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Marshall, Marbury, and Judical Supremacy

Robert Lowry Clinton’s thesis on “How the Court Became Supreme” (January) is intriguing, but most certainly wrong.

According to Professor Clinton, the Supreme Court has gone astray because it has misapplied Marbury v. Madison (1803), which only supports judicial “disregard...  [of] existing laws in the decisions of particular controversies, provided that the constitutional and statutory provisions involved are, like those in Article III and the Judiciary Act, addressed to the Court itself.”

Chief Justice John Marshall’s opinion in Marbury cannot be confined to cases involving only constitutional “commands... directed at the Court itself and not to another branch of government.” Sixteen years after this seminal opinion, the Chief Justice addressed the question whether Congress has the “power to incorporate a bank.” In McCulloch v. Maryland, the Court ruled that Congress had such power, but only because it met Marshall’s carefully crafted constitutional formula applying judicial review to constitutional directives aimed at the legislative branch:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would be the painful duty of this tribunal, should a case requiring a decision come before it, to say that such an act was not the law of the land.

Prof. Clinton’s view has no support in the Marbury opinion either. While that case did address a constitutional question concerning court jurisdiction, not once did Chief Justice Marshall say that the Court’s power to “say what the law is” was confined to constitutional directives addressed only to the courts. To the contrary, the Chief Justice enlisted support for judicial review by quoting from Article I, Section 9, the prohibition against levying a “tax or duty... on articles exported from any state,” a provision that can only apply to Congress, which alone has the power to tax.

Thus, Prof. Clinton cannot enlist the venerable Chief Justice in his cause. Nor are his views supported by the relevant constitutional text. As he concedes, the doctrine of judicial review is found in Article III, Section 2, which extends “judicial power... to all cases... arising under this Constitution” (emphasis added). Yet, Professor Clinton amends this text with his assertion that the Court has jurisdiction only over some cases arising under the Constitution, namely, those arising under “Article III, Amendments 4-8 of the Bill of Rights, and certain provisions of Article I, Section 9.”

These failings do not mean, however, that the prevailing doctrine of judicial supremacy is legitimate. But one must offer reasons other than the ones provided by Prof. Clinton if one is to prove that today’s Supreme Court does not have “the support of the great Chief Justice Marshall for its assertion of power” as the “final interpreter” of the Constitution.

First, the Chief Justice’s opinion in Marbury contains three separate and distinct statements that the written Constitution governs the courts, not the other way around. To claim otherwise, as the 1958 Supreme Court did in Cooper v. Aaron and the 1997 Court did in City of Boerne v. Flores, disregards Marshall’s statements that the written Constitution is “a rule for the government of courts... and that courts, as well as other departments, are bound by that instrument.”

Second, the Chief Justice’s understanding of judicial power “to say what the law is” is based upon the presupposition that the written Constitution is law, not court opinions. That is why the Chief Justice sandwiched his remarks about judicial power in Marbury between paragraphs emphasizing that the very essence of a written constitution is that it is law. And it is the duty of the courts to “say” what that law “is,” not “make” the law in the name of the Constitution, as is the habit of modern courts.

Given this understanding of law, there is no room for courts to elevate their opinions above the constitutional text. And that brings me to the question that Professor Clinton asked in his article: “How did the Court become supreme?” It did so by adopting the late nineteenth-century views of Oliver Wendell Holmes, Jr. and his Harvard colleague, John Chipman Gray, who claimed that law is what the courts say it is.

But that was not so in Chief Justice Marshall’s day, a time dominated by Sir William Blackstone’s view that a court opinion was not “law,” but only “evidence” of law, “since it sometimes may happen that the judge may mistake the law.” Because Chief Justice Marshall constructed the entire edifice of judicial review on this foundation, there is no legitimate place for the doctrine of judicial supremacy in American constitutional law. It is entirely the invention of law professors, first imposed upon students at Harvard and now upon the American people.

Herbert W. Titus
Chesapeake, VA

Bravo to First Things for publishing Robert Lowry Clinton’s “How the Court Became Supreme.” It is the most succinct statement he has made yet in his project (begun in his admirable 1989 book Marbury v. Madison and Judicial Review ) of recapturing the very limited character of the Supreme Court’s authority as that was understood by the framers of the Constitution and by the early American jurists called upon to interpret it. No doubt many who have been educated in judicial-supremacist orthodoxy will react with consternation at his arguments and his evidence. But here is more ammunition for his side of the historical debate, in which I heartily enlist:

James Madison, 1799 ( Report to the Virginia General Assembly ), replying to those who claimed that only the courts could examine the constitutionality of the Alien and Sedition Acts: “There may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department.... The decisions of the other departments not carried by the forms of the Constitution before the judiciary must be equally authoritative and final with decisions of that department.”

