The Problem with Gay “Marriage” Bans

Editorial Comment by Dr. J. P. Hubert

The ruling yesterday by Judge Vaughn Walker in which he overturned California’s Proposition 8 banning homosexual “Marriage” is but another in the long line of those being issued by an American Judicial system steeped in Legal Positivism (Pragmatism). As I wrote several years ago for the Intellectual Conservative, December 2005 in “The ‘Fruits’ of Legal Positivism: Utilitarianism in Action”:

“For over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law based understanding of its role in constitutional interpretation…That construct utilized the constitution as written, relying on the so-called original intent or a strict constructionist interpretation as a template upon which the tenets of the Natural Law were traced. For almost 100 years, the USSC has embraced Legal Positivism, in which no immutable moral principles are recognized, including the first and second principles of the Natural Law (do good/ avoid evil and treat your neighbor fairly).

…The only unifying principle allowed to permeate legal positivism is personal autonomy or choice, itself an expression of ‘survival of the fittest’ (read selfishness) which has become the new judicial rallying cry. Thus it follows that virtually any new social/cultural experiment can be codified into law by the Supreme Court even if such a law could never be passed by the representatives of the people who still adhere largely to the principles of the Natural Law and the Judeo-Christian Ethic (e.g. Proposition 8 banning homosexual “marriage”). Why? Because the court is simply not restrained or controlled by the observance of any moral absolutes.

…Legal Positivism or pragmatism -- developed by Oliver Wendell Holmes and those who followed… is based entirely on a Secularist worldview in which the controlling moral philosophy is utilitarian… American Jurisprudence is now held hostage to an alien judicial philosophy based not on the Natural Law or the Judeo-Christian ethic, but rather on the post-Enlightenment philosophies of Mill, Hume, Rousseau, Locke, Hobbes and Darwin.

Legal Positivism reduced to the lowest common denominator is the application of Darwinian Natural Selection (survival of the fittest) to a constantly changing moral code based on personal preference or “choice” in the realm of the civil law. Under this rubric, moral absolutes do not really exist, since morality in general is determined by what is socially acceptable at a given period of time in history…

…it is assumed that if Congress passes a law, the USSC has the right to determine whether it is constitutional and morally permissible, as if the two were synonymous. It is simply presumed a priori that nothing which the court could declare constitutional for whatever reason could ever be immoral, despite obvious examples to the contrary. The entire process becomes an exercise in debate over second order questions without any first order foundation. Put differently, there is no transcendent -- in the metaphysical sense -- referent by which the moral licitness of a given law can be compared. Laws become whatever society at a given point in history wants them to be. The function of the Supreme Court then becomes one of “divining” what Americans presently think, feel or want, what common assumptions they have become accustomed to making and so on. Then a majority of Justices create a way or tactic -- whether logically coherent or not - -to justify the conclusion which they have already made. In the process, to a greater or lesser degree they attempt to demonstrate how the Constitution actually contains the warrant for their findings.

…the moral licitness of any law is a totally separate question from whether it is constitutional; irrespective of whether it is or is not consistent with “original constitutional intent.” The original intent of a given law may always have been morally illicit from the perspective of the Natural Law, the Judeo-Christian Ethic, and the common morality. It may even have been immoral by virtue of any other applicable moral philosophy -- even utilitarianism. For example, slavery was arguably immoral by the Natural Law/Judeo-Christian Ethic, but yet was not originally considered unconstitutional. It is difficult today for most people to believe that African-Americans were once considered property. Slavery was codified in law, however, because even from the beginning of the American experiment, the civil law was not based entirely on the Natural Law. Utilitarian moral thinking began very early to insinuate its way from the Continent into the colonial experience.

We are left to believe, according to the tenets of legal positivism, that during the period in question, slavery was permissible and constitutional because it was commonly accepted, economically based and people were accustomed to it. At a later date, the “situation” changed and a different set of assumptions obtained. It also means that if in the future it becomes expedient for slavery to once again exist, the Supreme Court could again reverse itself and legalize slavery based on race, religion, class or any other criterion thought to be of utility. The reason this is so is that there are no absolute moral proscriptions which undergird the civil law according to the rubrics of legal positivism…

…It is simply moronic to believe that constitutional law exists without a pre-philosophy, a set of fundamental assumptions or overarching principle(s). Every discipline has a set of so-called pre-philosophical assumptions, also known as first-order philosophical questions/presumptions. For example, the question of what the law is in a metaphysical sense actually involves a first order philosophical question and is not a legal question at all. Every Senator who serves as an interlocutor on the Judiciary Committee and each USSC nominee who appears in the confirmation process have a “pre-philosophy” with regard to what the civil law should be grounded in, as well as a specific judicial/constitutional philosophy (e.g. original intent vs: an evolving constitutional standard). It unfortunately has become acceptable to simply deny this (as Judge John Roberts did at his confirmation hearing), as if the Supreme Court is able to divine the proper ruling virtually out of “thin air” without regard to first principles.

Social Darwinism Replaces Transcendent Truths

What we have done then as a culture over the past half century is to codify in the civil law, a legal system which is not only productive of illogical and contradictory rulings, but one which is totally arbitrary and grounded in the principles of social Darwinism rather than immutable truths. Decades ago it was incumbent upon those who understood -- that the USSC was attempting to radically alter the moral philosophical basis which had been foundational to the U.S. constitutional system -- to rise up and object in the strongest terms rather than remaining mute by “playing the game.” Had this been done in the mid-twentieth century, the present deceptive system for confirming a Supreme Court Justice would not exist. The result of failing to do so has meant that the entire process is now nothing more than a pretense in which interested candidates must either actively or passively agree to be involved in evil as a means to the potentially good end of being placed on the Supreme Court, the very definition of Utilitarianism. Such a circumstance is incompatible with the truth that should be at the foundational center of justice and is not simply a matter of the Supreme Court legislating from the bench. Legislating by the rule of the majority in a way which is contrary to the Natural Law is also immoral. Rather than fairness, consistency and equality before the law, the present system is capricious and inherently unjust. It typifies a “might makes right” mentality achieved either through a tyranny of the majority at the ballot box, the appellate court or Supreme Court level as demonstrated in 5-4 decisions. Truth is the very last thing which is served under such a system and once truth is sacrificed at the alter of expediency, justice is vacated as well.

With respect to the USSC, the issue is not judicial activism alone (the court usurping the role of the legislature), nor is it a failure to adhere to stare decisis, original intent or a Strict Constructionist methodology. It is the failure of both the legislative and the judicial branches (but especially the USSC) to adhere to the immutable principles of the Natural Law as codified in the Judeo-Christian Ethic. Until this issue can be discussed vis-a-vis the foundational philosophical problem that it is; rather than the straw man indictment which labels it “a private or deeply held religious belief,” our laws will remain unjust and no one in America will be safe from tyranny. The fact that our laws are no longer based on the common morality which flows from the Natural Law as historically contained in the Judeo-Christian ethic [and later common law] is ultimately a philosophical not fundamentally religious problem. Once this is widely recognized we can then make progress in reforming the U. S. Supreme Court, something all true conservatives should be interested in.” read original article HERE…

No Agreement on Right and Wrong:

A ban such as California's Proposition 8 on homosexual “marriage” presupposes of course that the question is a judicial or elective one rather than foundationally a moral philosophical one. Even more fundamentally; by what set of criteria are Americans to judge the moral licitness of issues of public policy? In contemporary America there are none. In fact there is absolutely no agreement at all among the ruling class in the United States about what is morally right or wrong. These kinds of questions are simply never addressed. With the elite's use of the Hegelian dialectic in which the populace is being force-fed a lethal dose of right/left diatribes by the corporate fawning media, there would be too much polarization for there ever to be agreement on societal moral (immutable) norms.

Human Nature is Fixed:

Rather than utilizing a natural law based paradigm in which human anthropology is assumed to be fixed and in which the “ought” (of moral philosophical questions) becomes necessarily circumscribed by the “is” of human nature, legal pragmatism assumes that human nature is elastic, that there are no immutable moral norms and that moral questions are really not moral in any actual sense at all. This is the sine-qua-non of utilitarian legal pragmatism. From the perspective of legal pragmatism, the first order question of how one determines right or wrong is simply irrelevant. Most Americans would be surprised to find out that while they must live as if there were fixed moral norms the legislature and the judiciary do not.

