What are the lessons of the 2010 midterm elections for Republicans? Some Republican-friendly commentators, such as Dick Morris, suggest that the key lesson is that the Party should eschew divisive moral issues, such as abortion and marriage, and stick to libertarian economic issues, such as tax cuts and restraints on spending. Frank Cannon of the American Principles Project responds to Morris and those sharing his view in an article posted at Politico: http://www.politico.com/news/stories/1010/44033.html.
Sometime back, my law school classmate Bill Saunders and I reminded Republicans that the GOP was founded on moral concerns that in important ways parallel the concerns of pro-life and pro-marriage Americans today. In our view, the Party would betray its noblest principles if it were to abandon moral concerns and focus exclusively on issues of taxing and spending. Here is our plea:
In the middle of the 19th century, a new political party emerged dedicated to two great moral struggles. The Republican party, at its founding national convention in 1856, pledged to fight the “twin relics of barbarism”: slavery and polygamy.
By then, slavery was deeply entrenched in the culture of the American south. What some had regarded as a “necessary evil” that would gradually die out had been given a new lease on life by technological developments, and by the emergence of profitable overseas markets for cotton. An entire social and economic system was built on slavery. No longer was it reasonable to hope that the “peculiar institution,” and with it the moral controversy convulsing the nation, would quietly fade away. Powerful interests had a stake not only in maintaining the slave system, but in extending it into the western territories of the United States.
So the Republicans faced a daunting challenge. As historian William Lee Miller has observed, pro-slavery Democrats condemned opponents of slavery as “fanatics” and “zealots” who sought to impose their religious scruples and moral values on others. Slaveholders demanded that they “mind their own business” and stay out of the “domestic” and “private” affairs of others. Defenders of a “right” to own slaves pointedly invited northern abolitionists to redirect their moral outrage towards the “wage slave” system in the north. “If you are against slavery,” they in effect said, “then don’t own a slave.”
By the mid-1850s, polygamy, which had originally been the largely secret practice of the Mormon elite, had come out of the closet. Polygamists claimed that attacks on “plural marriage” were violations of their right to religious freedom. Later, some would bring lawsuits asking judges to invalidate laws against polygamy as unconstitutional. One of these cases would make it all the way to the Supreme Court. Apologists for polygamy denied that plural marriage was harmful to children, and challenged supporters of the ban on polygamy to prove that the existence of polygamous families in American society harmed their own monogamous marriages. They insisted that they merely wanted the right to be married in their own way and left alone.
But the Republicans stood their ground, refusing to be intimidated by the invective being hurled against them. They knew that polygamy and slavery were morally wrong and socially corrosive. And they were prepared to act on their moral convictions.
For the Republicans, the idea that human beings could be reduced to the status of mere “objects” to be bought and sold and exploited for the benefit of others was a profound violation of the intrinsic dignity of creatures made in the image and likeness of God. Similarly, the idea that marriage could be redefined to accommodate a man’s desire for multiple sexual partners was, as they saw it, deeply contrary to the meaning of marriage as joining a man and a woman in a permanent and exclusive bond.
In the great moral struggles of the 19th century, the Republicans sought advantage in every morally legitimate and available way. Where appropriate, they would accept strategic compromises on the road to victory; but they would not compromise away their principles.
When in the Dred Scott decision the Supreme Court of the United States announced its discovery of what amounted to a constitutional right of slaveholding, Lincoln and other leading Republicans refused to treat the case as a binding precedent. They would not bow to judicial usurpation. When Utah sought admission as a state, the Republican-controlled Congress made statehood conditional upon incorporation of a prohibition of polygamy into the state constitution.
Republicans would do well to remember their moral heritage. Abortion and embryo-destructive research are premised on the proposition that some human beings--those in the embryonic and fetal stages of development--may legitimately be reduced to objects that can be created and destroyed for the benefit of others. At the same time, the ideology of sexual liberationism threatens to undercut the traditional understanding of marriage as the permanent and exclusive union of one man and one woman.
A familiar mantra of “pro-choice” politicians is that abortion should be “safe, legal, and rare.” Now, however, they seek to validate and fund an industry that would create human beings for the precise purpose of destroying them during the embryonic stage of development in biomedical research. What happened with slavery is now happening with embryo-killing: The people who used to defend it as a “necessary evil” to be resisted or lessened by means other than legal prohibition now promote it as a social good--something that law and government should not only tolerate but embrace and even promote.
