Lincoln, Aquinas, and the limits of judicial decisions

Lincoln’s First Inaugural, delivered in the gravest circumstances on March 4, 1861, is remembered for Lincoln’s passionate defense of the Union and implacable opposition to secession. It is also remembered for his closing, calling upon true patriotism and republican virtue. It is less remembered, except perhaps by Lincoln specialists and lawyers, for his principled rejection of judicial supremacy. Indeed, for Lincoln, the expansion of the power of the judiciary beyond particular cases was the end of self-government by a free people. For Lincoln, if the power of the Supreme Court were expanded to determine the policy of the entire government, the Supreme Court (or a majority of it) would rule, not the people.

This was not an academic question for Lincoln. In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), Chief Justice Roger B. Taney had pronounced the Missouri Compromise unconstitutional and declared, going beyond the precise issue in Dred Scott, that Congress had no power to ban slavery in the territories. Lincoln noted that the Constitution was, in fact, silent on that point, notwithstanding Taney’s resolution of the specifics of the Dred Scott case. Given that the expansion of slavery was for Lincoln the entirety of the issue imperiling the Union, the Supreme Court’s decision threatened the most serious consequences.

It is against this background that Lincoln stated, “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” For Lincoln, the limitation of judicial decisions to the parties to the case served as an important check on an erroneous decision. An incorrect decision could be reconsidered and overturned before it served as precedent if it were limited to the parties before the court.

But he offers a still more serious reason. Throughout the First Inaugural, Lincoln defends the proposition that in the United States, under the federal constitution, the people are sovereign. He observes, “[t]his country, with its institutions, belongs to the people who inhabit it.” He articulates his theory of popular sovereignty when he says that, “[a] majority held in restraint by constitutional checks and limitations, and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.” On the other hand, he finds the expansion of the judiciary power beyond the particular cases before the courts—the expansion of the judiciary power, that is, into the policy of the entire government—to be the antithesis of this popular sovereignty. He says as much: “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers . . . .”

Lincoln himself was true to his principles, refusing to abide by Chief Justice Taney’s May 28, 1861 decision in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), which held that Lincoln did not have the authority to suspend the writ of habeas corpus unilaterally. Lincoln’s July 4, 1861 message to Congress, the most compelling theoretical argument for the president’s absolute leadership of the state in cases of emergency, is in large part an answer to Taney’s Merryman decision. In other words, Lincoln acted upon the principle he articulated in the First Inaugural: the courts did not and indeed could not set policy, even on constitutional questions, for the whole of the government.

In this view, Lincoln has a surprising antecedent: St. Thomas Aquinas. As we begin the work of recovering the classical legal tradition, it is important to note where the Anglo-American tradition finds support in the classical tradition. Much of the anxiety about the classical legal tradition—and much of the anxiety about common-good conservatism—stems from a thorough ignorance of the classical tradition. In many cases, the Anglo-American tradition represents a borrowing, often inexpert, from the ius commune. Aquinas’s jurisprudence, articulated systematically in the Summa Theologiae, represents an important part of the classical tradition. Finding, therefore, support for a particular position in the Anglo-American tradition, here Lincoln’s view of the limitations on judicial decisions, in Aquinas is a significant result.

Aquinas held that a judge’s judgment is like particular law regarding a particular fact (ST II-II q.67 a.1 co.). For this reason, just as a general law should have coercive power, so too should a judge’s judgment have coercive power between the parties. Indeed, Aquinas notes that the judge ought to be the personification of justice, which requires two parties (ST II-II q.67 a.3 co.). But Aquinas rejects outright the suggestion that the judge’s power is plenary over the commonwealth. Aquinas instead follows Aristotle who holds that it is better for laws to be framed than it is for judges to judge every single case (ST I-II q.95 a.1 ad 2). One may say then that Aquinas’s position is that a judge is empowered to make particular law for particular parties to justice between them, but not to make laws for the entire commonwealth.

