abortion, and to make it much easier on states that do ban them. They should take all such available steps. There is room for great creativity here, I believe.
This sort of thinking is, frankly, ridiculous. It's a result of well funded liberal institutions like the Heritage Foundation and the Federalist Society.
DeleteWe already have federal law around many crimes, including kidnapping, child pornography, robbery, and so on. Adding abortion to the list is not unthinkable. It could come in under the Commerce Clause or the fact that life is a fundamental right guaranteed by the Constitution.
In this vein, the supreme court could determine that it is unconstitutional for states to allow abortion. Further, the president could exercise emergency power over abortion.
I'm not saying any of these are politically viable or prudent today, but to act like our hands are simply tied is a weird, libertarian view of federalism that ignores legal/constitutional precedent.
The fact that, under Leftist pressure, the Commerce Clause has been construed as something close to a grant of plenary powers doesn't mean it should be so construed. Quite a lot of federal laws are, in fact, not within the authority of Congress to enact.
DeleteTo suggest that Congress, the President and the Supreme Court should act as if the federal government has plenary powers, is subversive of the US Constitution as originally ratified and amended. That they have so acted for over a century is hardly an argument in favor of the suggestion - considering the practical results.
These laws Are within congress's authority to act, as confirmed by the Supreme Court. I'm not saying that we aren't a Constitutional republic with power divided between states and the federal government. But I am saying that, per the supreme court, the federal government has power to tax and spend for the common good, and has police powers virtually on par with those of the state.
DeleteIf you think this supreme court precedent is unconstitutional, then the reality is that we have been an unconstitutional republic for quite some time. So what is it that you are holding on to? I'm not sure what practical results you fear. I also highly recommend Adrian Vermeule's "Common Good Constitutionalism" if you want a more in-depth analysis.
The fourteenth amendment (which you're implicitly referring to) does not grant the right to criminalize actions by individuals, with vanishingly few exceptions. And nor has the Court ever held that it does. The Commerce clause has been held *not* to grant police powers on par with a state. Most of the crimes you mention have some explicit interstate component to their definition (on the federal level). No, there is no general federal criminal law against burglary, full stop.
DeleteShould the Congress pass a federal law criminalizing abortion, it would be (1) inconsistent with the US Constitution; (2) inconsistent with current Supreme Court precedent; (3) almost certainly overturned by the Supreme Court; and (4) correctly so overturned.
But something like criminalizing going across state lines to obtain an abortion might be another matter.
If you think this supreme court precedent is unconstitutional, then the reality is that we have been an unconstitutional republic for quite some time.
DeleteQuite right.
By "practical results" I refer to the present state of our politics and government - the network of technocratic agencies staffed by people who openly hate Christ, and the people they govern. Were there space enough I would argue that the drive to make the federal government plenipotent is the chief reason for that state of affairs, and that reversing that drive is necessary for correcting it.
As for Vermeule, I'm an originalist, so committed to reject his theory. As I understand it, his view is that only the natural law and its logical consequences count as real law, and in construing the civil "law" officials must consider only the natural law, without any regard to the intentions of the civil "law"'s authors.
To which I reply that this is a radical misunderstanding of the duties of a State official, particularly a judge. It is absolutely critical that an official of the State, in his official capacity, act according to the legislator's judgement, not his own. The legislator is obliged, when framing a civil law, to make it conform to the natural law and serve the common good; the official, the judge, is obliged to follow the law as the legislator wrote it. If the legislator commands an immoral act, officials may resign rather than obey, but they may not disobey and retain their office. If this rule isn't followed nobody can predict what officials will do by knowing what laws have been promulgated, which is manifestly bad.
In short, Vermeule wrongly thinks that the judge, as a judge, is sovereign and should act as such. He counsels judges to exceed their real authority in the name of a Higher Purpose. No good can come of such a course - except, indeed, when the sovereign has ceased to be legitimate; but in that case the judge's authority is gone too, and you have civil war cloaked by pomp and ritual.
@SMack
DeleteI'm not merely referring to the 14th Amendment, but to the entirety of the Constitution (including the necessary and proper clause), which enables the federal government to enact criminal law. Nor am I saying that the Commerce Clause grants federal police powers; these were acquired beginning with McCulloch v. Maryland and expanded through successive Supreme Court decisions. In recent history, the federal police power is rarely limited by the Supreme Court.
If sexual crimes against minors can be federal law, so can abortion (see 18 U.S.C). Just slap on something about interstate payment, travel, or effect, and you're good.