According to the Utilitarian calculus undergirding the legal pragmatism currently in vogue, the judiciary and the legislative avenues exist to normalize/sanction whatever behavior is desired by a suitably powerful subset of the populace. At the present time, it is popular to normalize personal behaviors which are contrary to the natural moral law only because a powerful vocal minority of Americans wishes that to be the case. Under this rubric questions of right and wrong reduce to the vocalized desires of politically powerful interest groups which of course change from time to time and place to place.

What About the Common Good?:

The argument which appears to have won the day is that it is unfair or unjust for some persons to be able to derive the benefits of the married state and not others simply because of their personal sexual habits/preferences. It is not enough that individuals are allowed to behave in virtually any way they desire in the privacy of their own homes even if doing so is contrary to the natural moral law--which is nevertheless legal. No consideration has been given to the ways in which the common good of society will or will not be affected by the broad legalization of gay “marriage.” Advocates cite the short-term absence of social problems since gay marriages were first allowed in California as if long-term follow-up data is unnecessary in adequately evaluating the results.

What are the Goods of Marriage?:

No discussion has ensued regarding what the "goods" of marriage actually are--the primary purpose of which is the producing and rearing of children--or the sociological data which establishes that children are best raised in 2 heterosexual parent families. Obviously the fact that the US allows divorce on demand suggests that the primary purpose of marriage was not considered in fashioning contemporary divorce laws. For similar reasons, there is a movement to normalize childhood adoption by homosexual couples and single adults. This is in contradistinction to the fact that society has a vested interest in ensuring that the common good is enhanced.

What is in a Word?/Utopian Disreality:

Homosexual "marriage" and adoption is inherently incapable of contributing to the common good as that term has been traditionally used due to the incompatibility (lack of complementarity) which exists in the human nature's of same-sex couples. While various legal "arrangements" can be entered into by same-sex couples as they admittedly are by heterosexuals who contract civil (non-covenant) marriages, they can never be marriages in the traditional (where marriage symbolizes the coming together of male and female to produce another, the triad of which represents an image of the Sacred Trinity) sense where anatomic, physiologic and genetic factors are prerequisites. To arbitrarily define them as such in the law is to deny the very nature of what it means to be human, male and female. This reality will seem harsh to many but epistemologically it is undeniable.

Advocates of same-sex "marriage" if honest will be forced to admit that they desire to engage in such "arrangements" despite the inherent dis-reality involved. Doing so is to engage in positing a false reality, a utopian metaphysical unreality if you will, a worldview based not on the truth of what is but on the falsehood of what is not. In that regard the USSC (e.g. Justice Kennedy) has written essentially that each citizen is entitled to establish their own reality as if a human being has the power to determine metaphysical truths anymore than those of a physical nature as determined by universal physical laws. No one would posit the latter, but the former is currently being advanced by the USSC. The fact that Justice Kennedy was not harangued by the academic establishment for positing such an irrational concept should suffice to document that legal pragmatism has overtaken the US judiciary at least at the level of the USSC.

The American judiciary utilizing the theory of legal pragmatism is engaged in making legal what is proscribed by the natural moral law in so doing hoping to alter the “common morality” in such a way as to baptize it as if its advocates embraced the natural moral law and the notion of immutable moral norms which they of course do not. This is hypocrisy of the first order (first deny the natural moral law and once the civil law is changed behave as if it exists since whatever is legal is assumed to be moral).

What is the Ultimate Limit?:

Why should anyone believe that homosexual “marriage” is any more acceptable than any other currently illegal and immoral practice such as polygamy, pedophilia, pederasty, bestiality? Surely there are a not negligible number of individuals who desire to partake in these activities based on the crime statistics which are available--and with the marked deterioration in moral climate in the West there are likely to be more not less as time marches on. All of these practices however are contrary to the natural moral law as is homosexual practice and
homosexual “marriage.” Can we not assume that an equally powerful subset of our population will eventually advocate for the changing of these laws as well, and on what basis could it be denied if individuals came forward who wished to engage in these activities, label them marriage and derive marital benefits. According to the judicial theory of legal pragmatism any of these are worthy of being made legal for the exact same reasons being utilized to justify gay “marriage.”

The reality is that Americans simply refuse to engage in a debate about how to determine right and wrong. The unstated reality is that if a practice or behavior can be made legal, it is immaterial whether it violates the natural moral law or the wishes and belief structure of a majority of citizens. All that matters is that the special interest group who desires the change is satisfied. We prefer to settle all such issues by making laws which either allow or disallow certain practices based upon the exercise of raw political power alone. This is a formula for endless discord and polarization as nothing is ever definitively settled. It is nothing more that “might makes right” a form of judicially insured tyranny.

California’s Proposition 8 is an attempt to solve what is ultimately a moral philosophical problem through the use of the ballot box and the courts. The current trajectory is that homosexual marriage will eventually be legalized in all 50 states and codified in federal law. Given that the judiciary has embraced legal pragmatism, no other outcome is logically possible and therin lies the problem for opponents of gay "marriage." Americans wishing to prevent it will need to wage the battle where it actually belongs on the level of morality, a return to natural law based jurisprudence and not the law as understood through the prism of legal pragmatism. Unfortunately, that ground was surrendered long ago.

Neo-Conservatism The New “Stealth” Order / World View

This essay is reproduced by special request of a reader.

By: Dr. J. P. Hubert

A new “stealth” worldview has become popular among Secularists in the United States. It is referred to as Neoconservatism[1] and has been gaining influence for over 25 years in the wake of the discord and unrest associated with the 1960’s-1970’s and the Viet Nam War.[2] The original features of Neoconservatism are found below:

Table 1. 6 Propositions of Neoconservatism (First Generation)*
1. Theory of History- Evil exists and one must not shrink from one's duty.
2. Power- No substitute for it, especially military might. Power is Salvation.
3. America must be a Global leader- Creating a peaceful World requires "power." America is exceptional.
4. Respect for Authority is paramount- requires a “Religious” population best promoted through “traditional values.”
5. Constant Crisis Mode is necessary- the situation is always urgent and the need for action compelling. Disaster is always looming.
6. Leadership is the Antidote to “Crisis”- Leaders must Exercise power.
*Bacevich, Andrew J. The New American Militarism: How Americans are Seduced by War, New York: Oxford University Press Inc., 2005.

The author penned an essay originally available at TCR now at Lulu.com which outlined the two major worldviews which vie for ascendancy in the West; Secularism vs: Traditionalism.[3] It is fair to say that much of the Secularist agenda is either actively or passively embraced by the secular leaders of the neoconservative movement. Tragically many “hangers-on” including Evangelical Protestants and neo-conservative Catholics have yet to recognize that they have so to speak “hitched their wagons” to the Secularist camp by embracing the policies of the neoconservatives now in power, including the elites of both political parties. It is ironic indeed that neither has yet to appreciate the degree to which the neoconservative agenda is incompatible with their Traditionalist worldviews. In fact it is also fair to say that virtually all of the “hot-button” issues of our day are either significantly impacted or controlled by neoconservative ideology including American foreign and domestic policy. At its core, Neoconservatism embraces a Darwinian (survival of the fittest) mentality (epistemologically, metaphysically and morally) in which the historical reality of evil is recognized as foundational, the answer to which is overwhelming power (military and economic) and deception[4] of the masses.

Neo Conservatism and Morality:

In the moral realm for example, neoconservative thinking embraces the utilitarian philosophy of Jeremy Bentham and John Stuart Mill in which the “ends” sought are allowed to justify the “means.” The author has written extensively as have many other moral philosophers who employ the Classical Aristotelian/Thomistic approach that utilitarianism is a completely inadequate moral philosophy for the solving of complex moral problems. The results obtained are almost always contrary to the Natural Law and Catholic moral Theology as promulgated by the Magisterium. The following represents a summary in table form taken from one of the author’s formal presentations.

Table 2. Utilitarianism*
1.[Ends Justify Means] in pursuit of pleasure or “choice”. [Jeremy Bentham and John Stuart Mill as part of British Empiricist movement in wake of Descartes “turn to subject” and abandonment of Aristotle’s “middle road” epistemology and his view of science in exchange for Newton’s mechanistic Cosmology.]

2. Non-moral theory in which the “greatest good” (aggregate pleasure) or benefit is sought for the greatest number, reduces to rabid notions of individual autonomy. Pragmatic, consequentialist, and detached from people as persons in the fullest sense of that term. Totally non-functional in practice unless Materialism is assumed.

3. Lacks explanatory power required for solving complex ethical dilemmas.

*Repudiated by JPII in Veritatis splendor under rubric of “Proportionalism” and “Consequentialism” Moral absolutes are rejected and Rom, 3: 8 is violated. Classical means/ends analysis is repudiated as is classical tripartite structure of moral act analysis.