John Marshall, 1819 ( Cohens v. Virginia ), conceding that some flat prohibitions on legislative power––like the ban on granting titles of nobility––may not be enforceable by courts: Article III “does not extend the judicial power to every violation of the Constitution which may possibly take place, but to ‘a case in law or equity’ in which a right under such law is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article.”

Marshall again, 1824 ( Gibbons v. Ogden ), speaking of Congress’ power over commerce: “The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse. They are the restraints on which the people must often rely solely, in all representative governments.”

Joseph Story, 1833 ( Commentaries on the Constitution ), addressing the question whether a “final interpreter” exists under the Constitution: “In measures exclusively of a political, legislative, or executive character, it is plain, that as the supreme authority, as to these questions, belongs to the legislative and executive departments, they cannot be reexamined elsewhere.... The remedy... in such cases is solely by an appeal to the people at the elections; or by the salutary power of amendment, provided by the Constitution itself.”

In all the great debates of the first generation to live under the Constitution, what is notable is the paucity of references to the judiciary having any proper role in deciding most constitutional questions. There was virtual silence on that subject in the Bank controversy, in the newspaper war over Washington’s Neutrality Proclamation, even in the debates over the amendments that became the Bill of Rights. When what we now call “judicial review” was mentioned by some participant in a controversy, the courts’ potential involvement was more often than not roundly repudiated by leading framers like Madison, as in the executive removal power debate (mentioned by Clinton) or in the controversy over the Alien and Sedition Acts and the Virginia and Kentucky Resolutions (see the Report cited above).

It would do the republic a world of good if law schools were to restore such lost history to the center of legal education––beginning perhaps with the unexpurgated opinions of Chief Justice Marshall and the Commentaries of Justice Story. In a world in which Alan Dershowitz holds the “Felix Frankfurter” chair at Harvard, I’m not holding my breath. But a wider audience for Professor Clinton’s work of historical and theoretical reconstruction can only help.

Matthew J. Franck
Department of Political Science
Radford University
Radford, VA

Robert L. Clinton replies:

I would like to thank Herbert W. Titus for the careful attention he has paid to my article on judicial supremacy. While I disagree with Mr. Titus’ interpretation of Marbury v. Madison, it is fair to say that he has identified the most vulnerable points in my argument. Mr. Titus believes that my thesis on how the Court became supreme is inaccurate because John Marshall’s Marbury opinion “cannot be confined to cases involving only constitutional commands directed at the Court itself.”

Mr. Titus’ argument is based largely on three observations: 1) Article III, Section 2 extends judicial power to all cases arising under the Constitution, and my thesis allegedly “amends” this provision by allowing jurisdiction in only some cases. 2) Marshall, in Marbury, did not explicitly confine the Court’s holding to constitutional directives addressed to the courts, and he suggested in one of his examples supporting judicial review that the Court might someday invalidate an export tax, which violates a prohibition of Article I, Section 9 seemingly addressed to Congress. 3) In McCulloch v. Maryland (1819), Marshall suggested that the Court might be forced in the future to disregard congressional acts either prohibited by the Constitution or adopted in pursuit of ends “not entrusted to the government.”

1) I do not think that I have amended Article III. In Cohens v. Virginia (1821), Marshall stated that Article III federal court jurisdiction rests on either a) the character of the parties, or b) the nature of the case. The kind of jurisdiction Mr. Titus refers to is the second of these types, and is normally described as “subject-matter jurisdiction.” Technically, judicial review arises from Article III only by inference in the following way: Article III extends the subject-matter jurisdiction of the Court to cases arising under the Constitution, laws, and treaties of the United States. Article VI (the national supremacy article) declares the Constitution, congressional laws “pursuant” to the Constitution, and federal treaties to be the “supreme law of the land” which must be enforced in preference to any contrary state law or policy. This means that, whenever the Court is forced to choose between incompatible state and national laws in order to decide a case, it must first determine whether the national law is “pursuant” to the Constitution (i.e., is “constitutional”) before it can decide the fate of the state law. If the Court could not determine the constitutionality of federal law in such a case, it would be without power to overturn a state court decision upholding a state law in the face of an incompatible national law. Carried to the limit, this means that the Court would have no power to reverse a state court decision invalidating a congressional act!