@Michael Brazier
The size of a government is not some inherently good or bad thing; it's contextual. The Holy Roman Empire under Constantine was powerful, but not evil. I don't disagree that our rulers today don't protect the common good. But I don't think the solution is to try to neuter the federal government. Instead we need better leaders.
Vermeule is critical of originalism, though he gives it its due, so you are bound to be at odds with him. But you badly misunderstand him if you think he is making judges out to be sovereigns who ignore all enacted law; your entire argument is a strawman against something he never said.
The tl;dr is that all law requires determination, which is the job of judges, and this determination should be made in light of the natural law where the lawmaker's intent is unclear or seemingly at odds with the background natural law. Again, I strongly encourage a reading of Common Good Constitutionalism if you want to better understand his position.
Bravo, Brazier.
Deletebenine, do rid yourself of the assumption that a federal statute is constitutional just because Congress passed it and the Supreme Court hasn't struck it down. Federal officials are obliged to act as if that's so, but you aren't a federal official.
Delete"where the lawmaker's intent is unclear or seemingly at odds with the background natural law" - ha. "Unclear" I might grant you, but "seemingly at odds" is exactly what I was talking about.
Frankly, Vermeule sounds alarmingly similar to the early Progressive movement that gave rise to our current afflictions. Woodrow Wilson and his ilk didn't start out hating the common people or their religion, you know. They honestly believed that their technocratic, centralizing program would serve the common good; and they reasoned that, since the Constitution's purpose was to serve the common good, their program was necessarily compatible with its purpose, and its actual text should be construed in that light. That's what the phrase "living Constitution" meant. If Wilson had heard "common good constitutionalism" he'd have thought it meant his own view at first.
I'm just saying these laws we are discussing are within Congress's power to enact, as confirmed by Supreme Court precedent, not that any law whatsoever passed by congress is Constitutional until shown otherwise.
DeleteBy "seemingly at odds", all I mean is that the judge's job is to determine what the lawmaker intended, and it's not unreasonable to presume that a law is not meant to violate the natural law. So when such a reading is possible, it should be taken.
Vermuele will be criticized by originalists as being too progressive, and by progressives as being too originalist. He has a whole chapter taking down the notion of "living, breathing constitutionalism" in CGC.
Your point about Woodrow Wilson can apply to any leadership class. They can start with good intent, and go astray. This happens repeatedly. That doesn't mean the answer is not to have leaders. And there's no intrinsic reason that state or local leaders are not susceptible to the same mismanagement, even while thinking their actions are for the common good.
Our nation has federal and state powers, our Constitution provides for this. The federalists and anti-federalists had bitter fights over how the power would be divided. The bill of rights was the concession to the anti-federalists. But there's tension even within our own Constitution, and the mind and intent of the framers, as to the power divide. It seems our constitution provides for the possibility of both.
@benine,
DeleteI can't put it better than Michael. Your argument about the meaning of the Constitution is simply wrong.
Yes, sex crimes against minors *involving travel across state lines* is a federal crime, and so too could abortions involving the same. But all abortions? No. Not legitimately, and it is immoral not to care about legitimacy.
@SMack,
DeleteI guess we will have to agree to disagree then. Just note that originalism is not the only valid constitutional interpretive method, and it is increasingly being called into doubt, especially as cases like Bostock, and statements like "we are all originalists now," and academic takedowns like those proffered by Vermeule are on the rise.
Also note that if my understanding of the Constitution is wrong, then you are basically saying the last century or so of constitutional law is wrong.
Finally, note that I did say the legislative ban would likely need language to the effect of it having an interstate dimension. But this is a very low threshold. Most any action in the modern, interconnected, developed world is not localized in effect. The civil rights act passes this threshold. I'm not sure what's illegitimate about the same approach to abortion.
I agree with almost everything Michael B wrote above, but not the last part of this:
DeleteThe legislator is obliged, when framing a civil law, to make it conform to the natural law and serve the common good; the official, the judge, is obliged to follow the law as the legislator wrote it. If the legislator commands an immoral act, officials may resign rather than obey, but they may not disobey and retain their office.
St. Thomas makes clear that a law that enjoins you to an act that violates the natural law (or divine law) is no law, it lack the essence of law and is not binding. There is no duty on an official to resign when not following a not-law.
