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“We hold these truths to be self-evident, that all men are created e ual, that they are endowed by their !reator with certain unalienable Ri"hts, that amon" these are Life, Liberty and the #ursuit of $a##iness.% &sin" these words that are so close to enunciatin" a #rinci#le of the natural law, the thirteen united 'tates of (merica reco"ni)ed that all men are created e ual and declared inde#endence from *n"land. +$* ,(+&R(L L(W +he natural law is the law written in our hearts and our souls, our very bein", by God. Romans -.1/-10. +he natural law, says 't. +homas ( uinas in his Summa Theologica, is “nothin" else than the rational creature1s #artici#ation in the eternal law.% 2t is called natural law, says John $ardon, '.J. in his Modern Catholic Dictionary, because all are “sub3ect to it from birth,% because it is only those “duties 4 derivable from human nature itself,% and because “its essentials can be "ras#ed by the unaided li"ht of human reason.% 5ather $ardon #oints out that, “while the ob3ect of natural law is the whole moral order as 6nowable by human reason,% some obli"ations of that law are more difficult to reali)e than others. “7rimary #rece#ts are most easily #erceived, as for e8am#le, that "ood must be done and evil must be avoided. 'econdary #rece#ts are also available to most #eo#le, such as the #rescri#tions of the 9ecalo"ue.% Reason can also attain “more refined conclusions% from those #rece#ts, but “with varyin" de"rees of difficulty, such as the evil of contrace#tion or the fact that direct abortion is always forbidden.% +hou"h the word slavery was not used in the !onstitution of the &nited 'tates, slavery1s continued e8istence reflected the contradiction and com#romise inherent in the foundin" of this country. +he #ositive law, the !onstitution enacted by men, did not reflect the natural law to which the 9eclaration of 2nde#endence had a##ealed. +he !ivil War did not resolve that contradiction. ,or did the constitutional amendments ado#ted in its wa6e. +hey eliminated slavery based on the color of a #erson1s s6in, but (merica ado#ted the le"al fiction of se#arate but e ual that treated a man as a second-class citi)en based on the color of his s6in. +hat fiction was abandoned almost a century later thou"h not without anomalies and resistance that lin"er today. (s our #ositive law came closer to the natural law in the 1:0;s and 1:<;s by reco"ni)in" the e uality of men before the law des#ite the different colors of their s6in, it moved away from it in the area of human se8uality and #rocreation. 2t may seem #arado8ical that #ositive law would a##roach the natural law on some issues while retreatin" from it on others. +o understand how this could occur, let1s loo6 at Geor"e 7. 5letcher1s Our Secret Constitution: How Lincoln Redefined American Democracy, which the (merican (ssociation of 7ublishers selected as the best boo6 #ublished on law in -;;1. 7rofessor 5letcher, the !ardo)o 7rofessor of Juris#rudence at !olumbia &niversity 'chool of Law, is a Jew who re3ects the natural law a##roach. 2n Our Secret Constitution, he ar"ues that the (merican le"al system should instead reflect +almudic thou"ht by which a law"iver1s intent is irrelevant, whether the law"iver be God or the framers of the !onstitution.
James G. Bruen, Jr. writes frequently for Culture Wars. This article was published in the September 2 !2 issue of Culture Wars.
