Divine Action

Ross McCullough dissects the God-of-the-gaps objection (“God and the Gaps,” April), which for too long has functioned as a smear rather than a serious argument at the border between science and theology. It’s unfortunate that we have to be reminded that no (orthodox) Christian should deny, a priori, that the explanation for some event might just be the direct action of God. If God really did raise Jesus from the dead, then any rational method oriented toward truth should allow for that possibility.

That said, even though Christian theology creates intellectual space to consider God’s action in nature, actual God-of-the-gaps arguments in Christian history are far less common than supposed.

It’s true that pagans sometimes appealed to supernatural beings, such as Zeus or Thor, to account for lightning, earthquakes, and the like. And Christians often invoke God’s action for certain seemingly providential events. But there are few well-documented cases of a scientist invoking God’s direct action to explain a phenomenon that was later decisively explained by a physical law.

The one clear case of such an argument might have come from Isaac Newton, who seemed to invoke God’s direct action to account for the orbits of the planets around the sun. Later scientists concluded that this was not a necessary conclusion, and that purely natural processes could explain the construction of the solar system.

Whatever one may say about Newton’s argument, it is clearly erroneous to call contemporary arguments for intelligent design “God of the gaps” arguments, which in this context would be a special form of the argument from ignorance.

To cite just one example, biochemist Michael Behe argues for intelligent design based on detailed empirical knowledge of biochemical systems, careful consideration of the likely limits of the Darwinian mechanism, and positive criteria (such as evidence of foresight) for inferring design.

This is not an argument from ignorance or even an explicit appeal to God’s direct action, but simply an argument that agent causation or purposiveness is the best explanation for certain natural phenomena.

Jay W. Richards
Discovery Institute
Seattle, Washington

To some, Ross McCullough’s attempt to insert God into the gaps of scientific knowledge may seem like a perfectly good way to salvage the hypothesis of divine action. After all, if we have exhausted all possible natural explanations for, say, the origin of life, why not admit God as a possible explanation? As he writes, what is “always and most fundamentally at stake in scientific questions” is the truth. And if the truth points to a creator, why not acknowledge that fact?

Why not, indeed? But McCullough’s idea of truth is a strange one. The “truth” of his God appears only when human reason and imagination are exhausted. It counsels us to find God in the dark recesses of ignorance rather than in the bright light of human knowledge. And it includes a remarkable, self-defeating concession to those who would enlist science in their struggle against faith.

McCullough flatly states that the “cultural dominance of science ensures that its methods color our broader view of the world, and its atheism is no exception” (my emphasis). But science is not atheistic. Rather, it is non-theistic, and the distinction matters.

Science does not deny God’s existence, but rather operates with the sensible understanding that it is only competent to deal with the universe of matter and energy in which we find ourselves. Thus science rightly embraces materialism as its method of exploring that universe. Following McCullough’s lead, even mathematics would be “atheistic,” since algebra and calculus make no mention of the divine.

By equating science with atheism, McCullough plays into the hands of those who would like to depict faith as nothing more than the remnant of a dull and incurious pre-scientific culture. His only role for God is that of tinkerer, of a designer who could not get his creation quite right the first time. Hence, he’s had to intervene in clumsy and detectable ways to fill gaps in the fossil record or to spark the origin of life. When science explains such things, as it has done repeatedly, McCullough’s flimsy concept of the divine beats a hasty retreat.

A God of faith and reason cannot be a God of the gaps. Rather, he must be a spirit that encompasses everything, our knowledge and our ignorance, our wisdom and our foolishness. Far from being separate from scientific understanding, he is the reason science works. God is the reason that the universe, incredibly, is understandable at all.

Kenneth R. Miller
Brown University
Providence, Rhode Island

Ross McCullough replies:

I thank Jay Richards for his helpful example. Newton is a nice reminder that even the baldest kind of argument from ignorance need be no obstacle to scientific progress. Kenneth Miller maligns this as finding God “in the dark recesses of ignorance.” I call it a process of elimination. Either way, it becomes a harder method to rule out in principle when it is shown to be compatible with the production of the Principia .

Miller does well to characterize my God as a tinkerer (though I went to some lengths to suggest that he is not only that), for this is the heart of our disagreement. He thinks that that world is more fitting in which God need not tinker, and that is a wholesome intuition.