He may be morally obliged to take the consequences, under the law, for refusing. That may comes under several options: if his refusal is not noticed, he is not necessarily obliged to point it out. If he is found out and prosecuted, he may use every legal trick to escape punishment. If he is found guilty and sentenced to some punishment, he may be morally obliged to submit. (The last "may" here is dependent on cases: in the extreme where not only is non-compliance warranted, but outright revolt to overthrow an evil government is needed, your revolt constitutes a refusal to accept the "legal" consequences.
Just note that originalism is not the only valid constitutional interpretive method, and it is increasingly being called into doubt, especially as cases like Bostock, and statements like "we are all originalists now,"
Among the universities, (and including the vast majority of law schools), and their professors, liberalism is virtually unchallenged, and in that milieu, true originalism has not had much weight. Originalists are, in effect, counter-revolutionaries against their liberal training. Claims that "we are all originalists", in liberal mouths, usually is either a smokescreen subterfuge or they simply don't understand themselves nor originalism. The reason a few conservative judges are originalists is that they have come to realize, contra the positivism of the schools, that law as such requires it. Some relative conservatives, on the other hand, like to construe the law according to older norms primarily because they prefer those norms, but they are not consistent and will do this haphazardly. And finally, some judges, rightly recognizing that activist and positivist judges have improperly skewed the meaning of law in the past, use some of the same activist methods to reverse some of the effects created by "judicial law" not justified by actual law.
and academic takedowns like those proffered by Vermeule are on the rise.
DeleteTakedowns, piffle. Originalism, at its root, is simply an expression of the rule of law, and rejection of it is rejection of law itself. All human law must be expressed in words, words understood by the legislators and understood by the ruled when the law was issued. That meaning IS the law, and that meaning remains the law until a change is willed in the legislator by stating, i.e. ordaining concretely, new law, because only by doing so can he clearly issue a new intent to the people governed. You can't issue law by unexpressed intent, and you can't rule primarily by implication, innuendo, allusion or vagueness. Only the original meaning is a definitive ground, all later meanders of meaning (say, because words morph over time) are going to be vague, imprecise, fuzzy, and untestable, because such drift of language is slow, indeterminate, and uneven throughout society. But it is obligatory for the law to be knowable and definite, because a man should know what he is obliged to do by the legislator: this is why St. Thomas includes "promulgated" in the definition. If you want the law to "change with the times and conditions", you need to state new law with those new changes and new intentions, and then the law is definite at that time with the new statement of it and its newly intended meaning. Anything else sinks every man into a subjective whorl of maybes without end, and allows judges to impose THEIR will for the legislator's, in the (fictitious) name of "interpreting" the law.
some of the court-approved federal uses of power are clearly wrong and should be overturned: e.g. the wikard v. filburn decision using interstate commerce clause to stop growing a crop that wasn't sold and so wasn't commerce. The fact that an activist court said the clause includes such stuff doesn't mean it really does. In practice, it would take a new constitutional amendment to correct the courts, and that's not going to happen.
Delete@Tony - I highly recommend that you look into the history of originalism. It was a push made in the 1980s. Curious that the only valid form of constitutional interpretation (and indeed all law) was discovered so recently.
DeleteThe more obvious answer is that normal, juridical interpretations were always on the table, and they always make use of multiple factors, including the language of the statute, the meaning at the time it was enacted, the express or implied intent of the drafter, the drafter's intent for the law to cover cases beyond the time of enactment or outside the situations conceived of at the time of drafting, the presumed intent of the drafter to create a law that did not violate the natural law, and so forth.
All of this is simply classical jurisprudence, in line with political philosophers of antiquity (like Aquinas, among others). Originalism is a modern development and takes the same presumptions that liberal constitutional interpretive approaches do, namely that all law is merely positive law and therefore recourse to background principles of law (including the natural law) are off limits.
It's a curious take that progressive liberal (i.e., living, breathing) constitutionalism is "virtually unchallenged" at law schools, considering the size and scale of originalist organizations like fedsoc and the heritage foundation, and the number of judges and appointees such organizations have produced.
Originalists aren't all bad, but they make assumptions of the constitutional order that will ultimately become liabilities for conservatives (e.g., making everything a state issue, and ending the analysis there, or reading sexual orientation into the civil rights act).
I'm amazed that it took you this long to say plainly what your objection to originalism is (all you've done up till now is say you agree with Adrian Vermeule, and that those of us who don't haven't understood him.)
