Speaking of Law

In his review of Steven D. Smith’s work (“Law & Language,” November), Justice Scalia gets it not so much wrong as incomplete when it comes to his account of the nature of meaning. Using examples from linguistically challenged bridegrooms to typing monkeys, Scalia advances the textualist argument that meaning depends upon a “conventional understanding on the part of readers or hearers that certain signs or certain sounds represent certain concepts,” quite without regard to what their authors may intend them to mean. This in opposition to Smith, who takes the position that “textual meaning must be identified with the semantic intentions of an author. ” Both fail to see the whole linguistic picture.

Although one wouldn’t realize it from Scalia’s piece, arguments over intentionality and the nature of meaning have generated a substantial literature in twentieth-century analytic philosophy, linguistics, and literary theory. While the points of view run the alphabetical gamut from Austin to Wittgenstein, contemporary philosopher John Searle convincingly articulated a distinction that at least tends toward bridging the gap between Scalia-style conventionalism (with roots reaching to St. Augustine) and Smith-style intentionalism (traceable to the work of H. Paul Grice). In his 1994 essay “Literary Theory and Its Discontents,” Searle argues that: “there are at least two types of meaning, the conventional sentence meaning and the intentional speaker’s meaning . . . . [A] text can be regarded as either a string of sentence tokens and its meaning examined independently of any authorial intent, or a text can be regarded as a product of an intentional speech act and its meaning examined in terms of the intentions of the author.”

Surely this view comports with common sense and experience, as the simple examples of irony, code, and metaphor demonstrate. In such cases, sentence meaning and speaker meaning conflict (as they often do in ordinary discourse), and we privilege one over the other to gauge meaning overall, something we ordinarily have no trouble whatsoever in doing. Note also, though, how Searle’s distinction helps clear up some of the muddles on both Smith’s and Scalia’s parts when it comes to their (odd) hypotheticals. Searle would say No to Smith: Word-shaped markings in the desert sand are not meaning less even if somehow “natural”; they bear sentence meaning at a minimum. And No also to Scalia: The meaning of the bridegroom’s “I do” is not “unquestionable” when he intends by that utterance to mean “I do not.” For what he has uttered in fact bears two meanings on a Searlean analysis, one of which is interpretable prescinding from the bridegroom, but the other of which is not. A justice of the peace may well not look beyond sentence meaning in that case (and justifiably so), but the Catholic Church, for one, would certainly look (though likely, of course, in retrospect) to try to discern the speaker meaning of the utterance.

Scalia is to be commended for his textualist jurisprudence, but not because he’s somehow “gotten it right” about the nature of language or meaning. The properly articulated issue with respect to textualism, once we’re clear about the nature of meaning, is whether textualists are justified in focusing on sentence meaning (plus history) to the exclusion of speaker meaning when analyzing legislative texts. They are, for mainly two reasons: first, constitutions and statutes are ratified or voted upon by the persons, or their representatives, who are agreeing to be bound by them, so a focus on the more generalized sentence meaning is appropriate and, second, with respect to legislatures the notion of a discernible speaker meaning may be less than coherent in the first instance (although there is controversy over that).

Whatever one may think of textualism as a jurisprudential tool, its principles do not outline a larger prescription for the interpretation of language or symbols in general.

John B. Allen
Westport, Connecticut;

Justice Scalia’s review of Steven D. Smith’s book was insightful but also unfortunate. In it, he asserted a dangerous misunderstanding of the rights of unborn humans. Scalia suggested, as he has in other places, that such rights are a matter for the various states to decide. That assertion is incoherent. Without doubt, Americans owe a debt of enormous gratitude to Scalia and jurists like him who practice a genuinely modest role for judges. But there is a point at which excessive modesty can be nearly as dangerous as imperial ambition.

Scalia says that “the federal Constitution says nothing” on abortion, and abortion is “therefore left to be governed by state law.” It is likely that a large majority of pro-life Americans hope for just this sort of ruling from the new Roberts Court. Such a ruling will surely help correct the terrible error of Roe . But if the Supreme Court decides to follow Scalia’s suggested path, it will commit itself to reduced, but still profound, injustice and incoherence.