But it is an intuition I deny, not simply because God “could not get his creation quite right the first time” but because the creation has been getting itself wrong ever since. It is surely significant that miracles”the paradigmatic tinkerings”are in general responses to sickness, death, evil; to sin and the consequences of sin. Miller’s position with its attractive intuition might accommodate this, but it will contort his conception of these miracles into forms too grotesque for me to countenance.

This is the heart of our disagreement, for if Miller will grant me the tinkering, the rest of his argument falls away. If God tinkers, then science need no longer operate “with the sensible understanding that it is only competent to deal with the universe of matter and energy.” With a tinkering God, the natural world bears signposts of the divine in its interrupted chains of efficient causality: The world opens out upon God not just in all the other ways Miller and I might agree upon, but in this scientific way as well.

In other words, some of God’s actions in this world become the object of scientific study. This is why a materialist science in such a world is only speciously non-theistic and properly atheistic: It grounds its exclusion of God not on the nature of its object but on whimsy and distemper.

If mathematics by methodological fiat excluded Euclid from the outset, if it sent away all its geometers, we would either force a reconciliation or redefine math as only part of the science of number. Likewise here. If science insists in this miraculous world on a steady materialism, we should either explode its barricades or recognize that it no longer encompasses all empirical study. I have recommended the former course.

Homeschooling

Mary McConnell offers a lively discussion of the positive effects of innovation in education (“Schooling Dangerously,” April). The two books she cites offer clear support for the myriad reasons to homeschool. The first, Joseph Murphy’s Homeschooling in America, uncovers a surprising fact: Homeschoolers can do well regardless of their parents’ education level. What a tribute to the American dream! It’s no easy task to get through the maze of educating your children on your own, but most parents can do so successfully.

Nevertheless, many think that typical homeschoolers abuse their children academically. Worse is the presumption that parents shouldn’t influence their children’s thinking. A typical letter to the editor, found in the Kalamazoo Gazette , complains that “the trouble with homeschooling is not so much that it serves as a smokescreen for havens of child abuse, but that it can, with state sanction, substitute ideological indoctrination for actual education.” Homeschoolers similarly wonder why public- and private-school families want to “indoctrinate” their children.

Homeschooling may not be a panacea, but neither is it the villain. In fact, if we believe that more specialized individual attention benefits students, then homeschooling should be evaluated positively.

At the end of the article, McConnell suggests that most schools will start going down the road to innovation and learn something from homeschoolers. Wouldn’t that be a refreshing change?

Kathy Schjelderup
Salt Lake City, Utah

Pragmatic Liberalism

Robert T. Miller’s refutation (“Eudaimonia in America,” April) of Patrick J. Deneen’s “Unsustainable Liberalism” (August/September 2012) begins with a strangely high-handed assertion. He cites Deneen’s and others’ “factual claim that America is a land of moral nightmares” and replies that he finds it “simply unaccountable.”

In using the term, Miller denies any empirical evidence for the claim, and indeed, he calls it an “unbalanced judgment” and “wildly wrong.” In other words, Deneen et al. are hysterics.

Miller proceeds to rebut the claim anyway with an analogy. On one side, we have an individual who sins in his marital life but who displays ample virtue everywhere else. On the other, we have a nation with considerable guilt to acknowledge (slavery, abortion), but which compensates with religious liberty, republican government, and vitality in the arts and sciences.

Let’s not let the first obscure the second, which is more broad and lasting. There are two problems with this analogy, however. One, a man who acts nobly elsewhere but routinely cheats on his wife is, indeed, living a moral nightmare. And two, the nightmares of the United States today are not so easily compartmentalized.

Mass culture penetrates everywhere, and it purveys one abomination after another. I presume that Miller would agree that reality TV shows, violent video games, porn websites and satellite channels, people bickering on cable news shows, rap music, Hollywood films, teen and gossip magazines, comment threads on blogs and YouTube and media outlets, obscene speech in public places, popular books such as Fifty Shades of Grey , and celebrities such as Lady Gaga bear enough blatant vice in themselves to count as moral nightmares. Where Miller would disagree, I presume, is in their reach.

But if we look at consumer and demographic data on mass-culture materials, we can rightly conclude that they dominate leisure time. This isn’t anecdotal grumbling”it’s statistical fact. Lady Gaga’s crude and adolescent “Bad Romance” has piled up over 516 million YouTube views. Fifty Shades of Grey has sold 35 million copies in the U.S. alone. Appalling films such as American Beauty run up awards and receipts. Columnists at the most prominent newspapers and magazines demonize anybody who disagrees with their views.