At the same time, the sexual-liberationist movement seeks to undermine traditional understandings of the meaning and significance of human sexuality. The attempt to alter the legal concept of marriage as the one-flesh union of a man and a woman is part of a larger effort to “liberate” people from what are regarded as outmoded and repressive ideas about the centrality of procreation and the moral requirement of fidelity in human sexual relationships. Even some leading “conservative” advocates of “same-sex marriage” have announced their moral acceptance of promiscuity; Andrew Sullivan, who used to make the "conservative" argument that redefining marriage to accommodate same-sex partnerships would reduce promiscuity, has now gone so far as to affirm and even praise the “spirituality” of “anonymous sex”--sexual encounters between complete strangers.
Critics of the Republican stand in defense of marriage and the sanctity of human life--including some within the party--echo the arguments of 19th-century critics of Republican "moralism." They accuse pro-life and pro-family Republicans of being “religious fanatics” who disrespect people’s liberty and seek to “impose their values” on others. “If you are against abortion,” they say, “then don’t have an abortion.” They maintain--sometimes sincerely, but in some cases (such as that of the prominent activist Michelangelo Signorile) for what they admit are merely tactical reasons--that legal recognition of the “marriages” of same-sex partners will not harm or weaken the institution of marriage as traditionally understood.
These arguments fare no better as defenses of human-embryo killing and the redefinition of marriage than they did of slavery and polygamy. Justice requires that all human beings irrespective of race or color, but also irrespective of age, or size, or stage of development, be afforded the protection of the laws. The common good requires that the laws reflect and promote a sound understanding of marriage as uniting husband and wife in an exclusive bond founded upon the bodily communion made possible by their reproductive complementarity.
An influential minority in the Republican Party proposes abandoning, or at least soft-pedaling, the Party’s commitments to the sanctity of human life and the dignity of marriage and the family. They say that social issues are “too divisive.” They suppose that the easy road to Republican electoral success is as the party of libertarianism (the party of "low taxes and low morals," as one wag put it). And they counsel what amounts to capitulation to judges who usurp the constitutional authority of the American people and their elected representatives.
Let Republicans be mindful of their heritage. It was moral conviction--and the courage to act on moral conviction--that gave birth to the Republican Party and made it grand. Now it is old, but need not be any less grand. By summoning the courage that enabled their party to stand proudly on moral conviction in the 19th century, Republicans can bring honor upon themselves in some of the great moral struggles of our own day.
We've just finished up the annual (we can say that now) Religious Legal Theory conference over here at St. John's. The two keynoters, Steves Smith and Shiffrin (or as Dean Simons had it, "morning Steve" and "afternoon Steve" -- I think that should stick), delivered wonderful papers on standing and the "hard" and "soft" Constitution, and the relationship between theology and constitutional law. The panels I attended were terrific -- chock full of new thoughts and young blood. The panel I moderated -- I suppose the most 'traditional' of the bunch, in that it was devoted to American Religion Clause questions -- was comprised of some real talent: John Inazu on assembly; Rick Esenberg on neutrality; Michael Helfand on religious arbitration (see also the new lawsuit filed just today trying to stop Oklahoma's proposed state constitutional amendment dealing with this subject); and Nelson Tebbe with an elegant paper on the constitutional status of nonbelievers. And I haven't even talked about Paul Horwitz doing his agnostic waltz, Ian Bartrum with a cogent piece on non-public reasons, Zach Calo on law and the secular, Joel Nichols on civil obedience and disobedience in the New Testament, Haider Hamoudi on juristic institutions in Iraq, a gaggle of international comparativists on religious liberty in Nigeria, Japan, Canada, and Italy, and many, many other excellent presentations.
Look out for the next installment of this conference way over at Pepperdine next year (Bob Cochran to lead the way).