As Scalia pointed out in his review, words have meaning. To say that persons shall not be deprived of life, liberty, or property without due process of law cannot mean anything other than that. To make an exception, to allow states to deprive some people of their right to life simply because they are not yet born, is either to fail to take the Constitution seriously or to fail to take the personhood of the unborn seriously. The life of a person begins before birth. To take a life without due process of law is to violate the federal Constitution. Taking pre-natal life without due process of law is therefore not only unjust—it is unconstitutional.

It is to be hoped that Scalia’s understanding of the Constitution will prevail over the utter foolishness of Roe . We will owe him gratitude for his long labors when that day comes. But we must also hope that one day even Scalia’s improvement will be surpassed, and the Court will simply state the truth.

August Tican
San Diego, California

Although “abortion” is not in the Constitution, “person” is. The Fourteenth Amendment does say that no State shall deprive any person of life without due process of law. “Person” is not primarily a legal term. In fact, its roots in the West are theological and Trinitarian. Is Justice Scalia now maintaining that we must ignore the normal meaning of the term person in favor of “original intent,” that the drafters didn’t and probably couldn’t have even imagined that some would propose to kill the person in the womb? This must be his argument if the Fourteenth Amendment doesn’t apply to the unborn, and if the states can decide whether killing them is permitted.

Scalia himself seems to fall outside the classical legal tradition he wants to defend, because this tradition accepts (and some, like Jefferson, maintain that it is self-evident) that “God created.” Hence there is indeed a primary Author, or Lawgiver, by whose divine light we participate in the eternal law, which we call natural law. Until conservative judges and lawyers are willing to use and defend natural law jurisprudence, we will continue to be governed by godless majorities, whether they are judges or fellow citizens.

Luke A. Macik
Gallup, New Mexico

Antonin Scalia replies:

The three examples John B. Allen cites as demonstrating the need for “international speaker’s meaning” seem to me not to make his point. Code is simply an ad-hoc convention. It conveys no meaning other than the “conventional sentence meaning,” unless the reader has been told of, or has figured out, the code—which is to say he has learned which different, ad-hoc convention the words represent. The speaker is, to be sure, in control of the convention; but his words convey no meaning (other than the common conventional meaning) unless his peculiar convention is known to the reader. As for irony and metaphor, these depend, it seems to me, not upon speaker’s intent but upon context. I think it quite possible for a statement to be ironic even though the feckless speaker may not mean it to be so. “Unintended irony” is not an oxymoron. What counts is what the statement conveys, not what the speaker means it to convey. (I suppose it is possible to define an ironic statement as one that the speaker intends to convey the opposite of what is literally said—but that would prove not the existence of “intentional speaker’s meaning,” merely the possibility of defining meaning to be “intentional speaker’s meaning.” One can define a horse to be a cow.) And of course my analysis may be correct even though, unlike John Allen, I am not familiar with all the points of view “from Austin to Wittgenstein,” and have never even heard of John Searle (as he has not, I suppose, of me).

The answer to August Tican and Luke A. Macik is quite simple: The last sentence of section one of the Fourteenth Amendment does indeed say that no state shall “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.” The word “person” in these provisions could conceivably be meant to include fetuses. That the Fourteenth Amendment does not employ the word in that unusual sense is well enough established by the very next sentence—the first sentence of section two—which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” No one has ever thought that pregnant women must be counted (at least) twice. Philosophers, I suppose, can disregard this affirmation of ordinary meaning, but not judges who pay attention to text. Fetuses may well deserve the same protection against destruction as other human beings; and natural law may well give it to them; but the positive law adopted by the American people and entrusted to the enforcement of their courts does not—unless and until legislation to that effect is adopted. I believe, of course, that such legislation is entirely permissible, since the argument that the Constitution forbids protection has even less to be said for it than the argument that the Constitution confers it.

Jews and the Covenant

Avery Cardinal Dulles’ essay, “The Covenant with Israel” (November) is a clear, forceful presentation of what, I assume, is an orthodox Catholic view of the role of Judaism in the economy of salvation. Dulles pulls no punches. He does not bow before the pieties of interfaith etiquette.

Both Jews and Christians can appreciate his forthrightness. Dulles believes, without putting too fine a point on it, that Judaism’s role, after Jesus, is at best quite limited. The Old Covenant is fulfilled in the New. Whatever remained in the Old that does have an ongoing role (in the moral law, for example) endures, but it has, through Jesus, been given a truer, fuller sense. The ritual law has been nullified; the Aaronic priesthood thoroughly absorbed and transformed by the priesthood of Christ. Jews will eventually join the body of Christ. Their ongoing resistance is a mystery. If I understand Dulles’ article correctly, the mutual exploration o f that mystery is the purpose of the Jewish-Christian dialogue. Christians can use the dialogue to bear witness to their faith and to learn why Jews remain, despite a lack of adequate grounds from a Christian point of view, Jews.