DeleteOriginalism does not assume that positive law is the only sort of law that exists. To be sure, it doesn't reject that assumption. But there's no difficulty with holding both that the natural law is prior to all other laws and the source of their legitimacy, and that what a positive law requires is the original meaning of its drafter. In fact I believe both of those are integral parts of classical jurisprudence. Originalism is simply restating that portion of classical jurisprudence which the Progressive movement chose to reject first.
The Federalist Society, by the way, has nothing to do with law schools - its strength lies entirely in its ability to persuade practicing lawyers and judges. The legal scholars attached to universities are all progressives of one sort or another.
@Micheal Brazier - That doesn't seem fair at all. I've been trying to forward the discussion, and am talking to three different people.
DeleteClassical jurisprudence does not divorce positive law from the natural law. It's a development of modernism that has done such a thing. You can find plenty of English common law cases and American cases that reach into background questions of natural law when judges are trying to make a determination of what the law is. And you can see plenty of modern examples where originalists fail to do such a thing. Under an originalist approach, enacted law is Purely a question of the drafter's intent, but such was not the case in antiquity, which understood that drafters are never in a vacuum, but steeped in a legal framework that incorporates, explicitly or implicitly, the natural law.
Naturally, one can be an originalist and Believe in the natural law. But one cannot be an originalist and incorporate the natural law into their legal determination, which is a huge weakness. And to forestall a possible argument to the effect that it is a strength and not a weakness that natural law is put aside: when a determination of law must be made, the judge must be guided by Something to make this determination, even when the drafter's intent is fairly clear.
For instance, when the law uses value-laden language, like "The Congress shall have Power To... provide for the common Defence and general Welfare of the United States," a judge must determine what constitutes "general welfare." He has to bring something outside of the drafter's intent, which is impossible to know, may not have been settled, or was meant to be determined by a judge, in order to make a coherent determination.
Liberals rightly reject originalism as being too narrow a focus and too impossible a task and too static an understanding of law, and originalists rightly reject progressive constitutionalism as being unbounded by the principles of law or jurisprudence. They split the baby.
To say that fedsoc has nothing to do with law schools is a bit... much. "The Student Division includes more than 10,000 law students at all of the 204 ABA-accredited law schools as well as 10 additional chapters based at non-accredited law schools, satellite campuses for ABA-accredited schools, and a few undergraduate institutions." I'm not saying they aren't outnumbered by progressive liberals, fwiw. I'm also pointing out that they themselves Are liberals ("We are committed to the principles that the state exists to preserve freedom").
But there's no difficulty with holding both that the natural law is prior to all other laws and the source of their legitimacy, and that what a positive law requires is the original meaning of its drafter.
DeleteRight. Prior to positivism, and legal positivism, the notion of a base source of of human law in natural law (and divine source of that) was a given, wasn't in much dispute. Of course modern theory explaining that no, "living" law can't be law without being moored to a stable base of meaning came about more recently, in part as a response to positivism. That doesn't mean that people before then didn't believe that one needed to understand the law as given by the legislator.
It is, of course, a shame that some modern originalists try to marry up with legal positivism.
benine, your understanding of originalism is incorrect. When an originalist does not consider background questions of natural law, it's because the meaning of the relevant statutes is already clear from their text, or from the historical evidence of what their authors and ratifiers understood them to mean. You don't need to consult the theory of general relativity to discover that things fall when you drop them!
DeleteAnd there's lots of cases where common law judges don't appeal explicitly to the natural law to reach a decision, for similar reasons - the precedents are already clear enough that no deeper inquiry is needed. If a common law judge doesn't turn into a positivist when he fails to mention the Decalogue, you can't conclude that an originalist denies the natural law just because he didn't bring it up.
@Michael Brazier
DeleteI don't disagree that every case will not call for an invocation of all background principles. My point was simply that classical jurisprudence would do so when necessary, contemporary originalism doesn't. To the extent it does, then whatever we Call that interpretive approach, we are fundamentally discussing the same thing and I don't understand our disagreement.
But note that most modern originalists explicitly reject such a marriage between consulting background morality and making a judicial determination, instead opting for a "fixed meaning at the time of enactment," which is not the classical approach to law and has all the problems aforementioned. They would never allow the judge to wade into the natural law, instead requiring him to get into the head of the drafter, always and forever, sterilizing law and turning legal analysis into a near impossibility.
First, you're using the "No True Scotsman" fallacy. You define "originalism" as an approach that rules out the natural law. But actual originalists don't do so, which makes your definition a cheat.