One could go on, and Miller could reasonably retort that highlighting such things only neglects the better aspects of American life. Perhaps so, and we can debate the relative impact of virtuous and vicious expressions in the public square. What we shouldn’t do is follow Miller’s example and term his dismissal of the moral nightmare claim itself “unaccountable,” “unbalanced,” and “wildly wrong.”

Mark Bauerlein
Emory University
Atlanta, Georgia

Robert Miller’s pragmatic defense of modern political liberalism seems misplaced. A eudaimonist like Aquinas will recognize that positive law must always be pragmatically tailored to time, place, and possibilities. Aquinas expressly says this in his Treatise on Law . The framing of just, good, and workable positive law requires the exercise of the virtue of phronesis , practical wisdom.

But this means that all instantiations of positive law are in some sense relative to the higher moral law. The problem with most Christian defenses of modern liberalism is that they reify rather than relativize the particular instantiation of positive law that is American constitutional democracy.

Indeed, many reify American constitutional democracy to the point of making constitutional originalism into a kind of Christianvirtue and treating the U.S. Constitution as a kind of scriptural text. In glossing over this distinction between the tendency to relativize and reify one form of positive law, Miller misses the point of the MacIntyrean critique. It is not an “attack” on America.

It is a recognition that American constitutional democracy, like every other instantiation of positive law, stands in subordinate relation to the divine law and must finally be judged by the standards of a new kingdom whose head is the Lamb that was slain before the foundation of the world.

David W. Opderbeck
Seton Hall University School of Law
South Orange, New Jersey

To rebut the argument that we are a morally corrupt nation, Robert Miller cites our many “good qualities” (form of government, arts, etc.). These, however, are products of the enlightened mind, not proofs of moral uprightness. Miller’s rebuttal is thus unpersuasive.

Jim Severance
Loganville, Wisconsin

In attempting to refute Patrick Deneen’s thesis that classical liberalism is the cause of our current social pathologies, Robert Miller claims that “social pathologies do not result primarily from philosophical mistakes.” They are, he argues, the result of a whole list of other elements, but he never questions the philosophical roots of the very examples he uses. For instance, he completely ignores the moral wars that raged around the use of contraceptives, his primary example.

He sees America today as a “system [which] provides us the best hope of leading good human lives.” Yet he never questions what “good” means, which values are “human,” and what the consequences of the “pragmatic political compromises among people” would be.

I agree with Deneen’s assessment that we must question every value of liberalism and apply that questioning to the very fabric of our American social system. I am not satisfied with “what is best relative to the circumstances,” as Miller is. I want more for this nation, more for our people, more for my children and my grandchildren.

I want for America what Miller is unwilling to seek: “what is best in the abstract.” That is, what is objectively good and true within man’s nature, for there is no difference between what is “true” and what is “practical””when man does not attempt to remake himself in the liberal Enlightenment image as a being opposed to nature and subject only to his own will.

Joseph P. Stringer
Summerville, South Carolina

Robert T. Miller replies:

I thank all the correspondents for their interest in my article and for taking the time to write.

Mark Bauerlein describes some bad aspects of our popular culture and emphasizes just how popular they are, concluding that we can debate the relative impact of the good and the bad in America today. I agree with that.

What I think is crazy is the extreme conclusion that the bad vastly outweighs the good. Reality television, violent video games, trashy books, and internet pornography are indeed bad things, but a person can largely avoid them if he wants, and they are nothing compared to despotic government, substantial violations of freedom of religion or freedom of speech, gross failures of the rule of law, concentration camps, forced abortions, ethnic cleansing, religious terrorism, and abject poverty, all of which plague certain other nations today. If America is a land of moral nightmares, what is North Korea?

In judging the overall moral character of a society, it’s important to keep things in perspective. People who think America is a land of moral nightmares don’t do that.

David Opderbeck doesn’t realize that I agree with him. I distinguished philosophical liberalism, which holds that the tenets of a liberal political order are high moral principles, from pragmatic liberalism, which holds that these tenets are mere pragmatic compromises that allow people with different normative views to live together in peace. I then argued that Aristotelian“Thomists like me can and should be pragmatic liberals. My position is thus worlds away from treating the Constitution as a sacred text, and far from obscuring the distinction between “reifying” and “relativizing” American constitutional law, my distinction between philosophical liberalism and pragmatic liberalism largely tracks it.