This reading of the Constitution, which appears to authorize a limited form of judicial review in a specific type of case, was explicitly confirmed by Congress in Section 25 of the Judiciary Act of 1789. In that Act, the Court was authorized to reverse or affirm any decision of a state’s highest court in which the constitutionality of a national law was questioned. None of this has anything to do with Marbury ”a case in which the plaintiff’s plea of jurisdiction rested not on the subject matter of the case, but on the character of the parties. Mr. Titus writes as if, in Marshall’s mind, Article III’s grant of federal subject“matter jurisdiction carries with it an implied authorization to invalidate any congressional law that happens to come before the Court even in cases arising on other jurisdictional grounds. It is Mr. Titus’ reading of Article III that “amends” the Constitution by collapsing the concepts of jurisdiction and judicial review, which are not the same thing. If they were, there could not, for example, be a doctrine of “political questions.” Under this doctrine jurisdiction is presupposed, and the Court nonetheless asks whether or not it is appropriate to call into question an arguably invalid national law.

2) It is true that Marshall did not, in his Marbury opinion, explicitly confine the Court’s power to “say what the law is” only to constitutional directives aimed at the Court. It is also true that Marshall’s export tax example does not fit neatly into my reading of other portions of that opinion. On the other hand, the responsibility of confining earlier holdings rests largely with courts that are subsequently bound to apply such holdings in actual cases arising at later times. We cannot know for sure whether the Marshall Court would have invalidated a congressional export tax had the opportunity arisen. To my knowledge, Congress never passed such a tax during Marshall’s tenure on the Court.

We do know, however, that the Chief Justice’s remark on export taxes was pure obiter dictum and would not have been regarded even by Marshall himself as controlling in any subsequent case that might have come before his Court. Marshall himself provided the rule in Cohens, while disavowing some of the language in his earlier Marbury opinion: “It is a maxim not to be disregarded that general expressions in every opinion are to be taken in connection with the case in which these expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent; other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.”

Since export taxes were not before the Court in Marbury, and certainly were not “completely investigated,” I suspect that Marshall simply made a mistake here. He might have retracted the remark had the opportunity presented itself. Not only does the remark not fit neatly in my own reading of Marbury, it does not fit neatly with the other examples Marshall supplies in the same passage: the treason clause, which is explicitly addressed to the Court; also bills of attainder and ex post facto laws, which are implicitly addressed to the Court in that they arguably constitute legislative usurpations of the judicial function. Even if one accepts the view that Article I, Section 9 authorizes the Court to invalidate national export taxes, this would mean only that the Court is entitled to disregard laws whenever such laws contradict constitutional provisions addressed to the courts or clearly violate explicit constitutional prohibitions. This is still a far cry from modern judicial review, in which the Court invalidates national law any time it thinks that Congress has overstepped its legitimate authority.

3) Marshall’s suggestion in McCulloch that the Court might someday be forced to invalidate congressional acts either prohibited or ultra vires was––like the remark about export taxes in Marbury ––pure dictum, and so the Cohens reservations raised above apply here as well. As to the meaning of “ends not entrusted to the government,” Marshall doesn’t give a clue in McCulloch. He does suggest one later in his answer to a pseudonymous critic’s charge that McCulloch might be read to justify congressional prohibition of a state tax on land as conducive to the collection of federal taxes. Without going so far as to say whether the Court would actually invalidate such a law, Marshall does say that “such an act would be an attempt on the part of Congress, under the pretext of executing its powers, to pass laws for the accomplishment of objects not entrusted to the government.”

The context of the remark makes it clear that Marshall believed the pretextual act to be unconstitutional not because it is an inappropriate means of accomplishing a legitimate governmental objective (the point at issue in McCulloch ), but because the purpose of the act was to destroy the state’s power of taxation––an “end” so far beyond congressional authority as to pose a “clear case” violation of the Constitution. Like the Section 9 examples given in Marbury, this example––at least to Marshall’s mind––seems to involve a constitutional violation so blatant that, were the Court to lend support to it while performing regular judicial duties, it would be exposed to the charge of abetting the congressional violation.

All this said, it should be remembered that Marshall, in Marbury, drew a sharp distinction between a law’s being invalid and a court’s having the power to declare it to be so. This implies a recognition that Congress may enact “unconstitutional” laws that are nonetheless beyond the reach of the Court. Let it also be remembered that when Marshall spoke of the constitutional infirmity of pretextual acts in McCulloch, he qualified his language carefully, stating that the “painful duty” of the Court to disregard such an act was conditioned upon the presence of a case “requiring a decision.”

Everything depends on what “requiring a decision” means. As I explained in “How the Court Became Supreme,” this condition is fully met only when a constitutional provision addressed to the Court is involved. The Court would then be violating the Constitution directly by enforcing the unconstitutional act. Whether Marshall would have thought the condition met to a lesser degree when a clear constitutional prohibition is violated (as in the export tax clause), or when a graphic constitutional violation of some other kind is perpetrated (as in a congressional attempt to destroy the states), are matters on which reasonable persons may disagree.