% Rabbi Jeremiah e8#lained the reference. =et. “But #recisely one of the thin"s that he must thin6 is the (bsolute. des#erate and alone. +he rabbis were not im#ressed by these si"ns. indeed. a story from the +almud beautifully illustrates the folly of invo6in" ori"inal intent in a dis#ute about the meanin" of God1s commandments. 'o. “$ow dare you o##ose Rabbi *lie)er. #articularly in the &nited 'tates.athan as6ed. all thin"s considered. . is a 6ind of verbal #arado8. in the validation of e8#eriences. “+he #ra"matist tells a man to thin6 what he must thin6 and never mind the (bsolute. etc.% says 5letcher. 5letcher says. said no? the other rabbis said yes. not in the abstract re uirements of ideolo"ical lo"ic.% - .ono D7ius 2EF retreated within the walls of the Gatican and in 1HI. “7o#e 7io .eo-.% notes G.2 never cease to be ama)ed that le"al scholars. 2slamic e8tremists. is the model for all ideolo"ical e8tremists. “2t is not in $eaven. a +ruth that we can 6now. Rabbi *lie)er. 2t is in"rained in the (merican le"al and #olitical systems.athan and the #ro#het *li3ah.C Where does 5letcher believe we should loo6. at his command. White 'u#remacists. and Blac6 7anthers. for God already wrote in the +orah at @ount 'inai. continue to be confused about the relevance of the framers1 ori"inal intent. the declaration of #a#al infallibility is the underlyin" #roblem because it assumes there is a natural law. with an encounter between Rabbi .a)is.% 5or 5letcher. +his #hiloso#hy.J.% Rabbi Joshua arose and uoted 9euteronomy. invo6ed the ar"ument of ori"inal intent. the '9'. than reli"ious cultures that believe that their bindin" le"al #rinci#les were declared by God. more deferential to authority.% +ruth “lies in what wor6s. a carob tree was u#rooted and flew across the field. +his declaration that we can 6now absolute truth became a model for all the ideolo"ical e8tremists who followed on the ri"ht and on the left. #a#al infallibility is the model for the 'oviets.% +his is the (merican virtue. my children have defeated me.1% What stands in the way of man1s i"norin" the will of God as 5letcher1s +almudic analysis advocatesC 5letcher answers #ointedly. “+he #ra"matic le"al mind rushes to re3ect moral e8tremes in favor of some va"ue standard of what is "ood for everybody. !hesterton in Orthodoxy. let heaven be the #roof. @ao. the re3ection of morality. 2t is the re3ection of natural law. “2f 2 am ri"ht. >ne of them. +hen Rabbi *lie)er. if not to natural law and the will of GodC “+he truth lies in what wor6s. a stream flowed u#stream. +heir intentions and desires cannot rule A either from the "rave or from heaven. *ver since the +orah was "iven at @ount 'inai.a)is. 7rofessor 5letcher adds. the Weathermen. the . 7ra"matism is a matter of human needs? and one of the first of human needs is to be somethin" more than a #ra"matist. his council declared the infallibility of his office on matters of faith and morals. 'ecular le"al systems could not #ossibly be more demandin".% +he #oint is that once the lan"ua"e is released and "iven to 3urists to fashion to the needs of their time.% ( heavenly voice then #roclaimed. in one version. whose views are everywhere the law. +his. the tas6 of law"ivers is finished. Rabbi . #ra"matism? whatever wor6s is "ood and true. and the re3ection of +ruth. “we #ay no attention to heavenly voices. and the walls started to colla#se before they were halted. +he story concludes. “What did God do at that moment when Rabbi Joshua #roclaimed Bit is not in $eaven1C% *li3ah answered. B@y children have defeated me. ( "rou# of rabbis were en"a"ed in a debate about whether a #articular earthenware oven was 6osher or not. “God lau"hed and said. Rabbi *lie)er #roceeded to invo6e a variety of fantastic si"ns to su##ort his view. and #roclaims the #o#e can e8#ound it.