This is bolstered by Aquinas’s sense of who rightly interprets laws. Throughout the Summa Theologiae, Aquinas emphasizes that the lawgiver is the interpreter of the law. In his article on the emergency, in fact, he objects that only the lawgiver is competent to interpret the law (ST I-II q.96 a.6 obj. 1). He answers this by observing that a person acting in a true emergency is not interpreting the law, but instead following the intention of the lawgiver who, keeping always the common good in mind, must have intended something than the perilous result that would be obtained by following the letter of the law (ST I-II q.96 a.6 ad 1). Nothing in this suggests that Aquinas holds that anyone other than the legislator properly interprets law. Indeed, his theory of the emergency is predicated on not being able to obtain an authoritative interpretation from the lawgiver (cf. ST I-II q.96 a.6 co.).

The conclusion is further strengthened by Aquinas’s discussion of whether a judge may remit a just punishment. First, the judge, as noted above, declares what is just between two parties, and remission of the punishment would deprive the prevailing party of his due (ST I-II q.67 a.4 co.). Second, the judge exercises public authority when he pronounces judgment, and is the good of the commonwealth that evildoers be punished (ibid.). Nevertheless, the sovereign, who is the supreme judge of the commonwealth, has the authority to remit a just punishment. The judge simply does not have the discretion that the supreme judge of the commonwealth does (ST I-II q.67 a.4 ad 1).

Therefore one may say with considerable authority that Aquinas’s view of the role of the judiciary is limited. The judge pronounces justice between two parties in a given case. He does not have plenary authority over the law, to say nothing of the laws framed by the legislator for the common good of the whole commonwealth (cf. ST I-II q.90 a.2 co.). The authoritative interpretation of the law—and the power to frame laws for the commonwealth—belongs to the legislator, not the judge. The idea that judges deciding particular cases between particular parties would be able to affect all the citizens of the commonwealth is altogether alien to Aquinas’s theory of jurisprudence.

We see then that Lincoln’s notion in the First Inaugural represents, in a definite way, an important conclusion of the classical legal tradition. Lincoln conceded that judicial decisions are binding between the parties. He also held that those decisions are “entitled to very high respect and consideration in all parallel cases by all other departments of the Government.” Aquinas would no doubt agree with this. The lawgiver simply cannot have in mind all possible cases when he frames laws generally (cf. ST I-II q.96 a.6 co.). A judicial decision between two parties may well clarify for the lawgiver, who is the authoritative interpreter of the law, unintended consequences or the need for modification of a given law. Moreover, the lawgiver may be persuaded by the reasoning of the judge and accept the judge’s interpretation.

But Aquinas would also agree with Lincoln’s startling conclusion that “if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers . . . .” Judges do justice in particular cases between particular parties; they are not the sovereigns. Lincoln’s concept of sovereignty, which he articulates elsewhere in the First Inaugural, was ultimately popular sovereignty. His conclusion that the expansion of the Supreme Court’s power beyond particular cases was to the prejudice of the sovereign people follows upon eminently Thomistic principles.

The inherent dispute—whether the courts have the power to set the policy for the whole of the government—is low intensity most of the time. It emerged briefly during the chaotic run up to the Supreme Court’s Obergefell decision, but the flare ups were quickly resolved and everyone acquiesced in Obergefell. Nevertheless, the resolution is mostly one of rhetoric: there is no definitive juridical resolution. There is no clear statement in the Constitution that resolves the matter against Lincoln and Aquinas. Indeed, the Case or Controversy Clause suggests that Lincoln and Aquinas have a point. As interpretative tools like textualism and stare decisis are employed to achieve substantive results well beyond anything those tools can support on their own terms, the rhetorical resolution of this dispute looks less and less satisfactory.

Of course, judges themselves are entirely free to adopt the classical approach. Just as originalism and textualism are supported with the claim that they reflect judicial humility, so too may the limitation of decisions to the parties to a case be supported with the claim of humility. Indeed, for Thomas Aquinas, the supreme example of judicial humility is to confine judicial decisions to particular cases between particular parties, leaving the declaration of law and policy to the legislator or the chief magistrate of the commonwealth. Certainly, given the support for that view in the American tradition, nothing prevents its adoption.