As to Mr. Titus’ other observations, I have little––if any––disagreement. There is no doubt that the Cooper Court in 1958 and the Boerne Court in 1997 grossly abused Marbury by ignoring Marshall’s principle that the Constitution is law and thus governs the Court. It is also beyond doubt that, in the days of Marshall and Blackstone, court opinions were regarded not as law itself, but merely as evidence––or declarations––of law. The ascendancy of positivist jurisprudence a century later spelled doom for legal naturalism and the declaratory theory of law that was its complement, ushering in an age that would regard law as “whatever the courts say it is.”

That brings me to a final rhetorical question: Can it be merely coincidental that the Court began to view Marbury as the fountainhead of judicial review not in the time of Marshall or Roger Taney, but exactly at the time at which legal positivism came into its own in the United States? Encrusted legal doctrine is a mighty barrier to legal change. Marbury v. Madison, as presently regarded by most in America’s legal establishment, is the precedential rock upon which modern judicial supremacy stands. Yet the Marbury of contemporary constitutional law––in which the case is regarded as an activist decision supporting constitutional judicial hegemony––is not the Marbury of the Marshall Court. If we do not recognize this and restore the historical Marbury before it becomes too late to remember it, I fear that we may be saddled with judicial supremacy for a very long time.

In that regard, I thank Matthew J. Franck for his generous comments and his useful citations.

Psychology and Christianity

I approached William K. Kilpatrick’s “Faith & Therapy” (February) with anticipation of a scholarly attempt at dealing with a difficult issue but left with a sense of disappointment that his understanding of psychodynamic psychotherapy is so limited and that he chose to make psychology per se the rival faith or whipping boy for the problems that plague the Christian Church in modern times.

His attack on the amorphous “therapeutic culture” prevents him from addressing the multitude of forces in today’s world such as “postmodernism” and its reaction to the rationality of the scientific method, the politically correct agenda of minority subgroups, and the flood of violent images that pour out from the movies, television, and computer games. In his wholesale criticism, he may be “throwing out the baby with the bathwater.” In doing so, he does great disservice to those who desperately need psychiatric intervention and treatment.

Mr. Kilpatrick mentions the dangers of mixing psychology with religious faith. I agree with him completely on this issue. At the same time, I would not mix a scientific understanding of the origins of the universe or a research protocol for the treatment of astrocytoma with religious faith. God is, indeed, transcendent and wholly Other and has given us the intelligence and ability to apprehend his creation while maintaining the capacity to view that creation with awe and wonder.

After thirty-one years of dealing with this issue, I am convinced that there is no serious conflict between good theology, good science, and good psychology. Contrary to Mr. Kilpatrick’s assertion that “the therapeutic culture has no God,” I assert that God is with me when I struggle with the couple whose son has committed suicide, with the woman who insists that her father is calling her home to be with him in death, and with the man who stays in his marriage despite severe emotional abuse and neglect at the hands of his wife who refuses to acknowledge her role in the relationship. I do not, however, reject sound psychotherapeutic principles or pharmacologic interventions in dealing with those suffering individuals.

Robert F. White, M.D., FAPA
Houston, TX

As much as I enjoyed William K. Kilpatrick’s article, I must admit to being somewhat disconcerted at several comments he made concerning Satanic Ritual Abuse (SRA), or, as he referred to it in his article, Ritual Satanic Child Abuse.

My family has been deeply involved with several survivors of SRA. As bizarre and incredible as many of the stories sound, much of the information has been verified by independent sources, including local law enforcement. I know, for example, of a police officer who has been able to officially verify many such claims. He is currently working with local and federal law enforcement across the United States; in fact, he has helped the Federal Bureau of Investigation prosecute––and win––several cases of Satanic Ritual Abuse.

That being said, Mr. Kilpatrick is technically correct when he states that the FBI “reports... no evidence of a single case of ritual satanic child abuse in the United States,” because FBI agents (and other law enforcement officials) cannot prosecute a defendant and win if they approach the case with any type of religious terminology. If they would enter a courtroom and cite Satan as a contributor to the crime, the judge would promptly dismiss the case. Because of this, prosecutors must present the nature of the crime in a form that deletes any religious overtones. As a result, the FBI does not have any official record of SRA crimes––all of them are researched as such, but presented as something more common, such as child abuse. Once the cases are presented in this format, they can be––and frequently are––won.

Anthony Weber
Traverse City, MI

William K. Kilpatrick replies:

I didn’t mean to deny the existence of satanic ritual abuse, or to suggest that FBI statistics are the last word on such matters. My point, which perhaps could have been made more clearly, is that there is little evidence of any abuse––satanic or otherwise––in the high-profile day care cases of the 1980s. Dorothy Rabinowitz has convincingly presented the case against conviction in a series of articles for the Wall Street Journa.

