John Finnis’s “Abortion Is Unconstitutional” (April) has already sent shockwaves through the pro-life movement and the broader abortion debate. The piece sparked a vigorous debate with prominent conservative scholar Ed Whelan. In the New York Times, Michelle Goldberg denounced what she called an “authoritarian plan for a national antiabortion ban.”
While recent work by Finnis and Josh Craddock offers a detailed, sophisticated argument for the recognition of fetal personhood under the Fourteenth Amendment, there is nothing new about this reasoning. Indeed, before Roe, leading pro-life legal scholars like Joseph Witherspoon, Robert Byrn, Dennis Horan, and Victor Rosenblum argued that the framers of the Fourteenth Amendment recognized the personhood of the unborn (and would thus have viewed abortion as unconstitutional). Some of these arguments (particularly those made by Witherspoon) took an originalist approach. Other pro-life scholars relied on international human rights law or even substantive due process—they reasoned that if the Constitution recognized other implied rights, surely a right to life would enjoy protection too.
These arguments, of course, reflected pro-life optimism about the courts. Byrn, for example, asked to be named guardian ad litem for all the unborn children scheduled to be aborted in New York City hospitals. His stated aim was to convince the courts to reinstate the criminal abortion laws that the legislature had removed.
There are certainly disagreements about what the framers of the Fourteenth Amendment had in mind when it came to abortion. (Whelan’s thoughtful commentary offers just one example.) But what led pro-life lawyers to abandon Byrn’s strategy had more to do with politics than with the finer points of the law.
Leading pro-life lawyers believed that the Supreme Court would not accept a Fourteenth Amendment argument. And when the pro-life movement hitched its star to the Republican party, it became easier to focus on the judicial activism of the Roe Court. In the 1980s, Ronald Reagan and other GOP leaders castigated the Court not only for inventing rights whole cloth but also for taking abortion out of the democratic process. In aligning with the GOP, it was far easier to focus on similar arguments than to demand the recognition of personhood under the Fourteenth Amendment.
Below the surface of the debate between Finnis and Whelan is a fight about what is politically possible (or wise) today. They raise questions that should concern any social movement. Is it better to make incremental progress and work within the limits set by current public opinion (or Supreme Court preferences) for fear that anything more will backfire? Or is there no other way for a social movement to change popular opinion than to ask for what it wants? For the most part, pro-lifers never stopped believing that scholars like Robert Byrn had it right. The debate has often turned instead on whether it was strategically smart to make the same arguments.
If there is any area in this vibrant debate that deserves more attention, it is the limits of the Supreme Court’s power. There is a rich body of literature on what the Court can and cannot do on any number of areas of national interest, from school prayer to school segregation and abortion. Finnis is right to expect “unimaginable resistance” to any Supreme Court decision recognizing personhood under the Fourteenth Amendment, but as Whelan recently wrote, the question of enforcement would loom particularly large. To this historian, the fifty years after Roe have offered important lessons about the limits of the Court’s power to reorient or resolve our divides about abortion. If the Court does recognize Fourteenth Amendment personhood, it is not clear how that will change.
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In his review of my recent book History Has Begun (“History Never Ended,” April), Nathan Pinkoski argues that I left out religion from my grand theory of politics after liberalism, and the omission threatens to invalidate my whole project. In a way, this is correct. I do attempt to move beyond religion, albeit in what Pinkoski calls a subtler way, subtler than a crude kind of liberal secularism. I think religion can survive in America but only as virtual reality, a way to make life more interesting. Religion as the appeal to a transcendent reality has in fact already disappeared.
Pinkoski, like many others, suspects that the religious impulse is alive and well in the woke left and other progressive causes. I disagree. These seem to me instances of the fantasy impulse. Wokeness belongs to the virtual left, just as Trumpism belongs to the virtual right. Its fundamental unseriousness shows that the goal is to experience the thrills and even the moral elevation of revolutionary politics without any of the attendant risks. The genius of American life is that everything can be lived out, often in such a way that the experience feels very real, but different experiences are accumulated on top of each other in virtual space. There is no need for a fight to the end in order to control a singleton reality. Pinkoski is very much mistaken if he sees a serious political and cultural war taking place in the United States today. Creativity, not conflict, is your destiny.