The Order of the World in 2020

It is all too common to limit engagement with Carl Schmitt to a handful of books he wrote in the 1920s: The Concept of the Political, Political Theology, Dictatorship, and Constitutional Theory. The reasons for this are more or less obvious. Schmitt’s postwar output is worth considering, however. Or at least part of it. The merits of The Nomos of the Earth in the Ius Publicum Europaeum are well known. I have written before about his pamphlet, The Tyranny of Values, which has great descriptive power, especially in the endless conflicts over the hygienic measures aimed at coronavirus (and almost everything else in 2020). But another short essay—slightly neglected like everything else Schmitt wrote after the war—worth reading is The Order of the World After the Second World War. Indeed, Schmitt’s careful analysis is well worth considering in the current situation.

The Order of the World was published in the spring of 1962—before the Cold War looked like it might become all too hot. All the same, it is one of Schmitt’s meditations on the Cold War. Here, Schmitt argues that the Cold War is part of one revolutionary war, which he defines as “a war that has for its object the destruction of the social order in the country of the adversary, the extermination of its dominant groups, and the realization of a new distribution of power and property, without taking the distinction between offensive war and defensive war into account.” Indeed, Schmitt observes that the revolutionary war dissolves all prior concepts—including the concepts of war and peace themselves—into the question of means.

Schmitt then paraphrases Mao Tse-tung’s analysis that the ratio of cold war to hot war in the revolutionary war is 10:1. Only after “pacific means” have brought the situation to readiness does the hot war emerge. “In other words, the revolutionary war is constituted in nine-tenths by the cold war, and only the last tenth, although decisive, is hot war.” However, enmity—“the essence of any war whatsoever”—is present in the cold phase no less than the hot phase of the overarching revolutionary war. Indeed, the status of revolutionary war as an intermediate state between war and peace as classically defined produces considerable anxiety for Schmitt.

Of course, the concept of enmity, essential to Schmitt’s thought going back to the 1920s, is not a concept free of difficulty. One does not find Thomas Aquinas opposing Our Lord’s command to love our enemies to a just war (ST II-II q.40 a.1 co.) or to the concept of prudence in war (ST II-II q.50 a.4 co.). Still less does one find the evangelical precepts opposed categorically to war by Gratian and the patristic sources, including St. Augustine and St. Gregory, he collects (C.23 q.1). Nevertheless, it is hard to take enmity as the organizing principle of the unity of order. This difficulty does not, however, vitiate Schmitt’s clarity as an observer. Certainly one often hears of Karl Marx’s perspicacity as a critic of liberal political economy without—one supposes—an endorsement of Marx’s metaphysics (e.g., Benedict XVI, Encyclical Letter On Christian Hope “Spe salvi” 20–21).

At any rate, it is clear that Mao’s fraction was very much on Schmitt’s mind in the spring of 1962. In Theory of the Partisan, Schmitt also dwells on it, focusing there on the connection between the ratio and total war. After all, for Mao (according to Schmitt) peace is just enmity by other means. Of course, Schmitt is deeply concerned with the instrumentalization and neutralization of the classical legal and political concepts in the service of a total revolutionary war, to say nothing of the intermediate condition between war and peace. For Schmitt, the revolutionary war heralds nothing less than barbarism.

Lurking behind all of this is Cicero’s maxim inter bellum et pacem medium nihil sit, from Eighth Philippic (1.4). As Schmitt observes, Hugo Grotius’s use of this concept in his De jure belli ac pacis became influential in the development of the ius publicum Europaeum. Schmitt discusses it because, obviously, the intermediate states between war and peace are determined to a great extent by the concepts of war and peace. However, it is worth noting that Grotius cited the maxim in the context of determining whether a time of truce is war or not (III.1). Grotius, relying upon the maxim, concluded that a truce (or a safe-conduct or a parole of prisoners) is indeed during the war. More precisely it is an agreement during the war that suspends the effects of the war while the state of war continues. One might say that Grotius cited the maxim in an attempt to untangle an intermediate state. Nevertheless Grotius’s rigidity becomes for Schmitt part of the foundation of the classical international law—and the “humanitarian progress” created by that classical law.