DeleteSecond, what is so all-fired impossible about "getting into the head of the drafter"? Do you subscribe to a radical skepticism that dismisses all documentary evidence as unreliable, including the text of the law itself? Because that much skepticism strikes down far more than originalism - for instance, it would justify the Flat Earth Society.
If you grant that documents generally convey the intended meaning of their authors, which is a necessary premise for any form of scholarship, I see no grounds for claiming that legal documents specifically don't do so.
But note that most modern originalists explicitly reject such a marriage between consulting background morality and making a judicial determination, instead opting for a "fixed meaning at the time of enactment,"
DeleteClearly the "fixed meaning at time of enactment" is the core of the very term of "original" and therefore of "originalism". That there be a FIXED background to a legislator's enactment in natural law is part of the fixed meaning of his enactment, if his intent at the time was to rule in accordance with natural law. Those modern "originalists" who deny such as being part of the fixed meaning would appear to be merely one species of positivists. I.E. there is little point in calling them originalists.
I'm not sure who is more fallacious, me describing what I mean by "originalist," or you saying that those I describe are not true originalists. I'm basing my views of modern/mainstream contemporary originalism off of some of its biggest pushers.
DeleteFrom Fedsoc: "[I]nterpretive theories that empower judges to bypass text and context, and make decisions based on background or external considerations—be they natural law or evolving social views—license judges to import their own conceptions of justice and morality."
From Heritage: "Originalism claims that the positive law of our mature legal system—that is, the Constitution’s original meaning and originalist precedent—has the capacity to answer most constitutional questions without resort to natural law."
Again, the originalists I'm addressing are those that do not allow judges to make considerations of the natural law in their regular course of determination (e.g., in the course of determining the ordinary meaning of the law's text, presuming that the lawmaker was acting rationally/reasonably). To the extent that an originalist does allow such a thing, then I see no conflict between their approach and that of Vermeuele.
So if we can agree that the main enemy is positivist (or quasi-positivist) originalists, I think we are more or less on the same page.
To clarify: No I'm not a radical skeptic about law or reality. Documentary evidence is helpful in ascertaining the meaning of a law. But meaning requires more, including a robust legal framework in which to operate. So background principles must be imported in the consideration, in one way or another. If we are looking at the whole picture, including text, context, principles of just jurisprudence, presumptions of rationality, and so forth, then the task is not impossible. If all we are allowed to consider is the text and context in a positivistic sense, the task is far less certain.
But again, if we are agreeing that the natural law can be incorporated in the ordinary course of judicial determination, as both part of a laws fixed meaning and in the presumption of a rational drafter, then I see no conflict between the interpretive methods we are proposing.
Crazy thought: maybe if your constitutional theory conflicts with your moral obligations, it's not your moral obligations you should think about compromising on.
ReplyDeleteCrazier though: maybe if your moral theory conflicts with your constitutional obligations it's not to constitutional obligations you should think about compromising on.
DeleteWhere's the conflict? Morality says what the laws ought to be; constitutional theory says who has the authority to make and enforce the laws. The questions are logically independent.
DeleteImagine someone saying that the Federal Highway Administration must concern itself with the sanitation of chicken farms, because healthy chickens are a vital concern of the public - and who cannot conceive of any argument against this claim but an indifference to chickens. I think the logical error is obvious there; regardless of how serious the problem is, the demand to fix it is being made to the wrong person, and thus ought to be refused.
By the same logic, we should leave the question of slavery to the states, which is as absurd today as it was in 1861.
ReplyDeleteAnd yet that's exactly what Abe Lincoln wanted to do, as can be seen by reading his First Inaugural Address.
DeleteIf the Constitution had banned slavery before the Civil War, why was the 13th Amendment ratified?
DeleteLegally, the Confederate states had the authority to allow slavery within their borders. Morally they were in gross dereliction of their duty to the natural law because they did so - but no one could compel them to do what they ought to have done. Only their secession relieved the Union of its obligation to respect their autonomy.
I've heard some liberals argue that the family is not a natural institution but rather a convention that, depending on who you ask, was instituted by christianity, or at most, by agricultural societies. But that for most of human history, the traditional family as we know it today, wasn't the prevailing pattern of human behavior. They usually argue that for most of history humans were promiscuous beings that raised children communally, for so to speak, a lot of the time without knowing who the father was. So, for them, humans are naturally promiscuous beings that don't organize themselves into families unless some external, cultural factor makes them do so. How do the demonstrate that the family is a natural institution? Is this a matter of empirically verifying human behavior throughout history, or can we make a a priori case for it?