Unlike Dr. White, I have no problem with mixing a scientific understanding of the universe with religious faith. I think they mix well. Like him, I believe that there is no conflict between good psychology and good theology––a point that I elaborate on in my book Psychological Seduction. My criticisms are directed not so much against the practice of therapy as against the therapeutic Zeitgeist that permeates our culture (my original title, “Faith and the Therapeutic Culture,” was changed by the editors). Of course, as Dr. White points out, there are many other problems facing the Church (postmodernism, pop culture, etc.), but it seems to me that these forces share in the same relativist assumptions that underlie the therapeutic ethos.

Talking to Gen Xers

Pardon my obtuseness, but what’s the point of criticizing Generation Xers for being immoral or besotted by cynicism if, as a solution, you’re only going to provide them with more of the same? Born one year shy of the vogue age bracket known as Generation X, I read with interest Sarah E. Hinlicky’s views on getting the wayward Xers back into the fold (“Talking to Generation X,” February). Her solution was both shocking and tragic.

Here’s why. Because she is a believer, Ms. Hinlicky has beaten the odds of her age group. She believes in Christ, his Church, his word, and, subsequently, in “Absolute Truth.” Yet for all of her enlightenment, which I am sure is sincere, she concludes that a veritable wallowing in human depravity is the “one thing” to woo her people back. The hope of the Resurrection is mentioned only as if it were an afterthought or a last-ditch effort.

In her essay, Ms. Hinlicky writes: “Show us the women who wept and loved the Lord but couldn’t change his fate. Remind us that Peter, the rock of the Church, denied the Messiah three times. Tell us that Pilate washed his hands of the truth, something we are often tempted to do. Mostly, though, turn us towards God hanging on the Cross. That is what the world does to the holy.”

I strenuously disagree with such an approach. While I would be the first to advocate tact and sensitivity whenever sharing my faith with nonbelievers, I doubt this generation––which has been taught that “tolerance” is the highest virtue––needs my empathy. Already this age finds much security in the cliché: “I’m only human.” The problem is, they can’t find peace or joy in such bromides.

Like all other lost souls, Generation Xers are hungry for answers, indeed for absolutes (other than the absolute that “there are no absolutes”). Sinfulness is common, not inspiring, and commiseration is repellant to a man or woman of self“respect. Let’s face it; young people don’t need mere stories––their judgments are based on behavior. What they need is to experience Christians who practice what they preach, and who, shall I dare say it, are happy.

Ted Turner was once quoted as saying that “Christianity is for losers.” Hearing this, I immediately thought: “The poor man just doesn’t know the truth and doesn’t understand how noble, great, and indeed powerful life in Christ is.” Perhaps some well-intentioned Christian had tried to convert Mr. Turner by reminding him of how human it is to fail, to dishonor, to lie, to kill, to fear, indeed to be a loser. Obviously, such a method failed Mr. Turner. Will it work for others?

Martha L. Blandford
Ft. Thomas, KY

Sarah E. Hinlicky’s essay, “Talking to Generation X,” reminded me of an old story about a rabbi who stood up at a meeting and said, “I have an answer. Does anyone have a question?” The story is mildly amusing, but profoundly meaningful. The rabbi had an answer, but he could give it only to someone who was asking the question that it answered.

Now, if I could give advice to Generation X with any hope of it being accepted, I would say the following.

1) Ask the question, “How do I find purpose, and meaning, and hope in my life?” Don’t dismiss it out of hand, even though that would save you all the trouble of thinking. If you don’t like the swamp you are in, at least ask the question.

2) Don’t wait for someone to prove something to you before you accept any answer, because then you will wait forever. As Cardinal John Henry Newman wrote in his Grammar of Assent, “Life is not long enough for a religion of [logical] inferences; we shall never have done beginning if we determine to begin with proof.” No one who has reached the age of reason gets through a lifetime without making choices, some of them serious enough to shape our lives. We want true answers that correspond to reality and make it intelligible to us, but eventually we have to make up our minds. Even drifting through life without making them up is a kind of choice, but a perverted one.

3) Before dismissing all the answers that are on offer today, ask yourself, what are you offering to the world? If your answer is, “Nothing; the world can take care of itself,” then ask, what are you offering to yourself? If the answer is again, “Nothing, for I have been to college and have read Nietzsche and Heidegger,” reflect on what you are saying: that the highest achievement of human intelligence is to recognize that human intelligence has no intelligible object; all that we can understand is that ultimately there is nothing there to understand. If that is what you want, that is what you will get––a meaningless life in a meaningless world.