It is indeed Schmitt’s anxiety that the revolutionary war, which dissolves these categories and instrumentalizes classical concepts of every kind of law, will roll back the humanitarian progress of the ius publicum Europaeum. Filling the void will be the total war, the partisan war. The revolutionary war, Schmitt observes in Theory of the Partisan, makes a hero of the partisan. The partisan simply imposes the sentence that follows upon the necessary—revolutionary—criminalization of the enemy. For Schmitt, sailing close to the wind with respect to his concrete circumstances, the classical war does not make a criminal out of the enemy. It is possible to conclude an honorable peace with the enemy but never the criminal.

It is worth considering in the summer of 2020 whether war may be made against institutions (or organizations). In both The Order of the World and Theory of the Partisan, in addition to war between states and within states, Schmitt looks to war against class enemies. Not without reason. Certainly Lenin and Mao, the two theorists of revolutionary war Schmitt points to, were above all interested in class warfare. And to the extent that class warfare still exists today, Schmitt’s observations are certainly valid. War against class enemies is necessarily revolutionary war, which is to say a total war that dissolves and instrumentalizes prior concepts.

But as supposedly neutral juridical structures are instrumentalized, seemingly with the goal of an entirely new distribution of power and property—especially with respect to the Church—it is worth asking whether the revolutionary war has opened up a new front. Certainly the endless, roiling animosity (enmity?) toward the Church expressed in the context of Supreme Court decisions like Our Lady of Guadalupe School and Little Sisters of the Poor reflects something very like the criminalization of the Church. Already the Democratic nominee for president outlines the actions to be taken to address some of these decisions. It is worth remembering that the vast majority of the revolutionary war is a cold war—only after “pacific means” have brought about propitious circumstances does the hot war emerge. In the meantime one ought to consider Schmitt’s warning the revolutionary war produces only one kind of hero: the partisan, who is content either to punish the criminal or be punished as a criminal.

The hour of the lawyers

Today a new blog, Ius & Iustitium, has launched. It is an outgrowth of The Josias devoted to jurisprudence and legal theory. No doubt the development will please the enthusiasts of “Big Integralism.” I am happy to say that I have contributed a piece to the blog about Fr. Thomas Crean and Prof. Alan Fimister’s book, Integralism, and their treatment of the Lex Regia and its medieval reception. Certainly, despite my criticism about this issue (and others), I think Integralism is a fine way to start a more serious phase of the discussion.

Despite my high opinion of my work, I suspect everyone is going to be very interested in Adrian Vermeule’s piece, which builds upon his common-good conservatism argument. It sparked a huge debate when he first set it out in The Atlantic. Certainly any argument that a substantive vision of the good has a place in law is going to be hugely interesting to Catholics, and rightly so. While I certainly hope for the success of any project I am involved with, I think that Ius & Iustitium is going to be an interesting, exciting project—especially with the state of the discourse, as it were.

A less serious phase of the discussion was my satire on Anglo-American originalism at The Josias. The technical aspect of the argument, I think, is actually correct: the English law on punishing heretics comes pretty directly from Frederick II’s imperial legislation by the way of Boniface VIII’s decretals. The English common law remains an important background source (and, in fact, a default) for American law. It is fun, I think, to give the originalists a dose of their own medicine with precisely the sort of antiquarian research that passes for jurisprudence in those circles, though aimed at a very different conclusion than the one most of them would like.

But all this jurisprudence—if it can be called such—has been in service of a goal, of sorts. In following the recent debates over integralism, especially the debates on Twitter, the popular microblogging website favored by so many of the cultural and political leaders of the age, it is increasingly clear that an important fault line is juridical thought. Some of the leading critics of integralism, including Michael Hanby and various graduate students, seem to be unaware of the Church’s juridical tradition, stretching back through Gratian to the early canonists, and the substantive content of that tradition.