Opderbeck says that American law, like all human law, is subordinate to divine law, and of course I agree, as would any believing Christian and as did the founders. If that were all Alasdair MacIntyre and Patrick Deneen were saying, my disagreement with them would end. In fact, however, both men hold a far more radical position.

Jim Severance thinks I cited only its intellectual achievements in defending America against its detractors, but he is simply mistaken. Among other things, I emphasized America’s respect for human rights and the rule of law and its concern for the poor. These are moral accomplishments, not intellectual ones.

As to Joseph Stringer, I never denied that people engage in philosophical arguments about things that he and I agree are social pathologies. What I said was that philosophical ideas are not an important cause of such pathologies. As to my idea of a good human life, I expressly said that I am an Aristotelian“Thomist in morals; I assumed readers would infer from that what I recognize as a good life. If Stringer is in doubt, he should consult the Secunda Secundae .

Finally, I admire Stringer’s ardor in wanting what is best in the abstract, not merely what is best relative to the circumstances. No doubt we must keep the ideal in mind in order to judge practical realities rightly, but if we aim at the ideal in circumstances in which it is obviously unattainable, we generally get neither the ideal nor even the best we might have gotten if we had adopted more limited aims.

“In a commonwealth and in the councils of princes,” Thomas More wrote in Utopia, “if ill opinions cannot be quite rooted out, and you cannot cure some received vice according to your wishes . . . you ought to cast about and to manage things with all the dexterity in your power, so that, if you are not able to make them go well, they may be as little ill as possible.”

Contrary Berry

Christopher C. Roberts doesn’t quite engage with Wendell Berry’s understanding of (gay) marriage when he characterizes it as “a portable contract, suitable for any two autonomous individuals who want the law to facilitate their care for one another” (“Wendell Berry’s Marriage Reversal,” April). It seems to me that what Berry is describing is not autonomy but interdependence.

Marriage also typically links the families of the spouses. It’s not clear to me from Roberts’ article whether Berry thinks in those terms when he describes gay marriage, but certainly pledging to care for one another’s families would not suggest autonomous individuality.

Berry, however, seems in Roberts’ account to be weirdly scared of acknowledging that marriage is a sexual union. It is not solely a caretaking arrangement, however profound and loving that care may and should be.

Believing that marriage is a shelter for sex”that the promise of the spouses supports the promise they make with their bodies, and offers protection to the children they may make even without knowing or intending it”doesn’t actually require cameras in bedrooms or Big Brother in the Chevy backseat.

If marriage must be desexualized, neutered, then it sounds much more like “reciprocal beneficiaries,” the legal term pioneered in Hawaii law for recognizing caregiving relationships between two people who could not marry. Legal recognition of caregivers is probably overdue, but it isn’t the same as marriage, legally or (even if the law changed) culturally.

Figuring out how to shelter and support caregivers in a fragmented, isolated, and aging country is a hugely important task. But so is figuring out how to manage sexuality, especially heterosexuality: If marriage helps set the rules for sex, then we have to discern whether those rules are the same for straight couples as for gay ones.

I think it’s obvious that the rules for straight sex need to be stricter, both because of the potential for the unintended creation of a child and because of the cultural and biological power of differences between men and women. Berry may disagree with me, but I wish he had explained why.

Eve Tushnet
Washington, D.C.

Wendell Berry’s thought about the created natural and human order cries out to be completed by the classical natural law tradition: Only this resource could provide him with a legal philosophy consistent with his writings on moral, cultural, and economic questions.

In legal and political matters, he seems to accept the abstract individualism whose ruinous effects he searchingly unmasks in these other domains. However the apparent inconsistency is to be accounted for, it dramatically illustrates the point at which we have arrived.

The claim that marriage has a natural meaning with regulative implications is a natural law claim. That claim, inherited from the common law tradition, has been embedded from the beginning in America’s marriage law. A certain moral understanding of marriage’s ends and responsibilities has been operative, in attenuated form, even in divorce law (insofar as infidelity, for example, is relevant to culpability).