I'm surprised that this horrifying incident is not being covered and discussed more widely (or maybe I'm just missing it). The New York Times reported, a few days ago, that 58 people were killed, in the Our Lady of Salvation Church in Baghdad, in "the worst massacre of Iraqi Christians since the war began here in 2003":
Knots of survivors, as well as their friends and relatives, stood in the street amid bullet casings and bandage wrappers, some of them crying. The Rev. Meyassr al-Qasboutros, a priest, was among them. His cousin, Wassim Sabih, was one of the two priests killed. Survivors said Father Sabih was pushed to the ground as he grasped a crucifix and pleaded with the gunmen to spare the worshipers.
He was then killed, his body riddled with bullets.
“We must die here,” Father Qasboutros said defiantly. “We can’t leave this country.”
Here is more from NCR, Reuters, and First Things.
Our colleague, Richard Stith, has this essay up at First Things, "Reforming the Pro-Choice Market." Richard argues, among other things, that:
Some pro-life leaders have advocated repeal of “Obamacare,” because it requires the public in various ways to fund abortion. Although I agree with their assessment of the law, I disagree with their proposed remedy. The pro-life cause would be far better served to keep the current law, provided that it be amended to include something like the original addition proposed by Congressman Stupak that fully excluded elective abortion from all state plans, except as an individual rider, consciously chosen by the insured person.
My disagreement stems not just from the fact that the healthcare law includes various pro-life provisions, such as new help for pregnant women, which may make them less likely to choose abortion. I think that even if these good aspects of the legislation are outweighed by its bad aspects, that is, if the net effect of the legislation at the moment is to advance abortion, it should not be repealed. . . .
Many thanks to our newest member, Marc DeGirolami, for his November 3rd contribution “On the Idea of Doctrine.” It may be possible to consider that other disciplines such as economics, political science, literature, the physical sciences, etc. rely on doctrines, i.e., principles, canons, policies, guidelines, etc.
Here I express a different take from Marc when he suggests that these other disciplines may regard doctrine as an impediment. Might it be more the case that within these other disciplines the argument really is a disagreement over which doctrines should be recognized and which should not? Marc offers the distinction between dogma and doctrine, but it is quite permissible from the study of the meaning of language to consider the two synonymous. Nevertheless, I appreciate Marc’s offering the distinction as he explains it. Of course, the same kinds of disagreements to which he refers emerge in theology and law. For example, we need to take stock of doctrinal disagreements today that are prominent within the study of scripture, moral theology, and fundamental—systematic—theology. Within law, there is often the conflict between the positivist and natural law lawyers.
I agree with Marc that theology and law are surely prominent as disciplines having attachment to doctrine.
Being more familiar with law and theology, I strongly concur that doctrinal and dogmatic concepts are vital to both of these fields. One objective of my post today is to offer a suggestion that theology and civil law are historically related. In some ways, we can consider that law did emerge from theology when we consider the Jewish faith and ancient legal precepts. Within Christianity, it is clear that the Church’s teachings and practices provided a foundation for the development of European legal institutions. (The work of John M. Kelly and Harold Berman is illuminating in this regard.) For example, the civil courts of England emerged from the ecclesiastical courts. Within the realm of public international law, the natural law and theological works of Augustine, Aquinas, de Vitoria, and Suárez are important sources upon which the often-called “father” of international law, Hugo Grotius, relied.
I think an important common denominator for acknowledging the nexus today is found in the work of John Courtney Murray, S.J., where he stated in his “The Origins and Authority of the Public Consensus,” that there is a three-fold proposition crucial to legal theory and the natural law: (1) the human person is intelligent; (2) reality is intelligible; and, (3) this reality, as comprehended by intelligence, imposes upon the human will the obligation to formulate norms of action and abstention that accord to reality of intelligible nature.
Marc offers a good point that doctrine (and adherence to it) bespeaks of the relevance and significance of authority and of authoritative pronouncements. Indeed, both theology and law have authorities that determine what is orthodox and what is not. But do not learned societies and professional associations in other disciplines also provide a kind of authority which establishes a framework of commitment or a coordinating function to what is appropriate and what is inappropriate within the context of the discipline for which the authority speaks?
May I suggest that most, if not all, disciplines rely on a past that helps charter their present and future courses. Members of the disciplines, including theology and law, can and do make departures from what has taken place, e.g., the reversal of precedent in the law. But for all disciplines, to borrow an expression, is not the past prologue?
Welcome, again, Marc!
RJA sj