of the universe. and. whether e uality.7ra"matists deni"rate the natural law a##roach but nevertheless often a##eal to a “hi"her% law.'. HKK D1::-F the 'u#reme !ourt e8#lained its contrace#tion and abortion decisions thus.% Lader1s tactic was outra"eous. re#resent to them. 00H. indeed.% WhoC “. 9octor John Roc6. 'econdly. 5irst of all. it ma6es little sense to lead a cam#ai"n a"ainst un3ust laws.athanson details the successful efforts of Lawrence Lader and himself. of meanin". +hey were com#licit by undercuttin" !hurch teachin" on contrace#tion and abortion.% (nd then. K .0 &. 0. a !atholic who tau"ht at $arvard @edical 'chool. 2 was far from an admirer of the church1s role in the world chronicle. “M*Nvery revolution has to have its villain. “$e held forth on that theme for most of the drive home. are central to the liberty #rotected by the 5ourteenth (mendment. we1ll 3ust anta"oni)e a few who mi"ht otherwise have 3oined us and be valuable show #ieces for us.% when blud"eonin" those who res#ect the natural law. but a conscious. “we1ve "ot to brin" the !atholic hierarchy out where we can fi"ht them. identify those un3ust laws with a #erson or a "rou# of #eo#le. +he Justices were #ra"matic. and of the mystery of human life. We create our own reality. but !atholics were not blameless either. +ruth.ew =or6 in the late 1:<. . two Jews from . "ay ri"hts. even thou"h that1s what we really are doin". 2n lanned arenthood !" Casey.'. involvin" the most intimate and #ersonal choices a #erson may ma6e in a lifetime. choices central to #ersonal di"nity and autonomy. +he bi""est sin"le obstacle to #eace and decency throu"hout all of history. in $rom atriotism to luralism: How Catholics %nitiated the Re&eal of 'irth Control Restrictions in Massachusetts . 5or e8am#le. “. in our case. a #o#ular front as it were. and for us to vilify them all would diffuse our focus.% +he !ourt trotted out the #assa"e a"ain in -. they wanted to le"ali)e abortion and homose8ual sodomy. . uncom#romisin" recitation brou"ht to mind the 7rotocols of the *lders of Lion.ow.s. and if we tar them all with the same brush. “these matters. 2n A#orting America D1:I:F. ( #ra"matism that refuses to ac6nowled"e the natural law results in laws that sometimes conform to the natural law. the !hurch. it1s "ot to be the !atholic hierarchy.% said Lader. +o do so. the natural law.% Lader1s a##roach re uired dividin" the !atholic bisho#s from their floc6. so they did what it too6. to le"ali)e abortion in .% Lader1s comment was not a casual observation.. +he ideolo"y 3ustifies the means. 2t #assed throu"h my mind that if one had substituted BJewish1 for B!atholic1.o. “2t was a com#rehensive and chillin" indictment of the #oisonous influence of !atholicism in secular affairs from its ince#tion until the day before yesterday. @='+*R= >5 L25* 7(''(G* +he mystery of life #assa"e reflects #ost-modernist thou"ht. (nd.ot 3ust all !atholics. that1s too lar"e a "rou#. we have to convince liberal !atholics to 3oin us. bitter a##roach. feminism. and that sometimes don1t.% recounts .K in Lawrence !" Texas. +hat1s the real enemy. 0K: &. to rationali)e constitutional #rotection for anal sodomy between men. Bernard . But some are even blunter. such as laws a"ainst murder and ra#e. 2t1s "ibberish.ew =or6 !ity.athanson. “(t the heart of liberty is the ri"ht to define one1s own conce#t of e8istence. or some other “ri"ht. was one of the leadin" clinical researchers who develo#ed the #ill. but his insistent. 7ure #ra"matism encoura"es any strata"em in the service of ma6in" an ideolo"y succeed. a fi" leaf that hides and tries to ma6e more #alatable the !ourt1s . Lader insisted that to "et abortion le"al. it would have been the most vicious anti-'emitic tirade ima"inable. such as our laws on abortion. they chose the !atholic bisho#s as their foe.iet)schean im#osition of its will on the less #owerful. We have to narrow the focus.ot all #eo#le are as articulate or as o#en as 5letcher about the dan"er that the 7o#e.