But we can see how, over time, the demand that laws look upon citizens as abstract, rights-bearing, contractually relating individuals has progressively shorn the natural moral content understood to be constitutive of marriage of any legal standing. The legalization of gay marriage will bring that process to its inevitable conclusion.

The result will be something like what Berry seems to call for: The legal status of marriage will be that of a property-regulating contract between individuals, and any notion of a natural (and of course sacramental) meaning of marriage will be a private option, falling under our constitutionally guaranteed right to define the meaning of existence and the universe.

Eventually “marriage” will have to be eliminated as a legal category entirely, because there will be no way to define it. Is there any way to prevent the demand for equal benefits from ending in the elimination of any “spousal” benefits? I can claim anyone as my partner”and who is to say I must limit myself to one?

In the end, either the government will be required to define the parameters of marriage, or it will cease to exist as a legal status. Since corporations have a large stake in the outcome, they will likely manage to gain as much from this final redefinition of the household as they have from earlier ones”both from the contraction of benefits and from the exponentially accelerated technologization of reproduction.

It is difficult to imagine Berry warmly embracing these foreseeable consequences of his position.

Mark Shiffman
Villanova University
Villanova, Pennsylvania

Overturning deeply entrenched beliefs hurts, but still I’ve Christopher Roberts and Gerald Russello (“Leaving Brooklyn,” April) to thank for the startling discovery that suburbia (and not just any suburb, but Westchester!) kept its head more than has Wendell Berry. Was Peter Lawler right the whole time?

While not quite a disciple, I’ve long thought Berry one of the sages, and thus his marriage reversal, as reported by Roberts, is sobering, even bewildering, especially the “abstraction” of accepting “sexually generic marriages.” Throughout his oeuvre , Berry treated abstraction as tantamount to violence: Abstract love of country harms the countryside, GDP forgets health, and so on.

In fact, the sanity of his earlier work entailed a suspicion of vague movements or utopias beyond the human scale, and so too his insistence that college students enamored with him not become farmers since their ineptitude would harm the land.

But now, according to Roberts, Berry has decided that “sexual difference is optional,” as is “any connection with mating and biology.” If this is so, the entirethrust of Berry’s previous articulation of “marriage as fertility bound in fidelity and community” becomes nonsense. His earlier reservations about birth control, for instance, centered on the divorce of sexuality from fertility, but this is now brushed aside with the abstractions of libertarianism and crudities about tattoos on the “rumps of lawfully copulating parties”? If even Berry forgets the Great Economy, no one will remember it.

Unless it’s Gerald Russello’s new neighbors, for in leaving Brooklyn for Westchester he finds an “entire town [which] speaks a cultural and religious language,” even if those sensible people flooding churches and the Knights of Columbus are suburbanites rather than Mad Farmers.

Well, I ought not be surprised since the good is known by “plain persons” in their everyday practices of real life and work. Although I did think that Berry, like Alasdair MacIntyre, knew this, it turns out that those who accept the “demon automobile” and forgo “artisanal pickles” to raise their families might know it best.

R. J. Snell
Eastern University
Havertown, Pennsylvania

Christopher C. Roberts replies:

Given how difficult it is to discuss gay marriage in America today, it is a balm to receive letters like these. I thank the writers for their wisdom and solidarity.

I second Eve Tushnet’s distinction between “how to shelter and support caregivers” and “how to manage sexuality.” Normally I would also expect Berry to appreciate how those two undertakings are related but distinct. But Tushnet, unlike Berry, is encouraging us to imagine how those two undertakings should be legally distinct. I can’t explain Berry’s uncharacteristic failure of imagination on this point.

Mark Shiffman wisely explains the consequences of Berry’s position on marriage. Sharing Shiffman’s glimpse of the future heightens my surprise at what Berry has done. It’s just so odd, so uncharacteristic of this lifelong farmer and contrarian to fold in the face of cultural pressure. I would have hoped Berry would be more constructively stubborn than he has been in this case.

R. J. Snell’s point about abstraction in Berry’s prior work helpfully enables us to see that even if Berry had never written a word about marriage, the underlying rationale of his oeuvrewould still suggest opposition to gay marriage. It makes no sense to be committed to husbandry and fertility on the land and in the economy and then forget those things with respect to the body and coupling.

Finally, readers might be interested to know that since First Things published my essay, a video of Berry’s original speech has been posted online and a version of it has been published in the Christian Century . I wrote about these developments on March 28 for the “First Thoughts” blog, where you can also find links to the video and the article.

