Law in the Ruins.doc

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Law in the Ruins1by James G. Bruen, Jr.

We hold these truths to be self-evident, that all men are created eual, 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 eual and declared inde#endence from *n"land.

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+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 creatures

#artici#ation in the eternal law.% 2t is called natural law, says John $ardon, '.J. in hisModern 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 byhuman 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, slaverys 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 #ersons s6in, but (merica ado#ted the le"al fiction ofse#arate but eual 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:


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2 never cease to be ama)ed that le"al scholars, #articularly in the &nited 'tates, continue to be

confused about the relevance of the framers ori"inal intent. 'ecular le"al systems could not

#ossibly be more demandin", more deferential to authority, than reli"ious cultures that believe that

their bindin" le"al #rinci#les were declared by God. =et, a story from the +almud beautifully

illustrates the folly of invo6in" ori"inal intent in a dis#ute about the meanin" of Godscommandments. ( "rou# of rabbis were en"a"ed in a debate about whether a #articular earthenware

oven was 6osher or not. >ne of them, Rabbi *lie)er, said no? the other rabbis said yes. Rabbi *lie)er#roceeded to invo6e a variety of fantastic si"ns to su##ort his view at his command, a carob tree

was u#rooted and flew across the field, a stream flowed u#stream, and the walls started to colla#se

before they were halted. +he rabbis were not im#ressed by these si"ns. +hen Rabbi *lie)er,

des#erate and alone, invo6ed the ar"ument of ori"inal intent 2f 2 am ri"ht, let heaven be the #roof.%

( heavenly voice then #roclaimed $ow dare you o##ose Rabbi *lie)er, whose views are

everywhere the law.% Rabbi Joshua arose and uoted 9euteronomy 2t is not in $eaven.% Rabbi

Jeremiah e8#lained the reference *ver since the +orah was "iven at @ount 'inai, we #ay no

attention to heavenly voices, for God already wrote in the +orah at @ount 'inai.% +he #oint is that

once the lan"ua"e is released and "iven to 3urists to fashion to the needs of their time, the tas6 of

law"ivers is finished. +heir intentions and desires cannot rule A either from the "rave or from

heaven.

7rofessor 5letcher adds,

+he story concludes, in one version, with an encounter between Rabbi athan and the #ro#het

*li3ah. Rabbi athan as6ed, What did God do at that moment when Rabbi Joshua #roclaimed it is

not in $eavenC% *li3ah answered, God lau"hed and said @y children have defeated me, my

children have defeated me.%

What stands in the way of mans i"norin" the will of God as 5letchers +almudic analysis advocatesC

5letcher answers #ointedly 7o#e 7io ono D7ius 2EF retreated within the walls of the atican and in 1HI; his

council declared the infallibility of his office on matters of faith and morals. +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.%

5or 5letcher, the declaration of #a#al infallibility is the underlyin" #roblem because it assumes there is a

natural law, a +ruth that we can 6now, and #roclaims the #o#e can e8#ound it. +his, 5letcher says, is the model

for all ideolo"ical e8tremists. 'o, #a#al infallibility is the model for the 'oviets, the a)is, @ao, the '9', theWeathermen, eo-a)is, 2slamic e8tremists, White 'u#remacists, and Blac6 7anthers, etc.C

Where does 5letcher believe we should loo6, if not to natural law and the will of GodC +he truth lies in

what wor6s, in the validation of e8#eriences, not in the abstract reuirements of ideolo"ical lo"ic,% says5letcher. +he #ra"matic le"al mind rushes to re3ect moral e8tremes in favor of some va"ue standard of what is

"ood for everybody, all thin"s considered.%

+ruth lies in what wor6s.% +his is the (merican virtue #ra"matism? whatever wor6s is "ood and true. 2t is

the re3ection of natural law, the re3ection of morality, and the re3ection of +ruth. 2t is in"rained in the (merican

le"al and #olitical systems.

+he #ra"matist tells a man to thin6 what he must thin6 and never mind the (bsolute,% notes G..

!hesterton inOrthodoxy.But #recisely one of the thin"s that he must thin6 is the (bsolute. +his #hiloso#hy,

indeed, is a 6ind of verbal #arado8. 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.%
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7ra"matists deni"rate the natural law a##roach but nevertheless often a##eal to a hi"her% law, whether

euality, feminism, "ay ri"hts, or some other ri"ht,% when blud"eonin" those who res#ect the natural law. 7ure

#ra"matism encoura"es any strata"em in the service of ma6in" an ideolo"y succeed. +he ideolo"y 3ustifies the

means. ( #ra"matism that refuses to ac6nowled"e the natural law results in laws that sometimes conform to the

natural law, such as laws a"ainst murder and ra#e, and that sometimes dont, such as our laws on abortion.

2nlanned arenthood !" Casey, 0;0 &.'. HKK D1::F the 'u#reme !ourt e8#lained its contrace#tion and

abortion decisions thus these matters, involvin" the most intimate and #ersonal choices a #erson may ma6e in

a lifetime, choices central to #ersonal di"nity and autonomy, are central to the liberty #rotected by the

5ourteenth (mendment.% (nd then (t the heart of liberty is the ri"ht to define ones own conce#t of e8istence,

of meanin", of the universe, and of the mystery of human life.% +he !ourt trotted out the #assa"e a"ain in ;;K

inLawrence !" Texas, 0K: &.'. 00H, to rationali)e constitutional #rotection for anal sodomy between men.