Is that , after all these years, what dialogue is for? I would have thought that, minimally, dialogue is about understanding the other as the other understands himself. I had thought that dialogue is about the selective (and temporary) suspension of theological judgments drawn solely out of one’s own tradition in order to allow one to listen to another. What one does with what one has heard surely requires going back to one’s own categories in order to make, and perhaps to rework, theological judgments. But can dialogue be conducted solely on the ground of territory already secured by one’s own tradition? Doesn’t it involve a certain sallying forth onto new, unsecured and insecure ground? If there is no listening, with as full an openness as we can muster, then how does dialogue differ from disputation?

I mention this because Dulles’ views, in my opinion, fail to take into account how Jews understand their own tradition. There is no evidence that his position has been affected by an encounter with a Jewish voice. Drawing upon a long tradition of Christian authorities, Dulles affirms that the “Jewish rites” no longer have any “saving efficacy.” But what Jews really think that their “rites” or “the Law,” or as Jews would more properly say, the Torah, saves? Neither rites, nor law nor the Torah save; God saves. Every morning, pious Jews recite a prayer that affirms that “it is not on account of our righteousness that we offer our supplications before you, but on account of your great compassion.” Our merits and accomplishments are nugatory. We rely only on God’s mercy. Nonetheless, as the children of the covenant with Abraham, Isaac, and Jacob, it is our duty to praise God and to give thanks to Him. An equally accessible, normative text puts it: “Do not be like servants who serve the master in expectation of a reward but be like servants who serve the master without expectation of a reward, and let the fear of heaven be upon you.” Paul and his theological descendants describe a Judaism that Jews cannot recognize. Does it suffice for a Christian theologian, who does not dismiss the value of dialogue with Jews, to see Judaism primarily through the eyes of Paul and not through the eyes of living, faithful Jews?

The same importation of Christian frameworks of analysis and evaluation may be found in Dulles’ use of such distinctions as ritual or ceremonial vs. moral law and conditional vs. unconditional covenants. I am not saying that these distinctions are not sensible or useful ways of parsing the data of biblical religion. I am saying that they are not Jewish ways of doing so. The rabbis do make categorical distinctions among commandments, but the division of commandments into ceremonial and moral is not one of them. That division serves a Christian apologetic purpose, not a Jewish one. Similarly, the scholarly convention of seeing two types of covenant model at work in the Hebrew Scriptures has utility. In normative Jewish sources, however, the Sinai covenant is unconditional; the eternal validity of the Torah does not depend on human fidelity to it. The new covenant written on the heart, heralded by Jeremiah, is not different from the “old” covenant in content, only in medium. The covenantal way of life, crystallized in the commandments, will be known from within, not learned from without. The recipient of the “covenant grant,” David, is not, as a Jew, exempt from following the provisions of the “covenant treaty.” The distinction that Dulles wishes to draw, as useful as it might be in the academy or in academic Christian theology, fails to do justice to living Jewish thought and faith.

I do not urge anyone to depart one iota from his orthodoxy. If one wishes to enter the way of dialogue, however, one ought to be willing to run its necessary risks.

Alan Mittleman
New York, New York

Cardinal Dulles writes “that according to the teaching of Paul, which is normative for Christians, circumcision and the Mosaic law have lost their salvific value, at least for Christians, and in that sense been ‘superseded.’” He adds: “But I do not wish to deny that the observance of some of these prescriptions by Jews who have become Christians could be permissible or even praiseworthy as a way of recalling the rootedness of Christianity in the Old Covenant.”