Sovereign Servant

Conspicuous by its absence in Robert P. George’s article is any mention of the power of the criminal trial jury (“Ruling to Serve,” April). This power is sometimes negatively referred to by certain law school faculty members as “jury nullification.” If a jury believes a law to be unjust, it does not have to apply it. Thomas Jefferson and Alexander Hamilton, who tended to be political opposites on most issues, both recognized this power of the jury.

Yet most citizens are not aware that they have this power when they are on a jury. This is because virtually all criminal trial court judges in both the state and federal jurisdictions refuse to inform juries of this power or to allow defense attorneys to inform them. One excellent, scholarly text that is very informative on this issue is “Jury Nullification: The Evolution of a Doctrine” by Texas attorney Clay S. Conrad. It is a Cato Institute publication. I believe that if every citizen knew of this power handed down to us by our founders, our liberties would be much more secure.

W. David Herbert
Billings, Montana

In “Ruling to Serve,” my good friend and colleague Robert George has written a compelling essay that seeks to unite Catholic social teaching with American constitutional principles. Despite its insights, it is oblivious to social reality in today’s America.

George provides a faithful summary of Catholic social teaching on the principles of subsidiarity and the common good. Yet he tends to conflate the two principles. As he advances it, the concept of the common good seems not to have any substantive content of its own. And, revealingly, there is no mention of solidarity, a third bedrock tenet of the Church’s social teaching.

I do not wish to underplay the importance of subsidiarity, and I have no quarrel with George’s propositions on the subject. But one may disagree with his claim that voluntary associations “perform better than government ever conceivably could the most essential functions of health, education, and welfare.” As for education, there is much here with which to agree, especially as it affects civic virtue and the political culture. One might even say that the state infringes on subsidiarity when it privileges public over private schools or ignores the legitimate rights of parents over the religious and social nurturing of their children.

Welfare and health care, however, are a different kettle of fish. Forty million Americans live in poverty; 45 million have no health insurance; millions more are unemployed; and millions have no ready access to needed shelter or food. It is here that the argument in “Ruling” shifts to the United States Constitution with its elevation of “structural constraints on the powers of the central government.” These constraints include traditional curbs on government such as separation of powers, checks and balances, and the division of power between state and nation, all presumably in support of the Catholic principle of subsidiarity.

But in the case of welfare and health care, what entity apart from the national government commands the vast resources necessary to meet the needs of all people who live, work, or want to work in America?

Enter the Affordable Care Act: George claims that it is a violation of the constitutional principle of limited government and a fortiorithe Catholic principle of subsidiarity. This is a cramped reading of the Constitution and a mistaken view of Catholic social teaching.

The Constitution is a document that empowers as well as limits. The framers conferred upon Congress the authority to regulate interstate commerce and to levy taxes for the general welfare. These powers, enriched and fortified by the “necessary and proper” clause, surely include the right to require most if not all Americans to take out health insurance as a means of making health care affordable for everyone.

Given the law’s reach into the depths of the national economy, the mandate is so clearly a regulation of interstate commerce that relatively few legal scholars oppose the decree on constitutional grounds. To maintain otherwise would render the central government powerless in the face of pressing human need. Was this what the Founding Fathers intended?

Catholic social teaching imposes a moral responsibility on the state to meet human needs that local governments or voluntary organizations cannot by themselves deliver. Informed by belief in human dignity and solidarity, the spirit of this teaching is avidly communitarian; it runs against the grain of an unregulated free-market liberalism that dominates the thinking of many right-wing groups.

Let us not forget the words of Pope John XXIII, who declared that “all people have a right to life, food, clothing, shelter, rest, medical care, education, and employment.” I ask again, who but the national government can provide for the needs of all people? In their famous 1986 pastoral letter “Economic Justice for All,” the bishops of the United States came close to asking the same question. Who else but the national government can get rid of those “concentrations of privilege” in our society responsible for the social ills that defy the principles of both dignity and solidarity?

Finally, I find it surprising that some of my co-religionists look to the U.S. Constitution for guidance in getting Americans out of poverty rather than to the welfare constitutionalism of a country such as Germany. Germany’s Sozialstaat (social state) is squarely rooted in Catholic principles of dignity and solidarity. In fact, the concept of the “social state,” like the provisions on marriage and the family, was put into the Basic Law largely on the insistence of Catholic delegates to the constituent assembly of 1948“1949. Their notion of the social welfare state also included redistributive tax policies in support of the subsistence minimum that Germany’s highest court has time and again declared to be required by the concept of human dignity.