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+he mystery of life #assa"e reflects #ost-modernist thou"ht We create our own reality. 2ts "ibberish a fi"

leaf that hides and tries to ma6e more #alatable the !ourts iet)schean im#osition of its will on the less

#owerful. +he Justices were #ra"matic they wanted to le"ali)e abortion and homose8ual sodomy, so they did

what it too6.

ot all #eo#le are as articulate or as o#en as 5letcher about the dan"er that the 7o#e, the !hurch, the natural

law, and, indeed, +ruth, re#resent to them. But some are even blunter.

2nA#orting AmericaD1:I:F, Bernard athanson details the successful efforts of Lawrence Lader and

himself, two Jews from ew =or6 !ity, to le"ali)e abortion in ew =or6 in the late 1:


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e8cer#ted and ada#ted in Boston !olle"e @a"a)ine,'eth @eehan documents that Richard !ardinal !ushin" of

Boston facilitated the re#eal of @assachusettss ban on contrace#tives in the mid-1:


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(merica seems to treat !hurch teachin" on contrace#tion as an embarrassment, an atavistic holdover from

medieval times.

We have "otten "un-shy,% !ardinal +imothy 9olan told the Wall 'treet Journal, in s#ea6in" with any

amount of co"ency on chastity and se8ual morality.% $e dated this diffidence to the mid- and late 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. 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.

9oesnt the church have a #roblem conveyin" its moral #rinci#les to its own floc6C% as6ed the )all Street

*ournal. 9o we everO% re#lied !ardinal 9olan with a hearty lau"h.% 2 sus#ect it was a nervous lau"h, "iven the

#ossibility that the bisho#s silence may ma6e the hereafter too hot to handle% for them.

+he >bama (dministration, not the !hurch, wants the battle"round to be contrace#tion A the so-called war

a"ainst women. 9own#layin" moral #rinci#les, the bisho#s insist the battle is not about access tocontrace#tion,% nor about bannin" contrace#tion, when the &.'. 'u#reme !ourt too6 that issue off the table

two "enerations a"o.%&nited for Reli"ious 5reedom, ( 'tatement of the (dministrative !ommittee of the

&nited 'tates !onference of !atholic Bisho#s, @arch 1/, ;1.

otre 9ame 7resident 5r. John Jen6ins used a similar but more obseuious tac6 to e8#lainthe universitys

lawsuit a"ainst the >bama (dministration over the mandate

Let me say very clearly what this lawsuit is not about it is not about #reventin" women from havin"

access to contrace#tion, nor even about #reventin" the Government from #rovidin" such services.@any of our faculty, staff and students A both !atholic and non-!atholic A have made

conscientious decisions to use contrace#tives. (s we assert the ri"ht to follow our conscience, we

res#ect their ri"ht to follow theirs. (nd we believe that, if the Government wishes to #rovide such

services, means are available that do not com#el reli"ious or"ani)ations to serve as its a"ents.

'o the !hurch in (merica focuses not on morality but on lobbyin" and coalition buildin" and lawsuits. But

the >bama (dministration wants to focus on contrace#tion. WhyC Because, li6e (rchbisho# 9olan, it 6nows

!atholics are #oorly catechi)edC Because it thin6s !atholics li6e 5ather Jen6ins dont care whether #eo#le formtheir consciences #ro#erly or en"a"e in sinful activityC Because, li6e Lader and athanson, 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

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http://online.wsj.com/article/SB10001424052702303816504577311800821270184.html?mod=WSJ_Opinion_LEADTophttp://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religious-freedom-and-hhs-mandate.cfmhttp://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religious-freedom-and-hhs-mandate.cfmhttp://president.nd.edu/communications/a-message-from-father-jenkins-on-the-hhs-lawsuit/http://online.wsj.com/article/SB10001424052702303816504577311800821270184.html?mod=WSJ_Opinion_LEADTophttp://www.usccb.org/issues-and-action/religious-liberty/march-14-statement-on-religious-freedom-and-hhs-mandate.cfmhttp://president.nd.edu/communications/a-message-from-father-jenkins-on-the-hhs-lawsuit/


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>+ ( &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, accord with the common "ood, and be ratified throu"h le"al norms

consistent with the ob3ective moral order.% 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. 2n

contrast, todays (merican le"al and #olitical system in #ractice denies the e8istence of an ob3ective moral

order. 2n the (merican system, conformity of the #ositive law to the natural law now occurs ha#ha)ardly, by

ha##enstance. ( mandate that a reli"ious institution A or, indeed, any institution A must #rovide insurance

covera"e for contrace#tion or abortion does not conform to the ob3ective moral order, while a ban on @ormonor @oslem #oly"amy or a ban on $indu suttee does.

7olitical authority must be "uided by the moral law MandN e8ercised within the conte8t of the moral order.%

%d", K:

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Law in the Ruins.doc