I would be curious to learn on what basis Cardinal Dulles proposes to divide the prescriptions of the Hebrew bible into those that Jewish Christians would be allowed to observe and those they would not. More important, I do not agree that Paul believed the commandments of the Hebrew bible to be no longer obligatory for Jewish followers of Jesus. The issue that concerned Paul was circumcision and Torah observance for gentile Christians. In Acts 15 we learn that the problem of circumcision and Torah observance for gentile Christians is brought by Paul to the Jerusalem church where it is debated and the decision is reached that gentile Christians need only the Noachide commandments which, together with their faith in Jesus, justify them before God. But the fact that this issue was debated by the Jerusalem church implies that Torah observance for Jewish Christians was taken for granted in Jerusalem since if Torah observance after Jesus was no longer necessary for Jews, it could hardly be thought to be obligatory for gentiles. Acts 15 together with Matthew 5:17-20 lay a solid basis for the view that Jesus and the early church considered Torah observance to be obligatory for Jewish Christians but not for gentile Christians. Cardinal Dulles fails to make this essential distinction.

Nevertheless, I am pleased to learn that Cardinal Dulles is willing to entertain the possibility that observance of some of the commandments of the Torah may be praiseworthy for Jewish Christians.

Michael Wyschogrod
Professor Emeritus of Philosophy
Baruch College of the City University of New York

Avery Cardinal Dulles claims that salvation will not be denied to Jews who, through no fault of their own, do not know Christ. He later adds that even Jewish unbelief is not a ground for condemnation.

In fact, Jews are typically not ignorant or unbelieving, but are dis believing: They believe that Jesus is a false Messiah. While Cardinal Dulles may technically be correct that sincere disbelief will not, as such, merit condemnation, it is, given the effects of original sin, surely a very dangerous state in which to be. Since the Catholic Church possesses the certain means of salvation in her sacraments, those who remain out of communion with it are at grave risk.

What I find missing from post-conciliar theories of religious freedom is any sense of the urgency of salvation. This loss of what used to be called “zeal for souls” shows a distinct lack of charity as well as a diminished sense of the reality of evil.

Robert Phillips
Professor of Philosophy
University of Connecticut

Cardinal Dulles’ article is a sensitive and nuanced theological analysis of the Catholic view of the present status of God’s covenant with a specific people, the Jews. But it would be a mistake to think that this issue is or should be the main engine of ongoing religious dialogue between Catholics and Jews. The real agenda on the theological side of that dialogue, it seems to me, is both sparer and profoundly more difficult: First, eliminate all vestiges of demonization, on both sides. Second, understand and appreciate the present, lived reality of the other partner in the dialogue.

Theological anti-Semitism, which was a piece of what Cardinal Dulles calls “crude supersessionism,” was indeed pernicious, but not because it denied the “salvific value” of Jewish faith and observance. Rather, the sin of the old anti-Semitism was that it held Jews to be uniquely condemned or cursed, either for their killing of Jesus or their rejection of the Gospel, or both. The consequence was an especially venomous form of hatred and persecution.

The documents of Vatican II, and Pope John Paul II and the present pope, among others, have largely repudiated that old idea. If anything, Jews—described by John Paul II as the “elder brothers” of Christians and by Cardinal Dulles as “most dear to God”—seem now to hold a place of honor above those of other faith traditions. But that new view contains its own danger: It still values Judaism largely for its role as the harbinger of Christianity. It still does not fully embrace the second item of the agenda, which is to appreciate Judaism as a lived reality with its own history, its own traditions, and its own theology.

There is much to be said for the view that treats the living faiths of Christianity and Judaism as each equally “young.” The trajectory of Christianity since the two traditions separated included the New Testament, the Fathers, Thomas Aquinas, the Reformation and Counter-Reformation, and the personalist orthodoxy of John Paul II. The trajectory of Judaism included the Mishna, the Talmud, Maimonides, the effects of emancipation, and the existentialist orthodoxy of Joseph Soloveitchik.

In particular, it is crucial for Christians to understand that Jews (of whatever stripe) do not see their religious observance and system of moral and ritual commandments primarily in terms of the Christian category of “salvific value.”

To be sure, reward and punishment in this world and the next is a traditional tenet of Jewish faith. But the depth and richness of Jewish self-understanding is elsewhere.

Jewish thinkers have over time suggested a variety of purposes for the commandments—as prescriptions for a good society, as prods to covenantal solidarity, as vehicles for achieving transcendence or contemplating the divine, as theurgic acts contributing to the redemption of the entire universe, or simply as the unexplainable will of God, to be obeyed out of loyalty and love. None of these explanations focus on individual salvation; they reveal a tradition that not only provides different answers than Christianity but often asks entirely different questions.