The general framework organizing American society is no longer liberalism, but neither is it religion. Everything takes place as one form or another of virtual reality. Virtualism rules.
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Nathan Pinkoski replies:
Maçães’s letter states his intriguing thesis with admirable clarity. It permits me to restate my own critique.
When reading Maçães, we should ask what ideas and concepts inform the impulse to create the fantasy worlds he rightly identifies as emerging. Maçães’s mistake is to attempt to close off political theology, to reduce the presence of theological ideas and concepts to the fantasy impulse. His theory therefore fails to explain contemporary America.
If Maçães were to journey among the suburbs of ultra-blue America, he would see many signs: “Hate Has No Home Here”; “In This House We Believe . . .”; and “Black Lives Matter.” Undoubtedly much of this plays to a fantasy script where America is but one election away from a fascist/white supremacist takeover, and only the “bobo” superheroes of #resist can stop it. But a deeper explanation is that it is a performance informed by the theological concepts of guilt and innocence. To put a BLM sign on one’s lawn is indeed a creative performance. But it is creativity confined and defined by a creed (“In This House We Believe . . .”): an impulse that signals one’s own innocence in the midst of the guilt that stains America. These categories can only produce conflict. “Hate Has No Home Here” implicitly divides America between one’s friends (those who put up such signs) and one’s enemies, the haters whose existence the sign presupposes (who are found elsewhere in the country). This friend-enemy division of America is very much in earnest, which is why I can only express astonishment at Maçães’s view that no “serious political and cultural war” is taking place in America today.
Moreover, Maçães cannot close off political theology completely in his own analysis. A tension in his position is that he implicitly relies on a theological explanation to criticize where American foreign policy goes awry in its own fantasy impulses, for he regards American foreign policy obsessions as religious in origin. Theology is indispensable for his own diagnosis of what America is.
What is twenty-first-century America? It is a nation where the fantasy impulse of the ruling class is shaped and defined by guilt. We should follow this through and compare America to Europe. As Maçães knows, the ascent of guilt is a postwar and especially post-1968 European experience. The creedalism of guilt creates new forms of confinement and self-abasement. America and Europe have much in common; wracked by guilt, their ruling classes share un destin de soumis.
Peter Tonguette’s superb decryption of Revolutionary Road (“At Home on Revolutionary Road,” April) and Ephraim Radner’s poignant reflection on the vast amount of “Music That is Never Heard” touch on the same topic: the limitless, fruitless, and ultimately pointless pursuit of recognition, fame, and uniqueness in contemporary America. This cultural folly is killing the country, spiritually and in many cases physically as well, through its inevitable consequences in psychological pathologies of depression and anxiety.
It is the hardest of hard realities, and, without any proper meaning-making frameworks, most Americans have difficulty accepting it. Most individuals have no unique artistic gifts to offer, a blunt rule proven throughout human history. But much of our culture today—especially what passes for “education”—is institutional mendacity, systemic lying to young people that they live in Lake Wobegon, where all are far above average.
All literate people can write. All musically literate people can make music. And they should certainly do so, if their hearts drive them in that direction, but they should also recognize that the true reward of that work lies in the work itself, not in the adulation of others or in financial gain.
Yet my students look at me with scarcely concealed disgust and anger when I tell them this. It only gets worse when I say that I do not want to crush their dreams; rather, I want them to raise themselves spiritually by putting the game of social recognition in the proper perspective.