The ignorance leads to strange mistakes. For example, when discussing coercion, some critics of integralism seem blissfully unaware that the Church to this very hour claims the right to coerce the faithful, even in temporalities—and no less an authority than John Paul II declared this was entirely consistent with Vatican II’s ecclesiology. They also love to spool out elaborate “Augustinian” political theologies. However, they seem unaware that Gratian, who established the foundations of the Church’s jurisprudence for 700 years or so, happily took what he wanted from Augustine in his Causae hereticorum (and elsewhere) to justify all sorts of things they’d get queasy about.

I think certain trends in the discourse are attempts to solve fundamentally juridical problems with reference to some other discipline, such as theology, political theory, or political economy. In some instances, this may be required by preexisting commitments. However, some questions simply are not amenable to solution by proxy. Ultimately integralism is a question in the juridical dimension: the theoretical component is relatively modest. Implementing the theoretical component, however, requires juridical solutions. By the same token, an objection to integralism is primarily a juridical argument and ought not to be disguised with St. Augustine or Karl Marx or some other figure.

Additionally, it is clear that Christians generally find themselves in a space where the law matters. Justice Neil Gorsuch’s recent decision regarding the sex discrimination provision of Title VII of the Civil Rights Act of 1964 will undoubtedly have an impact on the Church and other Christian groups. What that impact is remains to be seen. The Court, for example, has two ministerial exception cases that have yet to be decided this Term. There are other important cases, including a replay of the Hellerstedt case set in Louisiana. Meanwhile, in the context of a challenge to Illinois’s coronavirus restrictions, Judge Frank Easterbrook of the Seventh Circuit declared that churches could find workarounds for in-person services, since, after all, feeding the spirit is less serious than feeding the body (like a shelter or soup kitchen).

The juridical dimension matters. Ius & Iustitium, for my part, is a welcome development if all it does is emphasize the importance of juridical thought for Catholics.

Common-good conservatism, Vatican II, and Thomas Jefferson

Everyone has read Adrian Vermeule’s piece at The Atlantic advocating for a common-good conservatism. Basically, Vermeule argues, conservatives should abandon originalism in favor of a constitutional approach founded upon the common good, the natural law, and the law of nations. He argues that the powers of the government, while they could be founded upon specific constitutional provisions, need not be founded upon them. Instead, the general constitutional structure and the principles of the common good and just rule would provide the support for the government’s powers.

Vermeule’s piece has met with significant criticism from all quarters. The conservative legal establishment, even the Catholics among them, has too much invested in originalism to abandon it in favor of “progressive” approaches to the Constitution, even when those approaches would further conservative goals. Right- and left-liberals see in Vermeule’s argument incipient authoritarianism: state power untrammeled by the checks and balances of the federal constitution. Through all of this is the thread that, for whatever reason, the suggestion that the Constitution ought to be interpreted according to the natural law and moral principles is seen as dangerously reactionary. Worse still is the idea that the government has the obligation to promote the common good, which is an idea with definite content.

However, I think there are some points that ought to be brought out. First of all, the idea Vermeule advances is simply the doctrine of the Roman Church. In Gaudium et spes, the Second Vatican Council outlined an energetic civil authority with the obligation to promote the common good for the total well-being of its citizens. Second, there is a tradition going back to the founders of the Republic that (1) morality applies to republics as well as men and (2) that there is a law higher than the written constitution. These principles, in fact, may be readily found in the writings of Thomas Jefferson. Originalism must reckon with this reality, in addition to its regular citations of Noah Webster’s dictionary and The Federalist.

I.

So-called “common good conservatism” is simply the doctrine of the Roman Church, even in the era following the Second Vatican Council. In Gaudium et spes, the Second Vatican Council proclaimed, “The political community exists, consequently, for the sake of the common good, in which it finds its full justification and significance, and the source of its inherent legitimacy” (74). Furthermore, “[i]f the political community is not to be torn apart while everyone follows his own opinion, there must be an authority to direct the energies of all citizens toward the common good” (ibid.). However, the authority must be exercised “not in a mechanical or despotic fashion, but by acting above all as a moral force which appeals to each one’s freedom and sense of responsibility” (ibid.). The Council went on to declare that, “[i]t follows also that political authority, both in the community as such and in the representative bodies of the state, must always be exercised within the limits of the moral order and directed toward the common good—with a dynamic concept of that good—according to the juridical order legitimately established or due to be established” (ibid.). When it is so exercised, it is binding in conscience and must be obeyed (ibid.).