This might help explain why Jews could take offense at Jean-Marie Cardinal Lustiger’s claim, referenced by Cardinal Dulles, that he has not ceased to be a Jew.

Most Jews do not begrudge Cardinal Lustiger’s sincere conversion or his continuing sense of connection to his roots. But they do perceive the wrong-headed view that for a Jew to become a Christian is a matter of deepening or elevating or completing one’s prior faith, when in fact it is also a matter of flattening and evacuating and sundering a precious and unique heritage.

It is for God to decide whether that heritage is worthy, but it is for human beings at least to understand and acknowledge its richness and continuing vitality.

Perry Dane
Professor of Law
Rutgers University

Avery Cardinal Dulles does, as usual, a brilliant job in his recent article on the Jews and the Covenant, evading both the Scylla of supersessionist Marcionism and the Charybdis of false equality between the Old Covenant and the New.

At two crucial points, however, he leaves matters somewhat vague. The first point concerns the passing benediction he gives to the idea that a Jewish convert to the Faith might retain particularly Jewish observances “as a way of recalling the rootedness of Christianity in the Old Covenant.”

On its face, this seems not to square with the cardinal’s previous citation of traditional Church teaching that Jews ought to give up their Jewish practices; neither does he deal here with the admonitions given by St. Paul to the Galatians. Perhaps the more important question is what Cardinal Dulles means when he says that Jewish and Christian “honest differences” about Christ’s place as Messiah and Lord are a “powerful incentive for dialogue.”

Is this but a more modern, and modest, manner of suggesting that Christians preach Christ to their Jewish brethren? I expect so, but wonder why Cardinal Dulles did not state this more clearly. Perhaps a clear statement would become a stumbling block for future dialogue.

Mark Wyman
Physics Department
Cornell University

A few questions regarding Cardinal Dulles’ article, “The Covenant with Israel.” I am Jewish and have always been confused about how Christians view the notion of being commanded.

I take Cardinal Dulles to say that the Church accepts the Decalogue to the extent that it is consistent with natural law, but does not accept the parts that are “ceremonial.” If that is the case, why engage with the Commandments at all? An assertion that God chose to outline some of the natural law in the Ten Commandments would seem to suffice. In that case, we would not be commanded, but morally bound to follow the natural law.

Peter R. Silverman
Toledo, Ohio

Avery Cardinal Dulles replies:

Alan Mittleman has rightly understood the intent of my article. I wrote it as a corrective. Too often Christians have misled Jews, giving the impression that there are two parallel covenants, equally pleasing to God, so that Jews do not need to be evangelized. Such a view, I maintain, is irreconcilable with the New Testament and with the whole Catholic tradition. It is contrary to Vatican II (which expressed the hope that the whole world would recognize Jesus Christ as Savior), and incompatible likewise with current magisterial teaching, which is normative for Catholics.

Dialogue is an excellent thing. It has purposes much broader than those that Mittleman attributes to me. My article does reflect the findings of recent dialogues, which emphasize God’s continuing predilection for the people of his choice. But Christians in dialogue should be vigilant to avoid what Vatican II called “false irenicism.” John Paul II repeatedly warned against the temptation in dialogue to conceal or minimize real differences, as did Cardinal Ratzinger (the present Pope Benedict) in Dominus Iesus (2000). In the great jubilee celebrating the Nativity it was especially urgent to proclaim the universal Lordship of Jesus Christ.

I did not in my article attempt to say how Jews understand themselves today. Some, no doubt, would agree with Mittleman when he states that because God is Savior the rites by which we worship him are not salvific. But others might think that when we worship God according to his precepts we dispose ourselves better to receive his favor and blessings. Are the covenant blessings automatic, arbitrary, or contingent on our obedience?

It will be for Jews to say how far they have changed from the time of Paul, who practiced Judaism according to the Pharisaic tradition of his day. Professor Mittleman has every right as a Jew to hold for the eternal validity of the Torah and to propose categories and distinctions unfamiliar to Christians. I welcome his forthrightness and hope to learn from him and others how Jews understand the requirements of fidelity to the covenant today. In a frank and honest exchange, Jews and Christians alike can profit. Jews as well as Christians can no doubt revise their theological judgments and find new areas of commonality.

Robert Phillips would, I assume, agree with me that no one is beyond reach of salvation and that no one should take salvation for granted. Persons who through no fault of their own do not know Christ and the Church can be saved, provided that, with the help of God’s grace, they sincerely seek God and strive to do his will as it becomes known to them.