4) Or perhaps you will tell the world that what you offer to yourself, and to others who are willing to hear it, is personal autonomy: I am the author of my own intellectual and moral universe. But here you might reflect that one could get awfully lonely being the center of the universe. Living in a liberal paradise la Richard Rorty, where everyone does as he pleases on the sole condition of not preventing others from doing the same, becomes just as lonely. If Ms. Hinlicky had not warned us against it, I would be tempted to say that it is a pretty good description of Hell.

5) Finally, it is your life that is at issue, so do no favors to other persons. Do no favors to God, or the universe, or the human race. Do no favors to the Church, or the State, or your family. Do no favors to anyone. Just get a life and begin by admitting that you may need some help. You could do worse than to listen to Sarah Hinlicky.

Francis Canavan, S.J.
Fordham University
Bronx, NY

Sarah E. Hinlicky replies:

It would be tedious to explain at length how Ms. Blandford has misunderstood the intent of my article, especially her assumption that the Resurrection is merely an afterthought. But in brief I will cite Matthew 9:10-13:

And as he sat at dinner in the house, many tax collectors and sinners came and were sitting with him and his disciples. When the Pharisees saw this, they said to his disciples, “Why does your teacher eat with tax collectors and sinners?” But when he heard this, he said, “Those who are well have no need of a physician, but those who are sick. Go and learn what this means, ‘I desire mercy, not sacrifice.’ For I have come to call not the righteous but sinners.”

Offensive as it sounds, I think Ted Turner is right. His mistake is in assuming he’s not a loser himself.

Father Canavan raises some excellent questions that ought to get asked more often. He is right on target when he says that proof cannot be the sole precondition to assent, though I’m afraid it’s the very obsession with proof that keeps a good number of Gen Xers stuck in the mode of meaninglessness. I suspect that this is another value of telling the gospel as a story: there is a gut-level recognition that persuades on its own terms without getting bogged down in sophistry.

Sex and Integrated Bathrooms

In speaking of the impossibility of restraining eros by force, Daniel P. Moloney says, “Even conservative religious colleges with single“sex dormitories and rules about fraternization––Thomas Aquinas College in California, for example––cannot keep students from sleeping together” ( “Eroticism Unbound,” February ). The statement is of course true as far as it goes, the author’s more general point in this part of the article being that internal restraints are the only effective safeguards against immodesty, and that external restraints are necessary as conditions for the internal restraints. I would, however, like to correct a possible misunderstanding.

Some readers may interpret the sentence to imply that, despite the administration’s best efforts, Thomas Aquinas College has some kind of difficulty with sexual indiscretions among its students. It was precisely this reading, or rather, misreading, that caused a priest friend of mine to bring the article to my attention. The facts are otherwise. We did have one widely publicized case in 1997 in which we were forced to expel a young lady (the man in the case was not a student) for refusing to stop sleeping under the roof of her fiancé.

But sexual indiscretions are generally unheard of on our campus. Students come here well aware of the rules and agree to abide by them. Moreover, most are raised in good homes with a strong sense of modesty, so they begin with the appropriate interior restraints. It is of course true that our students have the effects of original sin, but we have always been blessed with extraordinarily pious and chaste students. I would not want anyone to think ill of them undeservedly.

R. Glen Coughlin
Thomas Aquinas College
Santa Paula, CA

I was both interested and somewhat amused by Daniel P. Moloney’s description of ” Eroticism Unbound ” at Yale. Here at Caltech, we too have co-ed bathrooms and showers, with two stalls apiece. A convention has developed that under normal circumstances, the door of the bathroom is left open. When one goes in the bathroom, one shuts the door behind him, and this is a signal to everyone else that the bathroom is occupied and off-limits. This convention is unnecessary with respect to the shower, because one can hear from the outside if anyone is in the shower. So here, at any rate, the result of co-ed bathrooms is that no more than one person is ever in the bathroom at the same time.

Whether or not this supports Mr. Moloney’s thesis, it does illustrate that modesty is perhaps not as dead as Wendy Shalit might think.

Roy Koczela
California Institute of Technology
Pasadena, CA

Daniel P. Moloney replies:

I thank R. Glen Coughlin for the care with which he read and understood the theme of my article. I used Thomas Aquinas College as an example of a school that has all the external supports for sexual modesty a co“ed college can have without being too burdensome. While I did not intend to imply that the culture of TAC is even close to being as eroticized as, say, Yale’s is, most graduates will affirm that not everyone there is as chaste as Dean Coughlin and I would like. I am sure Dean Coughlin surmises that creative students do find a way to have their sexual escapades, though only rarely with such “indiscretion” that it comes to his attention.

Roy Koczela and his Caltech fellows deserve credit for finding a hack to solve the problem of co-ed bathrooms. That they do find it a problem, even in southern California, supports Wendy Shalit’s thesis in A Return to Modesty that modesty is not dead but ignored and suppressed. It takes an ideological college administrator to put students in a situation where they would rather wait than use multi-person restrooms at their maximum occupancy

Reason, Abortion, and Stanley Fish

A number of readers of First Things have asked for more details about my exchange with Stanley Fish at the American Political Science Association convention (While We’re At It, February).