The Council also articulates a robust vision of the scope of political authority as well, teaching that “[t]he complex circumstances of our day make it necessary for public authority to intervene more often in social, economic and cultural matters in order to bring about favorable conditions which will give more effective help to citizens and groups in their free pursuit of man’s total well-being” (75). This can extend so far as the temporary restriction of rights for the common good (ibid.). While the Council calls for written instruments of positive law setting forth rights of citizens, the Council also takes care to note that individual citizens have duties to the common good.

One finds in Gaudium et spes, therefore, a vision of the state ordered to and constrained by the common good and the moral law, but within those constraints with significant authority to act broadly and energetically in all spheres of common life to promote the total well-being of its citizens. With the Council’s language about obedience and the duties of citizens to the common good, one could read Gaudium et spes almost as an endorsement of a total state, directing, through intervention in all aspects of life, “the energies of all citizens toward the common good,” and their total well-being.

From the beginning of the integralism debate, Charles de Koninck’s The Primacy of the Common Good Against the Personalists has been a foundational text. Indeed, one might say that it is the foundational text of integralism in the 21st century. And De Koninck’s explanation of the Thomistic vision of the common good and political authority in service of the common good provides an important background for the Council’s teaching, especially in the context of the vision of the sweeping power of the state. De Koninck’s careful explanations exonerate the Gaudium et spes state from the charge of totalitarianism, though, like Gaudium et spes, De Koninck challenges us to reconsider liberal notions of the limits of the state.

However, I think Vermeule makes an error, at least by the terms of Gaudium et spes. He claims, “[a] corollary is that to act outside or against inherent norms of good rule is to act tyrannically, forfeiting the right to rule, but the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself.” This is not quite right. In Gaudium et spes, the Council teaches, “[b]ut where citizens are oppressed by a public authority overstepping its competence, they should not protest against those things which are objectively required for the common good; but it is legitimate for them to defend their own rights and the rights of their fellow citizens against the abuse of this authority, while keeping within those limits drawn by the natural law and the Gospels.” The Council’s teaching is a fairly straightforward restatement of St. Paul’s teaching in the Letter to the Romans and Thomas Aquinas’s teaching in the De Regno and the Summa Theologiae. Legitimacy is not an on-off switch, and where a bad ruler makes ordinances that are still “objectively required for the common good,” the ordinances must still be obeyed.

Whether or not Vermeule’s mistake has significant consequences for his argument is not immediately clear. One could follow Alasdair MacIntyre and claim that the universal accessibility of the natural law is a significant argument against centralization, especially the sort of centralization Vermeule argues for, which is ultimately patterned on the governments of Louis IX and Frederick II. There are problems with MacIntyre’s argument, including—I think—a misreading of some of Frederick’s Sicilian legislation (especially as it relates to his imperial legislation). However, treating legitimacy as an on-off switch makes it harder to rebut MacIntyre’s argument against centralization. Indeed, centralization of a leader supported by a strong bureaucracy presents significant risks if one tyrannical act delegitimizes the entire regime. The problem is much less significant if the act is taken on its own terms without implicating the right to rule.

Prescinding from technical questions such as the nature of legitimacy in the context of tyranny, for Catholics (and others) who have followed the integralism debate over the past few years, the teaching of Gaudium et spes is hardly groundbreaking stuff. Indeed, it is a pretty conventional summary of Aristotle and Thomas Aquinas. The political community is ordered to the common good, there must be an authority to direct the citizens toward the common good, and the acts of that authority are binding in conscience if they are “exercised within the limits of the moral order and directed toward the common good.” What is interesting is the debate, even among integralists, about Dignitatis humanae and its supposed liberalism hardly takes notice of these statements in Gaudium et spes.