#resumably because of an accident ahead. >nce. +hey want to fi"ht the battle on (merican #rinci#les rather than on !hurch teachin"..% J&L= 1:</ 2n July 1:</. 5r. The olitics of A#ortion. we theolo"ians arrived safely at the Jennedy com#ound. 2 remember vividly. a Jesuit who later left the #riesthood and tau"ht at Brown &niversity.s. 1.-11. >ther theolo"ians and 2 were drivin" down Route K to !a#e !od. +he !hurch in / . 5r. 2 as6ed its former bisho#. lobbyin" the #ro-abortion #osition to the other Justices. We often do not #ro#ound the truth that is !atholicism. We were to meet with the 'enators Jennedy and the 'hrivers at their re uest. Richard @c!ormic6. +he bindin" nature of natural law on all. 5r. (nne $endershott. it did so with the a##roval and assistance of the Boston (rchdiocese in concert with the 7lanned 7arenthood Lea"ue of @assachusetts. was stridently #ro-abortion. Robert 9rinan. about nine months after the assassination of John 5. +he same is true in the &nited 'tates. the only !atholic on the 'u#reme !ourt when it decided Roe !" )ade.e8cer#ted and ada#ted in Boston !olle"e @a"a)ine. !atholic teachin" insists a "overnment should "uard morality by #rotectin" the family a"ainst contrace#tives because they are contrary to the natural law. why the !hurch seemed so wea6 there. and Bob 9rinan drove <. 2n the evenin". 5or e8am#le. Justice Brennan. 2n contrast. -K D1:<HF a##eals to 7ublic (uthorities. Jennedy. 'eth @eehan documents that Richard !ardinal !ushin" of Boston facilitated the re#eal of @assachusetts1s ban on contrace#tives in the mid-1:<. an (merican missionary. 5r. the bisho#s1 chosen battle"round is the 5irst (mendment1s "uarantee of reli"ious freedom. !harles !urran.ew =or61s laws and a decade before Roe !" )ade. they concurred on certain basics . +hou"h the theolo"ians disa"reed on many a #oint. Humanae (itae. Giles @ilhaven. We conform ourselves to the (merican Way. 2 remember it vividly because the traffic lanes were 3ammed and halted. and lar"e families is treated as incidental to the battle. $is answerC We do a #oor 3ob of evan"eli)ation. Let1s listen to Giles @ilhaven. 9es#ite my mis"ivin"s each time we swe#t around a curve. is all but i"nored. describe it at a 1:H/ meetin" of !atholics for a 5ree !hoice. and that was that a !atholic #olitician could in "ood conscience vote in favor of abortion Mand thatN in certain situations abortion is morally licit and may even be obli"atory. not 3ust !atholics. “do not tolerate any le"islation which would introduce into the family those #ractices which are o##osed to the natural law of God. We can hardly claim le"ali)ed abortion was foisted on an unsus#ectin" !atholic !hurch when #rominent cler"y were wor6in" surre#titiously to facilitate the chan"e years before Lader and . in our bisho#s1 #ublic battle with the >bama (dministration over its mandate that health insurance #olicies cover contrace#tion.athanson undercut . @oreover. +he beauty and truth of the !hurch1s teachin" on human se8uality. When the @assachusetts le"islature voted to end the ban on contrace#tives. +he theolo"ians wor6ed for a day and a half amon" ourselves at a nearby hotel. where it is considered at all. with Bob 9rinan at the wheel. other !atholic theolo"ians. miles an hour down the brea6down lane.. marria"e. and at least one bisho# went to the Jennedy com#ound in $yannis#ort to meet with +ed and Bobby Jennedy to discuss the #osition a !atholic #olitician should ta6e on abortion. We 6ee# its li"ht under a bushel bas6et. contrace#tion. we answered uestions from the Jennedys and the 'hrivers. when there was unrest and riotin" on a 7acific island.
the bisho#s insist the battle is “not about access to contrace#tion. nor even about #reventin" the Government from #rovidin" such services. it 6nows !atholics are #oorly catechi)edC Because it thin6s !atholics li6e 5ather Jen6ins don1t care whether #eo#le form their consciences #ro#erly or en"a"e in sinful activityC Because. not the !hurch. li6e Lader and . the usurious economy. (s we assert the ri"ht to follow our conscience. We1d better never tal6 about that. Let me say very clearly what this lawsuit is not about.(merica seems to treat !hurch teachin" on contrace#tion as an embarrassment. an atavistic holdover from medieval times. which “brou"ht such a tsunami of dissent. “in s#ea6in" with any amount of co"ency on chastity and se8ual morality. disa##roval of the church. first and foremost. is that we should be chums with the world. "iven the #ossibility that the bisho#s1 silence may ma6e the hereafter “too hot to handle% for them. was Humanae (itae. if the Government wishes to #rovide such services.