The meeting in which Professor Fish and I participated was concerned with whether moral truth can be attained by reason and whether deep differences of moral opinion can be resolved by rational argument. The chairman of the panel, Stephen Macedo, in summarizing Prof. Fish’s position, asserted that although Prof. Fish is a critic of liberal ideas about “public reason,” he shares most liberal policy prescriptions, including the “pro-choice” position on abortion. After Prof. Macedo’s summary, I offered remarks that included criticism of Prof. Fish for writing (in “Why We Can’t All Just Get Along,” First Things, February 1996) that “a pro-life advocate sees abortion as a sin against God who infuses life at the moment of conception; a pro-choice advocate sees abortion as a decision to be made in accordance with the best scientific opinion as to when the beginning of life...occurs.”

On the contrary, I contended, nothing would please pro-life advocates more than to have the issue of abortion resolved precisely in accordance with the best scientific evidence as to “when a new member of homo sapiens comes into existence as a self-integrating organism whose unity, distinctness, and identity remain intact as it develops without substantial change from its beginning through the various stages of its development and into adulthood.”

In response, Prof. Fish said that Prof. Macedo was simply mistaken: “I am not a supporter of abortion rights.” Turning to my criticism, he graciously conceded the point, as Father Neuhaus reported in the Public Square. Prof. Fish agreed that, contrary to what he had supposed a few years ago, it is the pro-life side that appeals to the scientific evidence, while supporters of abortion have “shifted tactics” in light of the evidence and now go “elsewhere in search of rhetorical weaponry.” As subsequent discussion made clear, none of this means that Prof. Fish has abandoned his skepticism regarding the truth-attaining power of reason or his doubts about the capacity of rational argument to resolve deep moral disagreements. Indeed, he was quite critical of my assertion that there are many open-minded people who are prepared to settle (and in many cases have settled) their minds on abortion and similar issues precisely on the basis of a rational assessment of the evidence.

He insisted that “there is no such thing as an open mind.” I don’t think he’s right about that, but I’m trying to remain open minded about it.

Robert P. George
Department of Politics
Princeton University
Princeton, NJ

What a World

Wheaton College Professor Alan Jacobs accuses World magazine of “six degrees of separation” in reporting on the evangelical humanitarian relief organization World Relief ( Correspondence, January ). He failed to acknowledge the wide gap between what World Relief’s Wheaton-based officials knew about their programs in Honduras and what our reporter was told by personnel in Honduras.

Mr. Jacobs accuses World of not paying attention to facts. To the contrary, we check our stories carefully, and consider it significant when a World Relief health officer says his programs involve “all forms of family planning”; that’s a common reply among overseas health officers with a neo-colonial view of population control in the developing world. And here’s one particularly salient fact: At the time of our story, World Relief received more than 60 percent of its funding from Washington agencies, while billing itself as “the church’s relief agency.”

Charitable organizations protest that such money comes with no strings attached––that should worry taxpayers––while ignoring their obligation as tax-exempt organizations to come clean, in both program and financial content, before private individual and church donors. Reporters have learned that it requires a pickaxe and miner’s lamp to breach the granite wall constructed between government-sponsored overseas relief/development work and the public that pays for it.

Washington’s global entitlement program is as yet untouched by welfare reform, and relief leaders know it. World Relief president Clive Calver, in a follow-up interview in World that Professor Jacobs apparently missed (World, September 19, 1998), acknowledged that his organization “lost its way.” “It became too good at refugee, relief, and development work and it lost its roots into the churches.” Mr. Calver admits what other organizations who promote themselves under Christian mission statements––and their apologists––miss. Even those who drink gingerly from the public trough are obliged to keep their noses clean.

Mindy Belz
International Editor, World
Asheville, NC

Alan Jacobs replies:

I was pleased to see Mindy Belz’s response to my letter because it perfectly exemplifies World ’s characteristic method, which might be called journalism by innuendo. To take but one example: We are given a partial-sentence quote from a World Relief health officer; we are told that the quote is “significant”; we are told that it is a “common reply” (though what it is a reply to we are not told); we are told that it exemplifies “a neo-colonial view of population control in the developing world.” It cannot be clear to anyone how one gets from the phrase “all forms of family planning” to an accusation of neo-colonialism. Still less does it follow that World Relief supports forced sterilization, which was the implication that prompted my original letter to Father Neuhaus.