Neoconservatism and the Law:

Utilitarianism frequently involves an absolute repudiation of the Natural Law in favor of the principles of the Enlightenment in that there are no fixed (Transcendent) truths which must be recognized or served. In fact this reality explains much of what functions as American neoconservative foreign and domestic policy including its approach to the U.S. constitution and the judiciary.

For example, neoconservatives pay lip service to the constitutional principle of “original intent” but in practice embrace legal (pragmatism) positivism (ultimately a Darwinian concept from its inception)[5] rather than grounding the civil law in the Natural Law and Divine Revelation as the Founders did. This means that all civil laws are changeable based on evolving social and moral standards. Thus we had President Bush’s nomination of Judge John Roberts for Chief Justice of the U.S. Supreme Court. Roberts is a legal pragmatist tactician of superb ability who makes no bones about rejecting the principles of the Natural Law and Divine Revelation in functioning as a Judge. He recognizes no overarching (Transcendent or Touchstone) principles which are always and everywhere true. He stated clearly before the Senate Judiciary Committee that his judicial approach will be to consider the individual case before him the so-called “law of the case” with its legal precedent (Stare Decisis) first and foremost in his mind, irrespective of whether it violates the common morality and the Natural Law. Only thereafter will he consider other issues such as “workability” fairness and the like which might be considered for example in potentially overturning a standing or “settled” law.

Robert’s view of human anthropology (based on his writings and Senate Judiciary Committee testimony) is Darwinian/neo-conservative as well rather than traditionalist. He specifically denies being influenced by any “personal” (code for religious or moral) deeply held beliefs when functioning in his role as a jurist, making him a “secularist” in practice. Logic dictates that either he was honest in his testimony and therefore has no qualms about civil laws which contradict the Natural Law and Divine Revelation such as abortion, or he was purposely dishonest and evasive in order to be confirmed (a case of the “ends justify the means” that). In either case, he embraces utilitarianism rather than classical moral philosophy/Catholic moral theology and we can expect little help from him in reversing Roe v: Wade.

Neoconservatism and Economics:

In the economic realm neoconservatives are also Darwinian.[6] Most are devoted to the unbridled free market capitalism of Adam Smith where brute “market forces” are allowed (unfettered) to determine the landscape.[7] This system inherently predisposes to “haves” and “have-nots” a kind of bi-polar class system; the rich and the poor with very little long-term middle class existence or stability (where a tripartite class system insures a healthy middle class as is seen in “managed” capitalism sensitive to the concepts of solidarity and subsidiarity). The controlling economic gestalt as in foreign policy is “winning (overwhelming others) by the use of superior force and power” amounting to what is essentially a zero-sum game. Thus we see ever increasing consolidation of companies into mega-corporations and the creation of overpowering monopolies, case in point the large oil companies which engaged in “price-gouging” due to the effects of Hurricane’s Katrina and Rita. In order for some to become unconscionably rich, others must be poor, since there are only a finite number of resources available. Neoconservatives have absolutely no problem with this as is evidenced by the Bush administration Secretary of Energy’s comment that the oil companies are doing a good job after the Hurricanes (There profits had tripled in the following year).

As an example of the above, we have in the United States the largest differential worldwide when comparing the yearly compensation of CEO’s of major corporations and that of their lowest respective wage-earners. Catholic teaching holds that both communism and unbridled capitalism are morally evil since they are destructive of basic human dignity. Free Market Capitalism must be “managed” in light of the principles of the Natural Law and be sensitive to the true nature of “man” as created in the Imago Dei in order to be just.[8] Neoconservative economic principles repudiate the Natural Law and thus are largely incompatible with Catholic teaching in the economic arena.[9] This explains why Americans tolerate the consumption and export of pornography in ever increasing numbers. There is absolutely no inhibition when it comes to generating income whether the so called “free enterprise is morally licit or not. The objectification of women and the young is encouraged (as part of inter-state commerce and ever larger profits; both being instrumentalized through seductive television, “bill-board” ads and motion pictures in order to maximize economic growth). All of this is perfectly compatible with Darwinian neoconservative economic policy and rabid unbridled free market capitalism. This is an example of utilizing persons not as “subjects” deserving of basic human dignity and respect but as objects to be used, abused and discarded (even secular Kantian's should cringe).

History:

The history of American Neoconservatism arguably dates to the early 20th century and several academic German/Jewish intellectuals including Professor Leo Strauss[10] who was purportedly a secular Zionist (Professor of Political Philosophy, University of Chicago) the philosophical progenitor of many contemporary public policy elites including several neoconservative Bush administration officials and other members of the Washington establishment in both political parties.[11] Strauss was an avid opponent of modern liberalism having been an admirer of Martin Heidegger and by extension Nietzsche’s philosophy (itself Darwinian).[12] It was later developed by several first generation neoconservatives including Norman Podhoretz[13] (for many years editor of Commentary) and Irving Kristol. Later, in the second generation came Irving’s son William (now editor of Commentary’s “replacement” The Weekly Standard), Michael Ledeen, Robert Kagan, Charles Krauthammer and Richard Perle among others. The following represents a modification of the first generation neoconservative principles outlined above.

Table 3. 5 Propositions of Second Generation Neoconservatism*

1. American Global dominion is benign and other nations agree.
2. Failure of U.S. to sustain imperial status would result in global disorder.
3. Force works and must be used.
4. U.S. Military Supremacy is essential.
5. Idealism not Realism will achieve stated goals. (The Realist policies of Kissinger and Powell must be repudiated).

*Bacevich, Andrew J. The New American Militarism: How Americans are Seduced by War, New York: Oxford University Press Inc., 2005.

Andrew Bacevich has written well of American Neoconservatism;

“The conception of politics to which neoconservatives paid allegiance owed more to the ethos of the Left than to the orthodoxies of the Right. Their ultimate ideological objective was not to preserve but to transform. They viewed state power not as a necessary evil but as a positive good to be cultivated and then deployed in pursuit of large objectives.”[14]
“Their aim was nothing if not ambitious; to reverse the verdict of the 1960’s, to repair the political and cultural damage done by that decade, and ….to restore American power and assertiveness on the world stage.” [15]

It is clear from the above that many neoconservatives were former “leftists” who wished to transform society through revolution. As the Democratic party embraced pacifism and sexual libertinism in the 1960’ and 70’s, neoconservatives moved to the Republican Party with the goal of co-opting what had historically been a political party made up largely of paleoconservatives (traditional conservatives) and isolationist libertarians who eschewed foreign military escapades and “big government” spending. By ingeniously enlisting the aid of Protestant Evangelicals who despised what they viewed as a leftist led disintegration of Judeo-Christian morality and destruction of the military (for them a bastion of traditional values and morality), the neoconservatives succeeded in gaining control of the Republican Party and much of the entire U.S. foreign policy establishment in less than two decades. This was a phenomenal accomplishment by any standard.

It is important to recognize that the Republican Party and much of the Washington power elite are now controlled by neoconservatives. The term is oxymoronic in that there is almost nothing “conservative” about Neoconservatism. It does not wish to conserve anything least of all tradition. It is committed to increasing and projecting economic and military power. Its goal is to “transform” American society and the world along secular neoconservative (Darwinian “survival of the fittest) lines. This necessarily requires the use of a utilitarian “moral” philosophy which everyone should understand and ignore at their peril. Recall that utilitarianism is incompatible with Catholic Moral Theology as promulgated by the Magisterium. See Pope John Paul II’s seminal work Veritatis Splendor (1993) for details including his repudiation of proportionalism, consequentialism etc.

Neoconservatism and Protestant Evangelicalism:

Bacevich cogently writes in his book that Protestant evangelicalism had a major role in increasing U.S. militarism/imperialism dating to the post-Vietnam era (due to its belief that the U.S. needed to be strong militarily in order to protect Israel against any and all aggression [a result of their pre-millennial dispensationalism] which is part of their understanding of the "end-time" tribulation scenario and their belief that Armageddon is imminent).[16] He argues that the secular “Neo-cons” teamed up with the Protestant Evangelicals to take over the Republican Party recognizing in them a powerful group they could co-opt for their plan to use the U.S. military as a tool for foreign “power projection” (domination). The neo-con's wished to bring American [democratic/actually imperialistic] "values" to the entire world through "force" if necessary in order to eliminate potential threats before they materialize as modern day Israel does.[17] This leads inexorably to the Bush Doctrine of preventive/pre-emptive war.[18] Perhaps the sine-quê-non of Neoconservatism as it is practiced today is the projection of American power abroad through use of the all professional voluntary U.S. military. This has also led to what Bacevich terms a growing American militarism/imperialism where the military is increasingly isolated from the public it serves.