% !ardinal +imothy 9olan told the Wall 'treet Journal. "luttony. 9own#layin" moral #rinci#les.and late B<. ( 'tatement of the (dministrative !ommittee of the &nited 'tates !onference of !atholic Bisho#s.s.% $e dated this diffidence to “the mid. etc.G 0 . +he >bama (dministration.otre 9ame 7resident 5r. @any of our faculty. and that the best thin" the church can do is become more and more li6e everybody else. 2t is disconcertin" to hear the !hurch critici)e an order that it #ay for contrace#tives while remainin" silent on the evil of usin" them. 'u#reme !ourt too6 that issue off the table two "enerations a"o.% nor about “Bbannin" contrace#tion.1 when the &. wants the battle"round to be contrace#tion A the so-called war a"ainst women. “9o we everO% re#lied !ardinal 9olan “with a hearty lau"h. li6e (rchbisho# 9olan. #orno"ra#hy.1 We forfeited the chance to be a coherent moral voice when it comes to one of the more burnin" issues of the day. means are available that do not com#el reli"ious or"ani)ations to serve as its a"ents. WhyC Because. 'o the !hurch in (merica focuses not on morality but on lobbyin" and coalition buildin" and lawsuits. -. includin" myself A 6ind of subconsciously said. But the >bama (dministration wants to focus on contrace#tion.'. staff and students A both !atholic and non-!atholic A have made conscientious decisions to use contrace#tives. when the whole world seemed to be cavin" in. that 2 thin6 most of us A and 21m usin" the first-#erson #lural intentionally.% +he !hurch in (merica seems "un-shy on many issues. it wants to drive a wed"e between the laity and the bisho#s A even if that wed"e is illusory as the bisho#s themselves have no coherent moral voiceC '!R2BBL2.ew =or6 archbisho# said.% &nited for Reli"ious 5reedom. it is not about #reventin" women from havin" access to contrace#tion.% the . de#arture. “9oesn1t the church have a #roblem conveyin" its moral #rinci#les to its own floc6C% as6ed the )all Street *ournal. . >f what worth is a civil law "uarantee of free s#eech or of freedom of reli"ion if !atholics A or their bisho#s A decide we better not tal6 about hot issuesC +he !hurch often seems more intent on conformin" to (merican mores rather than transformin" them.athanson.% 2 sus#ect it was a nervous lau"h. and where !atholics in "eneral "ot the im#ression that what the 'econd Gatican !ouncil tau"ht.1-. “We have "otten "un-shy. @arch 1/. (merican militarism.% +he “flash #oint. we res#ect their ri"ht to follow theirs. because it1s 3ust too hot to handle. John Jen6ins used a similar but more obse uious tac6 to e8#lain the university1s lawsuit a"ainst the >bama (dministration over the mandate. BWhoa. (nd we believe that.
anythin" is morally 3ustified if the ma3ority a##rovesC GenocideC (nti'emitismC &suryC Ra#eC Just wave the wand of #ublic a##roval and the 'even 9eadly 'ins become the 'even 9ivine GirtuesC (nalo"ously. “Roma locuta est. even the !atholic !hurch is a democracy. But his a##roach #asses for #hiloso#hy at . would it be beyond the #ower of the civil "overnment to #revent her carryin" her belief into #racticeC% 'o why can1t federal law ma6e a reli"ious institution1s failure to #rovide insurance covera"e for contrace#tion or abortion #unishable by fineC < .otre 9ame. 9oes the 5irst (mendment #revent all infrin"ement on reli"ionC >f course not.or. 2n this sense. which also determines moralityC 2n a democracy.'cribblin" for the +ew . the teachin" of the !hurch and the morality of an action are determined by the dictator in authoritarian countries. “$umanae Gitae. 2t follows that there is no alternative to acce#tin" the members of a reli"ious "rou# as themselves the only le"itimate source of the decision to acce#t their leaders as authori)ed by God. causa finita est. asserted that a chasm e8ists between the laity and the e#isco#acy.nited States. But. to the e8treme of assertin" that. for e8am#le. +his is above all true in matters of se8ual morality. sayin". des#ite contrary su""estions from the bisho#s. even so. “'u##ose one believed that human sacrifices were a necessary #art of reli"ious worshi#. or by the !ommunist 7artyC 7rofessor Guttin"1s a##roach is silly.otre 9ame and #erha#s reflects a #revailin" but incoherent belief of !atholics in (merica. really. haven1t the members of the !atholic !hurch reco"ni)ed their bisho#s as havin" full and sole authority to determine the teachin"s of the !hurchC By no means. +hey may be wron". 