ReplyDeleteI’d like to see what actual evidence they could point to for that assertion, given they’re talking about a time that predates written records.
DeleteBut also, they are equivocating with their definition of “natural” in the way that often happens in these discussions. When we refer to “nature” in natural law kinds of discussions, we are not talking about “the state that existed before complex human society” or something like that. “Human nature” is the objective standard by which we judge human flourishing, and that can be seen through reason.
Really? No one knows who the father is? Have you ever directed your eyeballs to a child and his father? They kinda look alike! Not to mention the pride men take in their sons, raising them as their own. How does a son learn to be a man by such a group? Do children not long for their parents? Do people even in today’s hook up culture not “catch feelings” and bond with a particular person in spite of themselves? It’s not that I simply disagree with this theory, it’s that I can’t see one single fact in its favour beyond people recognizing others as attractive, and that’s not really that much of an argument at all. Only a depraved mind that can’t see beyond its own sexual titillation could ever fathom such a lifestyle. Or perhaps, more generously, someone from a very broken home. Pray for them!
DeleteThe further one gets from the Mediterranean centre of the universe, the less civilisation and knowledge of natural law there seems to be, though. Many tribes of Australian Aboriginals did not know exactly what caused procreation. When the first half-white babies started to appear they often killed them, believing them to be weaklings and sick because of their "yellowish" skin. They didn't make the connection with paternity. Allowing guests to the campsite to sleep with their women was considered a form of hospitality, along with offering food.
DeleteNatural law is known by the light of reason, but the Church needs to have the final word, not civil society.
Anon at 9:34 am: yeah that's a a good point, they hardly show evidence from, say, some social science study or the like, they usually just repeat a talking point. I agree with you regarding the sense of the word "natural", but my main question is, how do we discern that objetive standard? It seems to me that we do that by observing the natural world, we know by observing trees that it's good for them to have a good soil to be able to sink roots into, we know that a dog with three legs is a defective dogs because they're an anomaly. But if, on the contrary, it was the case that most dogs had three legs, then a four-legged dog would be the anomaly and we would have determined that the nature of a dog is to have three-legs. We determine the nature of a thing by observing particular instances of it. So when it comes to the family, it seems to me that we should seek that objective standard by observing human behavior. If we find out that the family as we know it is absent from most of history, could we still say it's a natural institution, but only that it failed to instantiate because of how corrupted humanity is? or should we conclude it wasn't a natural institution after all? I'm inclined to pick the first option, taking into account an analysis that Dr. Feser made about the HRE, saying that it's a natural institution that is currently dormant.
Deletebut rather a convention that, depending on who you ask, was instituted by christianity, or at most, by agricultural societies.
DeleteThe "by christianity" is quite a silly proposition, as the nuclear family structure is in recorded history long before that.
The other offer is more plausible. However, you have to ask, what kind of evidence could be used, before records? Although there are many, many examples of social structures that harbor clans and tribes that are much more vibrant realities than today's extended families, even in those we are not aware of many (or any?) that DIDN'T also harbor long-lasting adult male-female sexually paired units as a concept and a part of their social structure, rather than pure promiscuity in which not even an at-least-partly-exclusive male-female ongoing parenthood bond exists. That would be odd if the very idea of the (nuclear) family arose by reason of agriculture, as there are hunter-gatherer tribes even today.
The evidence from human emotions also tends in the same direction: while adults often show promiscuous desires that are wide ranging, they also have romantically exclusionary feelings as well: a desire to be THE ONE person for that other, and vice versa. Evolutionary scientists have suggested that this exclusionary feeling may find its roots in a "selfish gene" theory, whereby a bio father and bio mother being a persistent social unit provides a child greater chance of growing to maturity and reproducing. Whether that theory is correct or not, the fact that scientists have tried to explain it so implies that they recognize the possibility that the social unit arises from "natural causes". Or, as we natural law proponents would put it: from human nature.
Hey Prof
ReplyDeleteRecently Dr Budziszewski commented on lesser evil voting. Since you have been recently addressing the issue on twitter and this post is about abortion, I'll post it here. At the end of the article, he actually recommend your article about vigorously protesting the GOP changes in policy. Always great when you get commended by a fellow Classical Natural Law Theorist right.
So I'll just share it here.
https://www.undergroundthomist.org/evils-and-greater-evils
Cheers