Many social/cultural conservatives have wondered aloud why the Republican Party courts their votes at election time only to largely abandon them afterwards.[19] The answer in part can be found in the fact that neo-conservative secularists now completely control the Republican Party and they have teamed-up with Protestant Evangelicals in order to create a winning plurality. Secular neo-conservatives have for over two decades recognized that if they “played-along” with Evangelicals (in their quest to restore “moral values” to the U.S. by using the military triad of duty, honor, country as a template) they could utilize the power it conferred by engaging in an activist/hegemonic foreign policy.[20] In fact neoconservatives are enamored by religion and the fervor it inspires in achieving their goals. Few however are personally spiritually committed preferring to see religion as a sort of balm for the masses. All of this should not but unfortunately does come as a complete surprise to many Evangelicals and other cultural and paleo-conservatives. However, once the election is over, the “lip service” regarding “family and moral values” has been paid and it is back to business as usual (the pursuit of economic and military power), again alienating cultural and paleoconservatives and even some libertarian conservatives. Perhaps the only reason they remain loyal to the Party is due to the ineffectiveness of third party candidacies in the U.S. Needless to say, they derive next to nothing for their loyalty and support.

Foreign Policy:

Turning to the foreign policy initiatives of American Neoconservatism including the use of warfare in general as an extension of U.S. power and specifically the Iraq War, it is useful to engage in a formal moral analysis utilizing the “3” classical elements which are applicable to every moral decision. For a classical moral (philosophical) analysis of the so-called “preventive/pre-emptive Iraq War as a function of neoconservative foreign policy, the following is presented which is borrowed from the author’s “PowerPoint” presentation on a speech entitled: “Justice and Freedom for the Human Embryo” in which a similar moral analysis was carried out.

Table 4. 3 Classical Components of a Moral Decision*
1. The OBJECT freely specified [Chosen] (what it’s about),
proximate “end” (Species).** Also called “MEANS.”
2. The INTENT, motive or further “End” (Genus).
3. The CIRCUMSTANCES or situation.

*May, William E. An Introduction to Moral Theology. Second Edition, Huntington Indiana: Our Sunday Visitor Publishing Division, 2003, pp. 170-174. Aquinas held that all “3” must be licit in order for the moral act to be justified (S.T. 1-2, 18, entire question).
** Pope JPII, Veritatis splendor, 71-81, 1993. Specifically #78 “The morality of the human act depends primarily and fundamentally on the “object” rationally chosen by the deliberate will, as is borne out by the insightful analysis, still valid today, made by Saint Thomas.” (Referencing Summa Theologiae I-II, q. 18, a. 6.)

It is readily apparent that there exist “3” classical elements which must be considered in each and every moral decision the object freely chosen (means) the intent (motive) and the circumstances. All “3” must be correctly specified and applied in order for the moral decision to be valid. With respect to the decision to engage in a preventive/pre-emptive war in Iraq, the elements are properly depicted as follows:

Table 5. The “3” Components of a Moral Decision in the Preventive/Pre-emptive Iraq War*

1. Object freely specified, (Chosen), or Proximate “end”, also called “MEANS.”
Offensive Military “First Strike Lethality” to effect Iraqi Regime Change [Neo- Cons substitute “spreading democracy” and American “values” in the Middle East here] which is incorrect/deceptive in that accomplishing it requires a morally illicit [violent] “means” (technique or method) for dubiously “insuring” American security (the intent). The objective freely chosen is Offensive “First Strike Lethality” not “spreading democracy” in the Middle East.

2. Intent Motive or Further End.
Insure American Security and limit or eliminate Terrorism

3. Circumstances of Situation.
Terrorism and Reduced Security is the 21st Century Reality. Was there WMD in Iraq prior to invasion? (Analysis assumes a pre-invasion perspective).

The above demonstrates utilizing classical Aristotelian/Thomistic moral philosophical principles why “elite” neo-conservative reasoning is in error with respect to waging the Iraq War. The actual “means” employed are evil that is morally illicit since they involve choosing to inflict “first-strike” offensive lethality upon a perceived enemy (contrary to the Just War Doctrine which allows for legitimate defense only and to Rom. 3: 8). “Spreading Democracy” while potential valuable, cannot be accomplished “defensively” by force. The two concepts are contradictory. Democracy can be proposed but not imposed. “Spreading Democracy” must be done passively (peacefully) to be morally licit. Since not all “3” of the elements in the moral triad above are valid, the conclusion is that a preventive/pre-emptive Iraq War is unjustified morally.

Some neoconservative moralists have argued that the neoconservative “Bush Doctrine” of preventive/pre-emptive war is an example of “Double Effect.” Therefore, it is necessary to review the classical requirements of same depicted below.

Table 6. “Double Effect” in Practice*
(Could Preventive War be “Double Effect”?)

1. The directly intended object of the act must not be intrinsically contradictory to one’s fundamental commitment to God and neighbor (including oneself) i.e. it must be a good action judged from its moral object.
2. The intention of the agent must be to achieve the beneficial effects and to avoid the foreseen harmful effects as far as possible (i.e. must only indirectly intend the harm).
3. The foreseen beneficial effects must not be achieved by the foreseen harmful effects and be not achievable without them.
4. The foreseen beneficial effects must be equal to or greater than the foreseen harmful effects.
5. The beneficial effects must follow from the action at least as immediately as do the harmful effects.

*Principles of Double Effect from Finnis, John. Moral Absolutes: Tradition, Revision and Truth, (Washington D.C.: Catholic University of America Press, 1991).
Answer: NO, #’s 1, 3, 4 & 5 are violated by engaging in Preventive/Pre-emptive war.

As can be readily appreciated, preventive/pre-emptive war violates # 1 above since it is always and everywhere wrong to purposely wage offensive war (by the tenets of the Just War Doctrine and sacred writ (Rom. 3: 8) that one must never do evil that good may come of it). In #2 above neoconservatives argue that they do not directly intend to harm innocents since they now utilize “smart weaponry.” However, they do intend to lethally harm the enemy combatants offensively rather than defensively by employing aggressively lethal offensive “means” through use of their weapons and they do kill innocent non-combatants as a matter of routine which is completely predictable and knowable in advance. One could give them the benefit of the doubt here regarding the intent not to harm innocents, however, the destructive nature of the “smart” weapons and the regularity of large numbers of innocent combatant deaths (in the thousands in Iraq) makes this difficult. In # 3 above, it is clear that the potential benefit of installing a friendly “democratic” regime in Iraq is had only by means of the foreseen harmful effect of invasion, thus violating it. Number 4 has been violated in that the harmful effects in Iraq are horrendous by any conceivable standard and for the foreseeable future outweigh any potential positive benefit. Number 5 has been violated because the harmful effects have immediately followed the action without significant beneficial effect to date. There can be no advantage to a democratically elected interim government which is unable to provide basic infrastructure and security for its people since it has failed in it duty to govern. In that regard they are worse off than prior to the invasion. Therefore, it is clear that the preventive/pre-emptive war in Iraq is not an example of double effect.

In light of the above, it is now necessary to state clearly that the so-called “Bush Doctrine” of pre-emption/preventive war is fundamentally incompatible with the Just War Doctrine[21] and with Catholic teaching on war as it has been continuously promulgated by the Magisterium. The Just War Doctrine is reproduced here as it appears in the Catechism of the Catholic Church.

Table 7. “Just War Doctrine” (Catechism of the Catholic Church, # 2309)

1. The strict conditions for legitimate defense (emphasis mine) by military force require rigorous consideration. The gravity of such a decision makes it subject to rigorous conditions of moral legitimacy. At one and the same time: \
2. The damage inflicted by the aggressor on the nation or community of nations must be lasting, grave, and certain;
3. All other means of putting an end to it must have been shown to be impractical or ineffective;
4. There must be serious prospects of success;
5. The use of arms must not produce evils and disorders graver than the evil to be eliminated. The power of modern means of destruction weighs very heavily in evaluating this condition.