In Revolutionary Road, the Wheelers foolishly imagine a move to the City of Lights will transform them into the vibrant artists they always thought they were. This pernicious myth lives on. My young daughter’s favorite movie is Monsters vs. Aliens. It is a clever, funny riff on the monster movie genres of my own youth, but it does not escape our crooked contemporary culture’s celebration of “recognition” and “authenticity.” The heroine Susan/Ginormica wants to go to Paris, too, and the film never disabuses its young audience of her frivolous wish. Indeed, it grants it, and thereby tells children they need never “settle” either, for everyone can have all the attention they want if they just want it enough.
A whole society that believes this and tries to function according to this logic is about the most preposterous thing one can imagine.
Peter Tonguette replies:
I am glad that my essay on Revolutionary Road inspired such perceptive commentary by Alexander Riley. Among the most lamentable consequences of mass communication is its tendency to instill in ordinary people the notion that we are each fated for fame, fortune, or, at least, a bohemian lifestyle. Earlier generations’ expectations for their lives were tethered to reality by the institutions of family, school, and church, but mass media, whether in the form of movies, television, or Instagram, can make faraway lands—like the Paris of Frank and April Wheeler’s imagination—seem misleadingly within grasp.
This not only encourages misdirected ambition but, as Riley suggests, misunderstands the intrinsic value of amateur artistic endeavors, which was summarized well, if rather tritely, by Kurt Vonnegut some years ago: “Practicing an art, no matter how well or badly, is a way to make your soul grow, for heaven’s sake.”
At the same time, we should be careful not to discourage those lonely souls who, convinced of their own talent, doggedly pursue artistic goals that must seem preposterously unrealistic. The examples of the composer Charles Ives, the novelist Henry Green, or the short story writer Raymond Carver tell us that great artists can emerge from quotidian circumstances.
The lesson of Revolutionary Road, then, may be the importance of self-honesty: Since would-be actress April Wheeler was clearly not in the class of Helen Hayes, she ought to have been content with the satisfactions of domestic life. To raise a family and run a home—these are not things to “settle” for, as our cultural guardians would have it, but are rewards in and of themselves.
It is gratifying that Political Theology of International Order has stirred controversy and inspired a response. In the end, though, David Novak is unpersuaded by what he describes as an attempt to “restore a theologically justified politics” (“Law of Nations,” April). What a reader finds in a text is shaped by what he or she already knows and believes, and thus a text speaks for a purpose the reader imposes on it. Novak’s conclusion discounts statements of authorial intention, with the ostensible omissions of the text reflecting the preoccupations of the reader rather than the author.
Here it is well to reinstate the author, not to impose a definitive meaning on the text, but to suggest the limits of what can be plausibly derived from it. The book is not itself a work of theology: “No theological postulate guides the argument,” and it does not “advocate or endorse a particular theological account of the world.” There is, then, contra Novak, no theological vision to restore and no attempt to convince non-believers to have faith in a God they do not love, worship, or obey. I do, however, endeavor to show that medieval theology furnishes ideas that shape modern thinking about international order and, further, that these ideas exert a logic that structures the questions we ask about international order and the way we answer them.
Uncovering this theological inheritance challenges some of the most resilient assumptions of international relations scholarship, foremost among them the pervasive view that international relations is a secular domain that can be explained on its own terms. It also elucidates the limits of this inheritance—the secularization of theological concepts—by illuminating the indeterminacy of a world in which God is only one of several possibilities that can provide the normative orientation of international order. What one sees as truth, another sees as power.
Understanding rather than prescription is the objective of this type of inquiry. If our thinking is intelligible in a world of ideas, then investigating taken-for-granted assumptions is a much-needed prophylactic against reifying pseudo-natural concepts like anarchy. The vocabulary of international order is neither neutral nor innocuous; it has a history that is steeped in theology. So it may be the case, as Novak suggests, that in a pluralistic world it is better to justify international order with reference to a natural law that functions as a law of nations—that is, what actually operates in the relations of states. Surely it matters, though, that Hugo Grotius’s law of nations (Novak’s example) derives its authority from God’s reason: “The nations disclose the work of the law written in their hearts” (Rom. 2:15). Some observers will rightly ask if this really is, as Novak puts it, a secular criterion of international relations.