American politicians on the right are fond of disparaging the European welfare state, especially its redistribution”another bedrock principle of Catholic social teaching”but in Germany it works to the benefit of the overwhelming majority of its citizens and without undercutting the principle of subsidiarity.

Donald P. Kommers
University of Notre Dame
South Bend, Indiana

In his thought-provoking article “Ruling to Serve,” Robert George writes: “The Constitution of the United States is famous for its ‘Madisonian system’ of structural constraints on powers of the central government.” In a recent television interview, Supreme Court Justice Antonin Scalia attributed the strengths and endurance of the Constitution to divine providence: Somehow God had arranged in the course of human history to confer on us a document to provide us with proper governmental guidance.

The nineteenth-century Servant of God, Paulist founder Fr. Isaac Hecker, said essentially the same thing when he attributed America and her institutions to the providence of God. In his pre-conversion sojourn with the American Transcendentalists, the young New Yorker was convinced that through the Holy Spirit the sacred humanity of Jesus was making the world more human. The Incarnation, continued and expanded through the work of the Church, would especially touch America, making her a light to the nations.

The Magna Carta, written by Stephen Langton, Archbishop of Canterbury, is one example of such providence. In requiring the monarch to consult with his council and preventing him from being above the law, it served as the root source of the Constitution’s inclusion of subsidiarity”separation of powers and checks and balances. The Church would then be a true “mediating institution,” helping to create a balanced infrastructure for government while at the same time transmitting virtue, thus producing a healthy political culture.

Rev. D. Bruce Nieli, C.S.P.
Memphis, Tennessee

Robert P. George replies:

W. David Herbert is right to suggest that the power of nullification gives criminal trial juries a certain kind of check on governmental power. He is also correct in noting that trial judges almost never inform (or permit defense attorneys to inform) jurors of their possession of the power. I must, however, confess that I myself am of two minds about jury nullification. The power can, to be sure, be used to prevent injustices in certain cases. At the same time, it can be abused to displace legitimate democratic decision making, and it carries with it the risk of the uneven application of criminal laws.

I am grateful to Fr. D. Bruce Nieli for his illuminating comments about Fr. Isaac Hecker’s belief in the providential origins of our nation and its institutions. This is a belief shared by Latter-day Saints and by many Evangelicals. It seems to have been the belief of George Washington and a number of other American founders. Lincoln’s reference to “this almost chosen people” suggests that it was, perhaps, his belief as well.

Donald Kommers is indeed a friend, and I’m grateful for his comments, too. I’m glad he found my essay “compelling” and that it “provides a faithful summary of Catholic social teaching on the principles of subsidiarity and the common good.” He and I disagree, however, about certain aspects of Catholic social teaching and about some important issues in American constitutional interpretation.

His criticism of my essay brings First Things readers into a conversation that has been going on for some time among Kommers, Mary Ann Glendon, and me. Glendon and I have expressed puzzlement about how he can square his fervent support for Barack Obama and the Democratic party with his belief in the sanctity of human life and the importance of marriage as the union of husband and wife. In our view, these are foundational, non-negotiable moral principles from which the Democrats have gone profoundly astray.

In the area of Catholic social thought, Kommers faults me for focusing exclusively on subsidiarity and downplaying the importance of solidarity. It is true that a general treatise on Catholic social thought would require an extensive treatment of solidarity (and in that connection, of abortion as well).

But my essay was not such a treatise. It was, rather, a treatment of the structural limits on governmental power and the importance of a healthy political culture in preventing government from violating the dignity and rights of persons, and usurping the authority of the key mediating institutions of civil society, beginning with the marriage-based family and churches and other communities of religious faith.

I would add that if I were to offer a treatment of the concept of solidarity, I would note that solidarity is not merely about what the state should do. It concerns our obligations to each other, whether those are to be met by (1) individual initiative, (2) voluntary institutions of various types, or (3) the apparatus of the state. When, as Kommers says, millions live in poverty, millions lack health insurance coverage, and millions are unemployed, our obligations of solidarity are engaged.