"The evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good.”[22]

Catholics and the Iraq War

The author is well aware that a significant number of American neoconservative Catholic moralists utilizing the above criteria have concluded that the Iraq War is “just” and compatible with the JWD properly applied. Please see my essay [now contained in my book War, Peace and Terrorism: A Return to Sanity in a Post- 9/11 World now available at Lulu.com] entitled; “The Iraq War: A Tragic Misapplication of Just-War Theory or a Failure of “Intelligence”? for a response and refutation of that position.[23] In that regard the reader is reminded that multiple and consistent Vatican statements were promulgated by the Magisterium in protest of the planned U.S. invasion of Iraq, meaning that despite the high level Vatican visit of Catholic neoconservative Michael Novak on behalf of the U.S. administration, the Magisterium rejected the U.S. argument for preventive war. This means that American Catholic neoconservatives are at odds with the historical/traditional position which the Church has taken on “Just War” as well as the recent reiteration of same by the Magisterium. In fact the neo-conservative attempt (depicted above) to morph legitimate “defense” against aggression into preventive/pre-emptive (offensive) war is tantamount to metaphysical slight of hand that is; sophistry designed to justify a new (neo-conservative) approach to the projection of American hegemony through the use of military power whether recognized by the respective Catholic neoconservatives or not.[24] The result has been an increasingly aggressive imperial foreign policy and a repudiation of Just War Doctrinal principles where offensive use of military force is utilized to advance perceived American “interests” abroad[25] These “interests” too often reduce to simple greed which in the case of Iraq includes American dependence on Gulf Oil for the maintenance of an overly indulgent use of total world resources. Needless to say it is an extremely dangerous course and one which few Americans fully understand.

Unfortunately, some seemingly misguided pro-Iraq War neoconservative Catholic moralists who support the secularist neo-conservative stance on the Iraq War have also argued (apparently on the basis of language in the CCC) that the decision to wage war is a prudential one which is appropriately made only by the civil authorities who bear the ultimate responsibility for the common good (see quotation in Table 7 above).[26] While this is technically true it is only instrumentally so. As this author wrote in another essay:

”In a representative democracy, issues of public policy are debated and subjected to a vote of the citizenry, after which initiatives are enacted primarily through their elected representatives including the President. This cannot be accomplished without the populous being adequately informed and their wishes being known. Thus it is clear that the public has a responsibility for evaluating the moral licitness of any potential war prior to its being waged and after it has commenced. It is vital that the population remain engaged enough to provide the necessary oversight and re-evaluation as war is waged. What may be justified initially may not remain so due to changes “on the ground.” Therefore, the argument that war-making is a prudential judgment of the responsible authorities only is very misleading and results in wrongly absolving from moral responsibility the population in whose name it is waged.”[27]

Tragically many Catholic rank and file “Neo-con's” have “bought into” the entire secularist neoconservative/Evangelical enterprise not recognizing that much of it including the foreign military policy portion of neo-conservatism is contrary to Catholic teaching. It is based on a Calvinist rendering of scripture grounded as it is in the TULIP doctrine the first principle of which is “Total Moral Depravity” that is, since the “fall from grace” human beings are hopelessly lost despite an initial very good Creation. The Catholic position instead is more balanced and holds that human beings are seriously wounded but not totally depraved and continues to see good in the created realm including some good in every human life since all are created in the Imago Dei whether friend or foe, saint or sinner. Calvinist/neoconservative apologists utilize a largely Old Testament (e.g. pro-capital punishment as found in the Pentateuch) understanding of morality which also stresses the concept of total moral depravity thus tending to view the world in a bi-polar way that is; good vs: bad, saints vs: sinners, right vs: wrong, us vs: them. This ironically is actually quite consistent with the secularist neoconservative (Darwinist) view of “might makes right” and the historical reality of “evil” that remains a pillar of neoconservative philosophy (how ironic that most evangelical's detest Darwin and yet many embrace Darwinian (neoconservative) policies).

The Catholic view makes use of the Socratic/Aristotelian/Thomistic synthesis and avoids the post-Enlightenment [a substitute for Christianity] (Mills and Humean) adversarial culture (based as it is in the utilitarian and empirical approach in which no transcendent absolute truths exist). It is worth noting that the U.S. inherited this tradition from Great Britain being that the original Americans and Founding Fathers were direct descendants of the Enlightenment and influenced by the British Empiricist movement. Tragically, most Evangelicals and neoconservative Catholics are apparently unaware of this.[28]

The Catholic position again is more nuanced recognizing that each human being is a work in progress and with sanctifying grace can eventually partake of the beatific vision via a process of continued conversion through the power of the Holy Spirit. Due to their Calvinist hermeneutic, Evangelical neoconservatives often conceive of "offensive" military might as evincing the hand of God at work in favoring a “chosen people.” Andrew Bacevich writes that Evangelical's saw this Old Testament pattern played out again in modern Israel’s “preventive” invasion of Lebanon and their pre-emptive/prophylactic bombing of the Iraqi nuclear reactor in 1981, in which the Israeli’s employed “offensive action” (not limiting themselves to defensive actions compatible with "Just War” doctrine) in order to prevent or avert a perceived threat.[29] Given Evangelical’s (Calvinist) experience with modern Israel’s “successful” preventive attacks, and their belief that the United States represents the “New Jerusalem” the “shining city upon a hill” with a manifest destiny to rule the world until the rise of the revived Roman Empire and the anti-Christ, this Old Testament hermeneutic was readily assimilable to an aggressive (neoconservative) foreign military policy of imperialism or “might makes right.”

Bacevich effectively argues in the author’s estimation that Evangelical’s assent to both Israeli offensive actions signaled for neoconservatives the acceptance of a total redefinition of classic/historical Just War Doctrinal principles (which previously sanctioned only defensive actions).[30] In way of clarification, neoconservatives and their evangelical partners no longer accept "Just War" principles as classically understood and neither does modern Israel. Both have been granted a sort of “chosen” status (what Bacevich refers to as a special dispensation) which renders a strict application of the JWD gratuitous. They have redefined “defense” to include “preventive attacks” based upon a probability calculus that is heavily dependent on “intelligence” factors which have now been shown to be unreliable. Thus it is apparent that well catechized Catholics should have recognized the “Bush Doctrine” as incompatible with the Catholic faith through the use of reason and by the consistent statements promulgated by the Vatican.

Catholic teaching interprets the Old Testament in light of the New and in light of the reality of the incarnated Christ who advocated conversion of heart (soul) as well as peaceful.[31] evangelism (propose the Gospel not impose it). Christ renounced the Old Testament practice of capital punishment when presented with a concrete example in which the old law called for it.[32] Christ also repudiated adherence to the “letter of the law” without proper attention to its “spirit” and redressed the Pharisees and Sadducee's for failing to “practice what they preached.” In HIS very person Christ embodied the progressive arrow of non-violence and mercy (rather than the simple justice of an “eye for an eye”) which followed the march of history from the earliest Patriarchal period to the time of the Roman Empire during which He lived. The Calvinist (false Augustinian) emphasis on Old Testament morality which is integral to Protestant Evangelicalism and is endorsed by secular neoconservatives is therefore contrary to orthodox Catholicism as it has been handed down for almost 2000 years. It would be well for “Catholic” neoconservatives to reflect on this reality.

It is apparent then that the elites who presently control foreign and domestic policy (represented by the leaders of both political parties) in the United States are wedded to a secular worldview in which economic and military power is the paramount goal. Their neoconservative “movement” represents a new stealth 21st century pagan (post-enlightenment) “Secularism.” It is evident that they have shrewdly enlisted many unsuspecting Protestant Evangelicals, and politically conservative “Catholics” as well as dissatisfied paleo-conservatives and libertarian conservatives and independents in their cause. The “movement” is fundamentally at odds with orthodox Catholicism rightly understood. It behooves faithful Catholics to shine the light of transparency on what is increasingly an immoral enterprise.