Are politics and the natural law foundation of good faith so easily separated, as Novak seems to suggest? Jacques Maritain, whom he also invokes, thought it desirable to distinguish practical conclusions from rational justifications of human rights; and yet he insisted that “why”—rational justification—is where the argument begins. The theological inheritance I uncover invites an answer to the “why” of international order. Novak is undoubtedly convinced of the truth of his justification, but why, in a world where an agreed scale of values looks increasingly brittle, should someone who adopts a different justification interpret his answer as something other than an assertion of power masquerading as truth? The common ground he offers may well support a “noble international enterprise,” but the danger to which we must remain attuned is the possibility—as in the past—that it can also support projects of domination and dispossession.
David Novak replies:
William Bain objects to my treating his book as a work of theology, when he has explicitly stipulated that it is not, insisting that “understanding rather than prescription is the objective of this type of inquiry.” Nevertheless, I do question whether one can inquire into what Bain correctly identifies as the theologically constituted idea of “international order,” without himself having to conclude that this idea, as it has been understood in the past, ought to order international relations in the present.
Now, were Bain simply to have surveyed the various ways this idea has been understood in the past, he could have pleaded more convincingly that he is not “doing theology,” which, as Hans-Georg Gadamer astutely pointed out, like law, is an essentially normative enterprise. However, by selecting one version of this idea of international order, and advocating that it is to be the one to “shape modern thinking about international order,” he has thereby engaged in the very prescriptive enterprise he precludes himself from.
Furthermore, this explains my criticism of Bain’s mention of Carl Schmitt, simply citing him as one more thinker influenced by Ockham’s notion of “imposed order,” when, in fact, Schmitt was making a thoroughly prescriptive argument, justifying how nations conduct and ought to conduct their international affairs in the present. That Schmitt’s argument was “neither neutral nor innocuous,” neither in its intent nor in its effect, is the way it functioned as the main legal justification of the morally odious Nazi regime. Thus Bain could have made a better normative argument if he had confronted Schmitt as a powerful adversary, instead of using him as a mere reference point.
Finally, Bain misunderstands my invocation of Hugo Grotius and Jacques Maritain. Their natural law arguments were secular insofar as neither of them (in Bain’s words) “derives its authority from God’s reason.” (Actually, by Bain’s own distinction between “immanent order” and “imposed order,” it is from God’s will that authority is derived, whereas God’s “reason” or wisdom provides the ends of natural law, not its prescriptions.) So, neither Grotius nor Maritain is a “secularist,” because the ontology informing their natural law theories is theological. Indeed, Bain would have made a better theological argument had he argued along the lines of Grotius and Maritain, thereby joining their distinguished company. Maybe he will do so in a sequel to this book.
As a longtime reader of Charles Dickens, with a particular interest in his expressions of Christian faith in his work (last year I edited The Gospel in Dickens from Plough Publishing), I read Algis Valiunas’s article “The Gospel According to Dickens” (April) with great appreciation. Valiunas successfully captures Dickens’s ability to express that faith through humor and through sorrow, in joyful situations and in tragic or terrifying ones—in short, in “the best of times” and “the worst of times.” Dickens himself acknowledged privately that his good characters did not proclaim their faith from the housetops, but he went on to assert: “Over and over again, I claim them in express words as disciples of the Founder of our religion.” Conversely, he pointed out, “All my social abuses”—and of course, Dickens’s portraits of social abuses are legion—“are departures from [the New Testament’s] Spirit.” Even his satirical attacks on heartless clergymen and hypocritical churchgoers are based on an understanding of what Christians should be, and a frustration with their failure to live up to their faith.
It is hard to understand how so many scholars have downplayed these expressions of faith or overlooked them altogether; it is good to see that others are recognizing this faith, engaging with it, and honoring it. I would go so far as to suggest that we cannot properly understand Dickens or his books without taking it into account.