4 @ost !atholics 4 now reserve the ri"ht to re3ect doctrines insisted on by their bisho#s and to inter#ret in their own way the doctrines that they do acce#t. 1/0 D1HIHF Dthou"h 21d hesitate to #redict how it would decide a similar case todayF. where the ma3ority of !atholics have concluded that the teachin"s of the bisho#s do not a##ly to them. the !hurch no lon"er teaches that contrace#tion is sinful. (ll he has noticed.% 2n fact the issue has been settled by the voice of the !atholic #eo#le. es#ecially birth control. ma6e #oly"amy criminal even thou"h @ormons believe it a reli"ious dutyC +he 'u#reme !ourt u#held a federal law outlawin" #oly"amy in federal territories in Reynolds !" . :H &. 7o#e 7aul G2 meant his 1:<H encyclical. !an the state #ro#erly infrin"e u#on reli"ionC >f course it can. is that !atholics are sinners and that contrace#tion is a wides#read sin. 2n our democratic society the ultimate arbiter of reli"ious authority is the conscience of the individual believer. +he immorality of birth control is no lon"er a teachin" of the !atholic !hurch. but their 3ud"ment is answerable to no one but God. !an the state.'.% 4 +he bisho#s1 claim to authority in this matter has been undermined because !atholics have decisively re3ected it.% to settle the issue in the manner of the famous ta". 2n a democratic society. the teachin" of the !atholic !hurch is sub3ect to ma3ority vote. Gary Guttin".Times. a !atholic who teaches #hiloso#hy at . would it be seriously contended that the civil "overnment under which he lived could not interfere to #revent a sacrificeC >r if a wife reli"iously believed it was her duty to burn herself u#on the funeral #ile of her dead husband. 4 +he mista6e of the >bama administration A and of almost everyone debatin" its decision A was to acce#t the bisho#s1 claim that their #osition on birth control e8#resses an authoritative “teachin" of the church.
conformity of the #ositive law to the natural law now occurs ha#ha)ardly. not blud"eon her into #olitical submission. 2ndeed.. K:<. >ur solution must be first and foremost !atholic. 7ray for your enemies. When (merica1s heart chan"es.ews. abortions. Lawrence Lader remained bitterly anti-!atholic all his life. and be ratified throu"h le"al norms “consistent with the ob3ective moral order. (s individuals and as a !hurch. the !hurch. 2n the (merican system. We must convert (merica. and evan"eli)e. even suin" the 2nternal Revenue 'ervice unsuccessfully to revo6e the !hurch1s ta8 e8em#tions. (s lon" as !atholics are e8ercisin" #olitical ri"hts within a system that often disre"ards the moral order and natural law. 2n contrast. 'aint 7aul asserted his ri"hts as a Roman citi)en. re#ented and converted to !atholicism. who #resided over <. /--. we should strive to brin" #ositive law into con"ruence with the natural law.. favorable and #ro#er results will be s#oradic. But we must not e8alt our civic ri"hts or the #olitical #rocess such that they become or seem more im#ortant than the 5aith. 2n contrast.>+ (. so will its a##reciation of natural law. 7olitical authority “must be "uided by the moral law MandN e8ercised within the conte8t of the moral order. tell the nation the Good . catechi)e !atholics A laity and cler"y ali6e. and the role of the #o#e. 'o. or +ruth. while a ban on @ormon or @oslem #oly"amy or a ban on $indu suttee does. indeed.% %d". we must root out sin in our lives and cultivate virtue... ( mandate that a reli"ious institution A or. today1s (merican le"al and #olitical system in #ractice denies the e8istence of an ob3ective moral order. &.athanson. by ha##enstance.% Com&endium of the Social Doctrine of the Church. +he !hurch thus insists that restrictions must conform to the ob3ective moral order? they must conform to the natural law. +hat does not mean !atholics should not assert civic ri"hts or be active in the #olitical #rocess. the natural law. Bernard . Go forth. includin" #erformin" one that 6illed his own child. I . any institution A must #rovide insurance covera"e for contrace#tion or abortion does not conform to the ob3ective moral order. accord with the common "ood.L2@2+*9 R2G$+ +he !atholic !hurch teaches that reli"ious freedom “is not of itself an unlimited ri"ht?% 3ust limits on its e8ercise must be #olitically #rudent..