This statement, which I took from Vatican II, does not lay down conditions that are easy to fulfill. All who are in a position to recognize Jesus as Messiah and Lord have an obligation to believe and confess his Name. If they join the Church, they will have many more helps to salvation, but also greater responsibilities, because much is required from those to whom much is given (Luke 12:48). I do not see that my article reflects a lack of zeal for souls. I only hope that it is a zeal “according to knowledge” (Romans 10:2).

In answer to Perry Dane, I would like to recall that Jesus demands sacrifices on the part of those who would follow him. They may have to surrender cherished friends and familiar customs and landmarks.

But many converts from Judaism testify that they find again, on a new level, the very things they seemed to be losing, including the ones Mr. Dane lists: divine prescriptions for a good society, covenantal solidarity, the sense of transcendence, contemplative union with God, and obedience motivated by loyalty and love. In Christ they find the Redeemer of the universe.

Because I had in mind the statements of Paul in Galatians and the words of the Council of Florence, I was cautious in what I said about Jewish converts to Christianity who continue to observe some prescriptions of the Jewish Law. I said only that I do not wish to deny that such observance might be permissible or laudable, provided the rituals are not seen as still operative as means of salvation. One could perhaps argue that Paul and the Council of Florence meant to forbid only a reliance on these rituals as salvific.

To the questions of Peter Silverman I would have a twofold answer. In the first place, the fact that the Ten Commandments in great part reiterate provisions of the natural law does not make them useless. We obey the precepts because they are commanded, but we recognize that we would be obliged to obey them even if they were not commanded, because the actions they prohibit are evil in themselves. The revelation of God’s law gives us a new motive and a greater clarity about the law itself.

Secondly, the ceremonial aspects of the Ten Commandments enrich our understanding of Christ and the Church. We continue to cherish the ceremonial law for its typological significance. The deliverance of the Jews from their Egyptian bondage, alluded to in the first commandment, prefigures Christ’s delivery of his people from the captivity of sin. The Jewish Sabbath prefigures what Christians celebrate as the Lord’s Day. By understanding the Jewish roots of their faith, Christians more fully who they are.

I am pleased to hear from Professor Wyschogrod, since in my article I touched on his interesting proposal regarding the observance of prescriptions of the Mosaic Law by Christian converts from Judaism. As noted in my response to Perry Dane, I am not prepared to deny that Jewish converts might legitimately wish to observe certain Jewish precepts, provided that they do not regard such observances as obligatory.

In saying that some precepts of the Mosaic Law might be observed, I had in mind the impossibility of observing them all. The prescribed Temple sacrifices, for example, can no longer be offered.

Professor Wyschogrod goes further and holds that according to the early Church and Paul, Jewish converts were bound by circumcision and Jewish dietary laws. Here I must disagree. As for Paul, he insists in Galatians 2 that he and Peter, as converted Jews, are free from these observances. According to Acts 10, Peter learned by special revelation that Christians, including himself, were exempt from Jewish food laws. Acts 15, cited by Wyschogrod, does not legislate for Jewish Christians, but Peter’s speech in verses 7 to 11 is consistent with Acts 10. As for Matthew 5:17, the other text cited by Wyschogrod, it presents Jesus as the fulfillment of the law and the prophets. This could well mean that the higher righteousness of the new law achieves all that had been anticipated by the Mosaic Law and the prophets. This interpretation harmonizes with Romans 10:4, Ephesians 2:15, and many other New Testament passages.

Representative Lutherans

In “Lutherans Undefined,” (November) Robert Benne laments the progressive leadership of the ELCA, is relieved by the decisions made concerning sexuality, and appalled by the “egregious . . . actions foisted upon the assembly.” I can agree with him that the national leadership of our church did an excellent job of campaigning for progressive change. What concerns me about his assessment of the churchwide assembly is the way he patently ignores how the governance of our church works.

Every synod of our church sends representatives to the churchwide assembly. The synods elect their representatives from among the voting members of their annual assembly. Our system of governance is very democratic and therefore, at least in theory, is capable of electing representatives who share the prevailing views of each synod. When the representatives come together to conduct the business of the ELCA, they are representative of the entire church. How they vote on each issue says something about the prevailing attitudes within the ELCA.