NOTES:

[1] Neoconservatism has 6 basic tenets in its original form, 5 according to the second generation of neoconservatives now in power. It bears very little resemblance to classical (Paleo) conservatism which favored conservative social, economic and foreign policy. Neoconservatives favor an aggressive foreign policy which utilizes military power to spread American “democratic” values and only tacitly supports conservative social and cultural policies for politically expedient reasons, such as its embracing of the “values” of Protestant Evangelical's and like-minded neoconservative Catholics. It embraces large budgets particularly in the service of military spending in order to insure the ability to project American power abroad. See http://en.wikipedia.org/wiki/Neoconservatism_(United_States) for further details; See also: Irving Kristol, “The Neo-Conservative Persuasion: What it was, and what it is.” The Weekly Standard, Volume 008, Issue 47, August 8, 2003; Irving Kristol. Neoconservatism: The Autobiography of an Idea. (New York: The Free Press, 1995) .
[2] Interestingly enough, neoconservative ideas now permeate both Democrat and Republican Parties and are promulgated by adherents of each. Thus irrespective of which Party controls Congress or the Executive Branch, neoconservative ideas prevail.
[3] See my “The Rise of Secularism and the Contemporary Culture War” formerly at TCR http://www.tcrnews2.com/genworld.html now at Lulu.com.
[4] Jim Lobe, “Leo Strauss' Philosophy of Deception”, AlterNet. May 19, 2003 at http://www.alternet.org/story/15935/
[5] J.P. Hubert MD FACS “The Rise of Secularism and the Contemporary Culture War” at Lulu.com
[6] In contradistinction to paleoconservatives who while economically competitive had a basic historical commitment to the Judeo-Christian ethic, including fixed notions of right and wrong as well as fair-play.
[7] This is obviously incompatible with Catholic social teaching.
[8] This includes a proper balance between solidarity and subsidiarity as well as an equitable distribution of the world’s limited resources.
[9] Occasionally, neoconservatives propose initiatives which are compatible with Catholic teaching both in terms of solidarity and subsidiarity e.g. the Bush administration’s “Faith-Based Initiative.”
[10] Jim Lobe, “Leo Strauss' Philosophy of Deception”, AlterNet. May 19, 2003 at http://www.alternet.org/story/15935/; for details see http://en.wikipedia.org/wiki/Leo_Strauss#Life. [11] E.g. Paul Wolfowitz, former Deputy Secretary of Defense now Head of the World Bank, and Undersecretary of Defense for Intelligence, Stephen Cambone. Other Bush administration officials who are sympathetic to neoconservative views include Secretary of State Condoleezza Rice, Vice President Richard Cheney, and Secretary of Defense Donald Rumsfeld. This list is not exhaustive.
[12] Martin Heidegger, (1889-1976) was a German philosopher, who was one of the developers of existential phenomenology. He was a student of Edmund Husserl, studied Roman Catholic theology and then philosophy at the University of Freiburg, where he became the “founder” of phenomenology. Besides Husserl, Heidegger was especially influenced by the pre-Socratics (rather than Socrates, Plato or Aristotle), by the Danish philosopher Søren Kierkegaard, and by the German philosopher Friedrich Nietzsche. For more information see: http://www.connect.net/ron/heid.html.
[13] Norman Podhoretz. Making It (New York, 1967), Breaking Ranks (New York, 1979), Ex-Friends (New York, 1999).
[14] Bacevich, Andrew J, The New American Militarism: How Americans are Seduced by War, (New York: Oxford University Press Inc., 2005), p. 71. [15] Ibid, p. 70.
[16] This view holds that Christ’s return does not occur until after the Jews (Israel) return to the “promised land” (1948 from their perspective). Purportedly, the eschatological clock is started after a peace treaty is made through the intercession of a powerful world leader (the anti-Christ) which insures the safety and security of the Jews. This begins a 7 year period the first half of which is a 3 ½ year period of “minor” tribulation. It is followed by the desecration of the newly rebuilt Jewish temple in Jerusalem (by the anti-Christ who declares himself God on Earth). It requires that the Jews have effective control of Jerusalem in order to re-build the Jewish Temple in which this occurs. This explains why Evangelicals violently oppose any Israeli/Palestinian solution which deprives Israel of the Temple-mount in Jerusalem. The major period of distress the so-called major or Great Tribulation then continues for the last 3 ½ years until the battle of Armageddon and the literal return of Christ to the Earth after which HE initiates a literal/physical thousand year reign. This scenario is completely incompatible with Catholic teaching on eschatology which among other things denies that Christ will reign physically on earth for one thousand years after HIS glorious return.
[17] Bacevich, The New American Militarism: How Americans are Seduced by War, 2005.
[18] Charles Krauthammer, “The Bush Doctrine,” Weekly Standard, June 4, 2001. [19] Bacevich, The New American Militarism, p. 136.
[20] Ibid, pp. 69-96.
[21] See my “The Iraq War: A Tragic Misapplication of Just-War Theory or a Failure of “Intelligence”? Available as a chapter in my above referenced book at Lulu.com, for a discussion of the Just War Doctrine and ethical implications.
[22] CCC # 2265 p.545 “Letitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm. For this reason, those who legitimately hold authority also have the right to use arms to repel aggressors against the civil community entrusted to their responsibility.” [This should not be taken to mean that citizens residing in a nation state are immune or exempt from a reasoned evaluation of the case for war which in itself would be an abdication of their own sacred responsibility to “do good and avoid evil.” In a representative democracy (Republic) the lack of requisite citizen support for war makes it effectively (practically) impossible for the authorities to carry out, JPHJ].
[23] Ibid.
[24] J.P. Hubert Jr. MD FACS, “Proposal for Solving Iraq/Terrorism Debacle: Return to Legitimate Defense” available in my above referenced book at Lulu.com.
[25] Andrew J. Bacevich, The New American Militarism: How Americans are Seduced by War, (New York: Oxford University Press Inc., 2005).
[26] See Mark and Louise Zwick, “Pope John Paul II calls War a Defeat for Humanity: Neoconservative Iraq Just War Theories Rejected” Houston Catholic Worker Vol. XXIII, No. 4, July-August 2003; George Weigel, “The Just War Case for War” America, March 31, 2003; See for some earlier neoconservative writing by George Weigel, “On the Road to Isolationism?” Commentary 93 (January 1992).
[27] J.P. Hubert Jr. MD FACS, “Proposal for Solving Iraq/Terrorism Debacle: Return to Legitimate Defense” available at Lulu.com as a chapter in my above referenced book.
[28] Note the British and American legal systems are both adversarial rather than Socratic where determining the “truth” is more a function of lawyerly competence then any mutual attempt to reason and arrive at the truth. Facts are what can be admitted into evidence as determined by the judge at the trial court level and become “fixed” as part of the “law of the case.” Courts of Appeals rarely review the original “facts” as they failed to do in the Schiavo case. This methodology is also seen in the debate format Television shows that have featured bi-polar shouting matches in which complex topics are reduced to bi-polar “sound-bites.”
[29] Bacevich, The New American Militarism, p. 133.
[30] Ibid, p.134.
[31] Scripture includes only one example where it appears that Christ became "angry" and could have been perceived as non-peaceful (HIS response to the money-changers in HIS Father’s house).
[32] See John 8: 3-11 for Christ’s rejection of the death penalty for the woman caught in adultery. At the time the letter of the Hebrew Law called for “stoning” the woman to death.

The “Fruits” of Legal Positivism: Utilitarianism in Action

by Dr. John P. Hubert
09 December 2005
First Published by Intellectual Conservative.com

For over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law-based understanding of its role in constitutional interpretation.

Many Americans have wondered about the unseemly charade that transpires whenever a nomination is made to the U.S. Supreme Court. High profile members of each political party make the usual inane comments about the judicial “mainstream” -- whatever that is -- and the need to insure “balance” on the court as if it were the legislative branch. One or the other party usually accuses the other of nominating an “extremist” -- understood as anyone with whom they disagree. It seems as if the object is to nominate a “blank slate” in order to avoid a lengthy and partisan fight. The nominees’ previous judicial opinions academic writings and speeches are “mined” for evidence of unsuitability. The two latest nominees (Chief Justice John Roberts and Harriet Miers) represent this new “blank slate” philosophy in action; both having been referred to as “stealth” selections. Each lacks a public record on the so-called contemporary hot button social issues. This is short-hand for; failing to take a public stance on moral issues foundational to the civil law. In other words, the candidates who are now being nominated to the highest court in the land are individuals who either have no opinions on moral issues as they relate to the law or purposely remained silent despite having them, presumably to position themselves for career advancement. The former suggests moral or intellectual impoverishment, the latter a degree of utilitarian -- ends justify the means -- cunning which frankly is extremely worrisome.

Utilitarian Calculus in Action

The notion that in order to successfully ascend to the U.S. Supreme Court one must purposely (premeditatedly) remain mute at a time when the civil law has never been more adverse to the Natural Law and the principles of the Judeo-Christian ethic is Machiavellian in the extreme. Such a candidate should be accused of being simply untenable.i While demonstrating amazing resourcefulness that individual has also evinced a frightening degree of moral turpitude. Ostensibly, for several decades post-Roe brilliant social conservatives and liberals with an interest in jurisprudence became wise to the nature of the game being played. They were apparently facile enough to recognize that being candid and forthright about their so-called deeply held convictions (code for moral and religious views) was a prescription for professional non-advancement. In typical utilitarian fashion, they did from their perspective the only logical thing -- “played the game.”