But whether centrally run government programs are the best way of meeting human needs in these and other areas is a question to be debated, especially in view of the fact, admitted to recently by no less orthodox a liberal than New York Times columnist Nicholas Kristof, that our experience in this country with the old-time religion of liberal statism is that it has often worsened the plight of the poor.

Kommers disagrees with my view that the individual mandate of the Affordable Care Act exceeds the powers of the national government to regulate commerce between the states. He accuses me of offering a “cramped reading” of the Constitution. His evidence? Well, he doesn’t have much. Words like “surely” and “clearly” will not substitute for evidence. They merely add emphasis to assertions”like the assertion that the commerce and taxing powers, “enriched and fortified by the ‘necessary and proper’ clause,” include the right to require people to enter into commerce by purchasing health insurance. Well, that is the very point in issue, is it not?

And my old friend won’t be surprised that I’m not impressed that “relatively few legal scholars” oppose the mandate on constitutional grounds. Having spent a bit of time in universities, including Harvard Law School, where I am on leave this year, I am aware that most professors, including most legal scholars, are liberals and Democrats of the strict observance. That old-time religion of liberal statism is their religion. They believe in it fervently. I don’t.

Nor, on the commerce power, did five of the nine Supreme Court justices join the church choir. Things began going very badly for the Solicitor General, who was charged to defend the health care law, from Justice Kennedy’s opening question onward. The problem was straightforward: He could not give a coherent account of the limits of federal power under the Constitution that was consistent with his defense of the law.

Of course, in the end he got lucky that Chief Justice Roberts adopted the idiosyncratic view, vehemently rejected by the Obama administration itself when it was pushing the law through Congress, that the penalty enforcing the mandate is a tax that can be justified as an exercise of the national government’s taxing power. The constitutional victory came at the price of the court’s declaration that the administration had, in effect, misrepresented to the American people the nature of a key component of the law.

There are various other points on which Kommers and I disagree. Perhaps the most important one is this: The Constitution established the national government as a government of delegated and enumerated (and therefore limited) powers, distinguishable from the states as governments of general jurisdiction enjoying plenary (“police”) powers to protect public health, safety, and morals, and to advance the common good.

If, in the view of some citizens or officials, a need has arisen that the national government should meet but is not constitutionally empowered to meet, the Constitution provides mechanisms for its own amendment so that “we the people” can confer upon the government a newly delegated power. Kommers’ apparent desire for the national government simply to short-circuit the amendment process and claim a new power whenever the president and Congress decide it would be a good idea is, to my mind, fundamentally anti-constitutional.

Kommers seems to believe that behind all our “social ills that defy the principles of both dignity and solidarity” are “concentrations of privilege” that it is the task of the national government to “get rid of.” Let me say a couple of things about that. First, if in fact abortion is, as Kommers and I agree it is, the unjust killing of innocent human beings, it is as fundamental an assault on dignity and solidarity as there can be. And the appalling reality of more than a million abortions a year is the greatest catastrophe for human dignity and solidarity we face in our society. Yet the politicians whom Kommers supports work ceaselessly to protect and expand the abortion license.

Second, even if we set abortion aside, is it plausible to think that the collapse of family structure in urban and rural America”which has had precisely the devastating consequences for the poorest and most vulnerable members of our society that Daniel Patrick Moynihan predicted it would have in his 1965 report”is the result of “concentrations of privilege”? What exactly happened beginning in the mid-1960s? Did we suddenly get concentrations of privilege that we had never had before, leading to despair, delinquency, drug abuse, violence, crime, and incarceration, first in urban and then in rural communities? Or was the unprecedented rise in out-of-wedlock childbearing and fatherlessness caused by something else, something cultural?

I would say to my old friend that the ideology that caused things to unravel with such horrific consequences for the poor was not the “free-market liberalism” embraced by conservatives but rather the expressive individualism embraced by me-generation liberals and disseminated by the intellectual class and the media of popular culture. It is all too easy for those of us who are professors to shift the blame to Wall Street or Main Street. Maybe we should have a look at what was coming out of Harvard, Princeton, and even Notre Dame.

For the record, I did not argue for, and have in fact frequently argued against, “unregulated free-market liberalism.” Such a view is incompatible with Catholic social teaching. Support for it would be nearly as morally disqualifying of a political party as support for excluding an entire class of human beings from the fundamental protection of the laws and exposing them to the risk of killing.

Articles by Various

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