The only logic here is the logic of innuendo, and Mindy Belz takes refuge in such woolly but tendentious language as a way of covering the gaps in her magazine’s research and reasoning. This is “paying attention to the facts”? When journalists at World learn to tell the difference between prophetic rebuke and the indiscriminate smearing of committed Christians––in relief and development or elsewhere––they may become a journalistic force to be reckoned with. Until then, they should be ashamed of themselves.

Hating Hitler

Walter Sundberg’s review of Explaining Hitler by Ron Rosenbaum ( “Hating Hitler,” February ) ends with a quote from the book: “It is, in fact, the culmination of a truer sophistication to be able to hate Hitler, a sophistication that doesn’t fall prey to the pseudosophisticated snares of explanation as exculpation, of explanation as abstraction away from Hitler’s personal agency. Hatred as not that which one starts with, rather as something one ends up with; the product of a deeper understanding.”

But what would Mr. Rosenbaum hope to achieve by advocating hate? The prescription to hate is not going to liberate us from the power of evil that has been so prevalent during this century. Hate is not going to contribute to the healing of our souls or to furthering peace in the world. On the contrary, the cultivation of hate cannot fail to foster the dominance of murderous human passions, and thus contribute to an increase in the power of evil. Embracing hate, at the beginning or at the end, means that we reject God, who is the fountain of love, and join with the Devil who is the sower of hate. By advocating hatred we unreflectively become the new agents of evil, the new pawns of the Devil in his war against God and his Christ.

Luis F. Caso
Worthington, OH

Pius IX and the Confederacy

I am dismayed that the Editor-in-Chief of a respected religious periodical chooses to relate a “poignant” story wherein Pope Pius IX sends the unjustly imprisoned Jefferson Davis a crown of thorns woven by his own hands and a written message “urging him to remember the sufferings of Christ, noting that just men frequently must suffer for the cause of justice” ( While We’re At It, February ).

The poignancy of the story is overshadowed by the audacity and falsity of the Pope’s misplaced sentiment. Leading a government that sanctions the enslavement and torture of human beings is not a “cause of justice.” That Richard John Neuhaus labels the story “politically incorrect” betrays unexpected callousness and thoughtlessness.

Kenneth C. Hardy
Pasadena, CA

RJN replies:

Mr. Hardy’s protest testifies to the great difficulty in resisting the presentism that makes moral judgments appear self-evident in retrospect. The fact is that there were many wise and honorable people in Charlotte, London, Paris, Rome, and elsewhere who in 1865 thought it a very close moral call between the South and the North, and many who thought the Southern cause more just. That is not the judgment of most of us today, which is no warrant for a sense of moral superiority over, for instance, Pius IX. I believe he was wrong, but neither Mr. Hardy nor I know what we would have thought in his circumstances.

Christianity and the Holocaust

Richard John Neuhaus cautions the Anti-Defamation League that “if the ADL is interested in Jewish-Christian dialogue, it is not helpful to claim that the Holocaust was ‘the expression of a total pagan anti-Semitism nurtured by two thousand years of Christian teaching of contempt’” ( “Stirring a Storm,” Public Square, February ).

Father Neuhaus’ admonition is surprising since he has always insisted that Jewish-Christian dialogue must be based on honesty and cannot require either participant to sacrifice his beliefs for the sake of dialogue. On that basis, he has stated that Jews cannot demand that Southern Baptists stop evangelizing among Jews, even though such a project would, if successful, bring Judaism to an end.

If Christians are to be free to preach the gospel to Jews without imperiling Jewish-Christian dialogue, then surely Jews must likewise be free to insist that Christians acknowledge the critical role that Christianity played in preparing the soil in which Hitler’s poisonous weed took root.

Howard A. Gootkin
New York, NY

RJN replies:

The theological anti-Judaism that marked much of Christian teaching was indeed exploited in the promotion of Nazism’s racial and pagan anti“Semitism. To conflate the two, as the ADL statement does, is neither accurate nor helpful.

Pro-Innocence or Pro-Life?

I read in the Public Square a positive response to the National Council of Catholic Bishops’ “Living the Gospel of Life” ( “The House of Human Dignity,” February ). I am struck by the frequent use of innocence as that which gives human life its right to be protected.

This allows killing murderers and Iraqi soldiers, but not fetuses. I think we are on precarious moral ground when the principle of value is innocence rather than life.

I understand the gospel to be pro-life, not pro-innocence.

(The Rev.) Richard Lord
Rush Creek Christian Church
Arlington, Tx

Many Contributors

While I appreciate the very kind review of my book, Our Sunday Visitor’s Catholic Encyclopedia ( Briefly Noted, January ), I should note that the work is not “by one author.” Rather, I was the editor of the volume, which in point of fact has thirty-six contributors.

(The Very Rev.)
Peter M. J. Stravinskas
The Catholic Answer
Mt. Pocono, PA