Had they applied the relevant Aristotelian or Thomistic moral philosophy rather than utilitarianism (Millsian, Hobbesian, Holmesian), they would have recognized the bankruptcy of employing a morally illicit means in the accomplishment of a potentially good end. Instead of meeting the perfidy head-on, which was obvious and apparent by the latter half of 20th century Supreme Court jurisprudence,ii too many of the best and brightest simply agreed to play by the new rules in which the ends were allowed to justify virtually any means whether morally licit or not.

This new Utilitarian calculus was nothing more than the personal application of a philosophy which had already been embraced in the judicial realm. That philosophy is Legal Positivism or pragmatism -- developed by Oliver Wendell Holmes and those who followed.iii It is based entirely on a Secularist worldview in which the controlling moral philosophy is utilitarian.iv Fundamentally it also means that American Jurisprudence is now held hostage to an alien judicial philosophy based not on the Natural Law or the Judeo-Christian ethic, but rather on the post-Enlightenment philosophies of Mill, Hume, Rousseau, Locke, Hobbes and Darwin.

Constantly Evolving Moral Code

Legal Positivism reduced to the lowest common denominator is the application of Darwinian Natural Selection (survival of the fittest) to a constantly changing moral code based on personal preference or “choice” in the realm of the civil law. Under this rubric, moral absolutesv do not really exist, since morality in general is determined by what is socially acceptable at a given period of time in history. What is verboten today can be made acceptable tomorrow through the ballot box, the courts, or social conditioning. Thus American civil law has held that some human beings may be considered property in one historical period and not in another, or that embryonic human beings or those in-utero are to be considered worthy of protection under some circumstances but in others nothing more than personal property to be disposed of for the sake of expediency when unwanted pregnancy occurs. For example, why it is legal for a woman to kill her unborn child -- and yet if a man kills his pregnant wife, he can be charged with “double homicide” and if convicted sentenced to the death penalty?

Americans should understand that for over 60 years, the United States Supreme Court has progressively departed from what was primarily a Natural Law-based understanding of its role in constitutional interpretation. That construct utilized the constitution as written, relying on the so-called original intent or a strict constructionist interpretation as a template upon which the tenets of the Natural Law were traced. For almost 100 years, the USSC has embraced Legal Positivism, in which no immutable moral principles are recognized, including the first and second principles of the Natural Law (do good/ avoid evil and treat your neighbor fairly). The only unifying principle allowed to permeate legal positivism is personal autonomy or choice, itself an expression of survival of the fittest (read selfishness) which has become the new judicial rallying cry. Thus it follows that virtually any new social/cultural experiment can be codified into law by the Supreme Court even if such a law could never be passed by the representatives of the people who still adhere largely to the principles of the Natural Law and the Judeo-Christian Ethic. Why? Because the court is simply not restrained or controlled by the observance of any moral absolutes such as; “it is always and everywhere wrong to purposely kill an innocent human being.” Rather, the United States Supreme Court has progressively indicated either by formal rule or by refusal to review certain lower court cases, that it is perfectly legal to kill some human beings for reasons of utility/expediency. This is especially true of the weakest and least powerful among us, including the unborn, infirm, disabled or retarded.

Circus of the Absurd

It should not be surprising then, that all manner of contradictory and illogical rulings have emanated from the Supreme Court in the wake of the full acceptance of legal positivism as an over-arching (foundational) judicial worldview. This alone should have been enough to demonstrate its total lack of foundation. But alas it has not been. Instead we are treated to what can only be charitably called the “circus of the absurd,” in which a nominee for the U.S. Supreme Court is paraded before a group of Senate Judiciary Committee interlocutors attempting to discharge their constitutional duty to “advise and consent.” These public displays of intellectual dishonesty disparage the very constitution in whose name they are held. Senators on both sides of the aisle slyly engage in a delicate dance in an attempt to determine who is best able to entice the nominee into divulging what if divulged would lead to their being rejected. One side prosecutes, the other defends. The nominee tries valiantly to sound intelligent, humble and duly respectful without divulging anything of substance. There is simply no chance at all that the nominee will inform the American public of what he/she actually thinks is always and everywhere true, timeless and applicable with respect to the Natural (moral) Law upon which the civil law should be based in order to be legitimate.vi Instead, the nominee may dutifully discuss his/her understanding of “original intent,” will likely refer to the importance of past precedent (stare decisis) and regurgitate the conceptual reasons for which a given law’s precedent could be reversed but avoid like the plague any comments regarding concepts, issues or cases which could conceivably come before the court. This would be laughable were it not so serious. Virtually anything could come before the Supreme Court and often does. The nominee is able to totally avoid a discussion of consequential matters while confining comments to second order largely procedural (trial tactic) questions of interest to lawyers and appellate court judges only.

Stare Decisis, a Convenient Ruse

It is worth reviewing that stare decisis is a concept in the law which literally means “to stand by things decided.” This tired old phrase from the common law is always trotted out at the time of Supreme Court nominations. The idea is that once something becomes decided by the Supreme Court it has become precedent that is in a sense “settled,” such that future courts should show due deference to it as if it is “written in stone.” The concept is “over-hyped,” however, when one looks at the history of the Supreme Court ,which has on numerous occasions overturned precedent in an attempt to either recognize newly identified “rights” or rectify historical “wrongs” (e.g. overturning of Dred Scott v. Sanford, which held that African Americans were property, newly recognized and invented human rights, e.g. Roe v. Wade, which for the first time held that women have a right to unrestricted abortion despite state laws which prohibit same, or Lawrence v. Texas, which found a new constitutional right to engage in sodomy, effectively overturning Bowers v. Hardwick, which was “settled law” and thus should have served as precedent.)vii

Unfortunately however, throughout the confirmation process during which the nominee appears at length before the Senate Judiciary Committee, there will be no discussion of the basis on which legitimate civil laws can be constructed.viii All such first-order philosophical questions will be rejected as “deeply held and personal,” that is, “religious,” rather than foundational or philosophically obligatory. Thus, lawyers and Supreme Court Justices become tacticians lacking in an overarching (organizing principle) or philosophical construct. Yet, in practice there is an organizing principle; Legal Positivism, which is essentially denied due to the fact that such questions are labeled religious and not philosophical, a convenient “sleight of hand” that. This is how a utilitarian judicial philosophy steeped in rabid autonomy has been foisted on the American public unknowingly. Few recognize that it bears no resemblance to the Judeo-Christian ethic which many still adhere to and practice.

Furthermore, it is assumed that if Congress passes a law, the USSC has the right to determine whether it is constitutional and morally permissible, as if the two were synonymous. It is simply presumed a priori that nothing which the court could declare constitutional for whatever reason could ever be immoral, despite obvious examples to the contrary. The entire process becomes an exercise in debate over second order questions without any first order foundation. Put differently, there is no transcendent -- in the metaphysical sense -- referent by which the moral licitness of a given law can be compared. Laws become whatever society at a given point in history wants them to be. The function of the Supreme Court then becomes one of “divining” what Americans presently think, feel or want, what common assumptions they have become accustomed to making and so on. Then a majority of Justices create a way or tactic -- whether logically coherent or not - -to justify the conclusion which they have already made. In the process, to a greater or lesser degree they attempt to demonstrate how the Constitution actually contains the warrant for their findings.

What is totally overlooked in the above scenario is that the moral licitness of any law is a totally separate question from whether it is constitutional; irrespective of whether it is or is not consistent with “original constitutional intent.” The original intent of a given law may always have been morally illicit from the perspective of the Natural Law, the Judeo-Christian Ethic, and the common morality. It may even have been immoral by virtue of any other applicable moral philosophy -- even utilitarianism. For example, slavery was arguably immoral by the Natural Law/Judeo-Christian Ethic, but yet was not originally considered unconstitutional. It is difficult today for most people to believe that African-Americans were once considered property. Slavery was codified in law, however, because even from the beginning of the American experiment, the civil law was not based entirely on the Natural Law. Utilitarian moral thinking began very early to insinuate its way from the Continent into the colonial experience.

We are left to believe, according to the tenets of legal positivism, that during the period in question, slavery was permissible and constitutional because it was commonly accepted, economically based and people were accustomed to it. At a later date, the “situation” changed and a different set of assumptions obtained. It also means that if in the future it becomes expedient for slavery to once again exist, the Supreme Court could again reverse itself and legalize slavery based on race, religion, class or any other criterion thought to be of utility. The reason this is so is that there are no absolute moral proscriptions which undergird the civil law according to the rubrics of legal positivism. One wonders how many Americans realize that the laws under which we live amount to nothing more than personal societal preferences or choices which vary from place to place and time to time. Such a situation is patently absurd.