Benne seems to be confused about who the ELCA is. The ELCA is not the elected leadership; the ELCA is all the baptized children of God who gather every Sunday to worship the crucified and risen Christ. These are the people who participate in the election of synodical bishops as well as the election of the presiding bishop. Who they elect is an indicator of where the majority of the church is on any given issue.

The churchwide assembly knows what it is doing when it elects a presiding bishop, and it is aware of that bishop’s views when he or she is elected. It was clear when our presiding bishop, Mark Hanson, was elected that he had progressive views. It seems to me that our presiding bishop and the Chicago-based leadership of the ELCA are a reflection of the prevailing views within the ELCA as a whole.

Rev. Randy Jones
Montgomery, Alabama

Robert Benne replies:

Randy Jones takes issue with me on two related points. First, that I argued the ELCA leadership is moving the church in a more “progressive” direction without the knowledge and consent of the majority of its members. (He contends that the membership of the ELCA affirms and supports that “progressive” direction.) Second, that I implied that the national leadership acts undemocratically in furthering its agenda. (He believes that the ELCA is an accurately functioning representative democracy, and therefore its “progressive” direction is a true reflection of the majority will.)

There are number of problems with his arguments. First, the vast majority of ELCA members live at the local parish level and have little interest in synodical (regional) and churchwide (national) affairs. The largest portion is made up of lukewarm Christians who do not sense anything important at stake in the debates over sexuality issues. A smaller portion are traditional Lutherans who are unaware of the changes being proposed. When they become aware, they become upset. Some can be gathered into various efforts of resistance carried on by already energized traditional Lutherans; some of the traditionally minded just leave the ELCA. The smallest portion agrees with the “progressive” direction of the ELCA. (Of those who responded to the studies of the ELCA Task Force on Sexuality, almost two thirds wanted no change and about a fifth supported change in traditional Christian teachings on homosexual conduct. But the vast majority of ELCA members participated in no study group and registered no opinion.) So it is difficult to make the case that the great mass of nearly four million ELCA members supported the measures proposed by its Church Council. From those that tuned into the controversy, a definite majority wanted to keep traditional teachings and practices. The churchwide expression of the ELCA seems to be at a different place than the members of its local expression.

After ignoring these figures, Pastor Jones then offers a somewhat dubious account of ELCA governance. He begins by saying that congregations and synods elect representatives. As an ELCA pastor he should know that the word “representative” is anathema to ELCA authorities. Those elected are “voting members” and are supposed freely and conscientiously to vote their own conscience, not represent anyone. Even the ELCA denies that it is a representative democracy.

And, of course, it is not, nor should it be. It should not be a representative or any other kind of democracy when it comes to core doctrine. One of the truly worrisome things about the Orlando Assembly was that a two-thousand-year, near-universal tradition of Christian moral teaching could have been altered by a majority vote. Will the Trinity in its patriarchal form—Father, Son, and Holy Spirit—be the next target? Even in other matters that could be appropriately settled in a democratic matter, the ELCA is far from that. Some synods have never had a “voting member” on the Churchwide Council. Indeed, efforts were made to expand the membership of that council so each synod would have a voting member. That was defeated.

Finally, I would strongly deny that the ordinary ELCA member knows the “peace and justice” agenda of Presiding Bishop Mark Hanson. When he speaks to ELCA constituencies he spins homey yarns of his family and moves into the evangelical rhetoric of the pietistic tradition from which he comes. When he spoke to a conservative Virginia Synod assembly last summer he received a standing ovation because he pressed all the right buttons. But, as I argued in my article, the agenda he really fights for is the liberal Protestant one.

Pro-Life Libertarians

I was surprised to see an astute political observer like Richard John Neuhaus (The Public Square, November) attribute pro-abortion and pro-homosexuality positions to being a libertarian. In the case of abortion, libertarians divide on the issue, depending on when they believe life begins. While pro-life libertarians would be less enthusiastic than the average pro-lifer about the efficacy of government regulation of abortion, their position is still consistently and avidly pro-life. And allowing people to engage in homosexual conduct is not equivalent to endorsement—any more than failing to advocate laws prohibiting smoking is akin to condoning the practice.

D. Eric Schansberg
Professor of Economics
Indiana University

Correction: Helmut David Baer, co-author of an article on just war theory discussed in these pages, teaches at Texas Lutheran University, not the University of Texas.

Articles by Various

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