It is simply moronic to believe that constitutional law exists without a pre-philosophy, a set of fundamental assumptions or overarching principle(s). Every discipline has a set of so-called pre-philosophical assumptions, also known as first-order philosophical questions/presumptions. For example, the question of what the law is in a metaphysical sense actually involves a first order philosophical question and is not a legal question at all. Every Senator who serves as an interlocutor on the Judiciary Committee and each USSC nominee who appears in the confirmation process have a “pre-philosophy” with regard to what the civil law should be grounded in, as well as a specific judicial/constitutional philosophy (e.g. original intent vs: an evolving constitutional standard). It unfortunately has become acceptable to simply deny this (as Judge John Roberts did at his confirmation hearing), as if the Supreme Court is able to divine the proper ruling virtually out of “thin air” without regard to first principles.

Roe: The Legalization of Murder as a Case in point

Ultimately what the court did in Roe was find a poorly reasoned way in which to legalize the indefensible “right” (nothing more than a claim or demand since it is not grounded in the Natural Law) to kill an unborn child due only to its location (within the body of the mother) in space, in order to provide back-up for failed or omitted contraception. The case was founded on the principle of rabid personal autonomyix (unbridled freedom to do as we please with our own bodies) which is the sine-quê-non of Secularist moral philosophy in general and that of legal positivism in particular. Nothing but social convention stops the Court from declaring that “undesirable” human beings (retarded, disabled or otherwise challenged or unwanted) who simply utilize too many economic and other resources -- should be killed in order for the “chosen fit” to preserve their own preferential status and autonomy. Roe v. Wade is an example of a USSC ruling which is without doubt ungrounded in any intellectually defensible principle. It epitomizes the utilitarian approach which is fundamental to legal positivism.

Social Darwinism Replaces Transcendent Truths

What we have done then as a culture over the past half century is to codify in the civil law, a legal system which is not only productive of illogical and contradictory rulings, but one which is totally arbitrary and grounded in the principles of social Darwinism rather than immutable truths. Decades ago it was incumbent upon those who understood -- that the USSC was attempting to radically alter the moral philosophical basis which had been foundational to the U.S. constitutional system -- to rise up and object in the strongest terms rather than remaining mute by “playing the game.” Had this been done in the mid-twentieth century, the present deceptive system for confirming a Supreme Court Justice would not exist. The result of failing to do so has meant that the entire process is now nothing more than a pretense in which interested candidates must either actively or passively agree to be involved in evil as a means to the potentially good end of being placed on the Supreme Court, the very definition of Utilitarianism.x Such a circumstance is incompatible with the truth that should be at the foundational center of justice and is not simply a matter of the Supreme Court legislating from the bench. Legislating by the rule of the majority in a way which is contrary to the Natural Law is also immoral. Rather than fairness, consistency and equality before the law, the present system is capricious and inherently unjust. It typifies a “might makes right” mentality achieved either through a tyranny of the majority at the ballot box, the appellate court or Supreme Court level as demonstrated in 5-4 decisions. Truth is the very last thing which is served under such a system and once truth is sacrificed at the alter of expediency, justice is vacated as well.

With respect to the USSC, the issue is not judicial activism alone (the court usurping the role of the legislature), nor is it a failure to adhere to stare decisis, original intent or a Strict Constructionist methodology. It is the failure of both the legislative and the judicial branches (but especially the USSC) to adhere to the immutable principles of the Natural Law as codified in the Judeo-Christian Ethic. Until this issue can be discussed vis-a-vis the foundational philosophical problem that it is; rather than the straw man indictment which labels it “a private or deeply held religious belief,” our laws will remain unjust and no one in America will be safe from tyranny. The fact that our laws are no longer based on the common morality which flows from the Natural Law as historically contained in the Judeo-Christian ethic is ultimately a philosophical not fundamentally religious problem. Once this is widely recognized we can then make progress in reforming the U. S. Supreme Court, something all true conservatives should be interested in.


Endnotes:

i. What is the chance that an intelligent person has never discussed with anyone or written about the many “hot-button” social issues of the day, particularly one who is well educated in the law? To ask the American public to believe a qualified candidate has such a “blank-slate” is simply incredible.

ii. Legal positivism began to grow in importance in the early half of the 20th century. It is there that the traditional jurisprudence, based on the Judeo-Christian common morality was undermined. See Robert Bork. Slouching Toward Gomorrah: Modern Liberalism and American Decline. (New York: Regan Books, Harper Collins Publishers, 1996), chapter 6. Justices Holmes and Brandeis began legal pragmatism by severing the Natural Law from American jurisprudence. See references below in number 3.

iii. Note that Justices Oliver Wendell Holmes and Louis Brandeis were influenced by J.S. Mill’s essay On Liberty and saw in his discussion of individual freedom or autonomy, a basis for the so-called “right of privacy” which the court progressively drew more and more broadly. For background see Mary Ann Glendon. Rights Talk: The Impoverishment of Political Discourse. (New York: The Free Press, 1991, p. 54. Justice Holmes advocated nearly total separation of law and morality as have subsequent Supreme Courts. Also see Glendon pp. 85-87 for a discussion of the role that Thomas Hobbes and John Austin played as forbearers of the American (Holmesian) approach, (anti-Natural Law stance); See also Oliver Wendell Holmes, Jr., “The Path of the Law,” 10 Harvard Law Review 457, 458-459, 1897 and Oliver Wendell Holmes, Jr., “Natural Law,” 32 Harvard Law Review 40, 41-42, 1918.

iv. See my “The Rise of Secularism and the Contemporary Culture War” at http://www.tcrnews2.com/genworld.html for a discussion of the two contemporary worldviews which vie for control of the public square and the role of utilitarianism in the Secularist worldview.

v. Acts which are per se, and in themselves, independent of circumstances, always seriously wrong by reason of their object (means). See John Finnis. Moral Absolutes: Tradition, Revision, and Truth. Washington, D.C.: (The Catholic University of America Press, 1991), pp. 1-3 For example; all killing of unborn infants as a “means” to an end

vi. The principles of the Natural Law are immutable and applicable always and everywhere whether recognized or not. Failure to observe them always leads to chaos. For an excellent review of Natural Law and Natural Rights see: John Finnis. Natural Law and Natural Rights. (Oxford: Oxford University Press, 2002) paper back edition, pp. 18-32 set out the rationale for the immutability of Natural Law as does C.S. Lewis in his Mere Christianity in which he refers to the immutable principles of the Natural Law as the Tau.

vii. Tony Perkins, “Stare Decisis: (stah-ree duh-sigh-sis) n.” Family Research Council, July 28, 2005. “The 1986 Supreme Court case upholding state sodomy laws, Bowers v. Hardwick, was ‘settled law’ until the 2003 Supreme Court roster, in Lawrence v. Texas, found a constitutional right to sodomy. The 1857 Supreme Court in Dred Scott v. Sanford decided that all African Americans are property and thus not citizens. Would Senators Leahy and Schumer, if they lived in the 1850's, honestly argue that Dred Scott was ‘settled law’? Those who believe in a constantly evolving Constitution might be the very worst people to ask if the law is actually settled on anything. By treating court opinions as though they are permanent law, we become unwitting abettors in ceding legislative powers to judicial officials. More importantly, the questioning of judicial nominees on topics that are very likely to reappear before them if confirmed is unconscionable.”

viii. The closest the Judiciary Committee comes to such a discussion relates to the questions which revolve around the constitutional roles of the Supreme Court vs.: the Legislative branch. The question of what to do if civil law is incompatible with the Natural Law (a concept never acknowledged) is simply never addressed as if such a circumstance is impossible. It is simply “assumed” that the Constitution has come to us from on-high and therefore could not possibly allow for immoral or unethical practices. The “trick” is to constantly alter what it actually says in order to conform to evolving societal standards.

ix. Had the USSC recognized the first two principles of the Natural Law and the Judeo-Christian common morality which includes an absolute proscription against purposely killing the innocent, Roe v. Wade would have been impossible since purposely killing the innocent is always and everywhere wrong under all circumstances. Roe repudiates the notion of acts which are evil on the basis of their objects despite intent or circumstances. See Mary Ann Glendon. Rights Talk: The Impoverishment of Political Discourse. (New York: The Free Press, 1991, pp.47-75 for a discussion of “rights” specifically the “right to privacy” and the concept of individual autonomy upon which it is based, and pp. 58-60 for a discussion of Roe v. Wade as an example of rabid personal autonomy overtaking the new judicial concept of “individual” as opposed to family “right to privacy.”

x. Utilitarianism is an inadequately powerful moral philosophy by which to structure human interaction.