All of this is to say that, for Catholics, even Catholics suspicious of reliance on Pius IX and Leo XIII, there is very little controversial in Vermeule’s common-good conservatism. Indeed, given that the teaching in Gaudium et spes is explicitly founded in some significant part upon natural law, there is very little controversial in Vermeule’s argument for anyone. Of course, this is not quite the case: Vermeule’s piece has become hugely controversial, even among Catholics. Non-Catholic conservatives prefer to emphasize the constitution’s text, rejecting the claim there is a higher law or that morality forms a part of the law.

Vermeule’s Catholic critics must reckon with Gaudium et spes. To assert that there is no room for the common good, for the moral order, in government is to contradict the Second Vatican Council. Indeed, to affect horror at the concept of public authority exercising its power in social, economic, and cultural matters to order the state to the common good and establish conditions propitious for the total well-being of all citizens is to deny outright the teaching that the political authority must be obeyed when it acts in such a manner. So far from casting off the authoritarian teachings of Pius IX and Leo XIII in favor of the fresh air of the Council, Vermeule’s Catholic critics are casting off the Council’s teaching.

Even if they are not casting off the Council’s teaching, they are presenting a vision of the Council that emphasizes the aspects superficially compatible with liberalism in the 20th century. To focus on a few paragraphs in Dignitatis humanae without giving equivalent attention to the teaching in Gaudium et spes is to present a false picture of the Council and its vision for modern society. To challenge this false picture, one need not go so far as to demonstrate the consistency of the Council with the teachings of Pius IX and Leo XIII—to say nothing of Boniface VIII—one need only insist upon the presentation of the Council’s integral teaching, without omissions or distortions. It becomes clear that the Council becomes little more than a pretext, quickly discarded, for adopting liberalism in its entirety.

II.

All of Vermeule’s critics must reckon with the fact that the conception of the common good and the moral order as a framework for government is not altogether alien in the American tradition. Certainly, one can cite Abraham Lincoln at great length, both in his debates with Stephen Douglas, and in his actions during the rebellion, in support of that principle. However, one can find support going back to the every beginning of the Republic. Thomas Jefferson, in his April 28, 1793 “Opinion on the French Treaties,” observed that the “Moral law of our nature” constitutes an important part of the law of nations, and that the “Moral duties which exist between individual and individual in the state of nature, accompany them into a state of society & and the aggregate of the duties of all the individuals composing the society constitutes the duties of that society towards any other . . . .” Indeed, Jefferson went on to observe that God did not release men from their moral duties when they entered into society.

Furthermore, nearly twenty years later, Jefferson, in a September 20, 1810 letter to John B. Colvin, admitted the existence of a law higher than the Constitution. He wrote, “[a] strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation” (emphasis in original). Indeed, Jefferson argued, “[t]o lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means.”

The hermeneutic of originalism has to reckon with statements like this. The opinions of the drafter of the Declaration of Independence, the third President of the United States, the second Vice President, the first Secretary of State, and member of Congress cannot be held for naught simply because they are not James Madison’s opinions (or Alexander Hamilton’s or any other framer you’d like). If originalism is a coherent interpretative tool and not merely a fig leaf for this or that libertarian policy preference, then Jefferson’s views matter. Indeed, they probably matter more than Noah Webster’s dictionary or floor speeches in Congress by less influential persons.

Of course, one may adduce in opposition to these selections the extract from Jefferson’s commonplace book in which he argues—against the opinions of many learned judges and lawyers—that Christianity was never part of the common law. And even if one does not go that far, one hardly needs lessons in morality from one such as Thomas Jefferson, whose behavior in certain respects has become infamous in recent decades. Yet this does not change the fact that Jefferson’s views constitute part of the civil tradition of the United States.

Carl Schmitt contra William Barr

In a high-profile speech at Notre Dame, Attorney General William Barr made a forceful case for religion in public life. He argued that Judeo-Christian religious and moral values have been essential components in the life of the Republic since its founding. He noted that these values have been under siege in the public square for some time, with dire consequences for the moral and political life of the nation. Indeed, Barr observes that the Judeo-Christian values have been replaced with secular values that present serious threats to ordered liberty. Barr recently made a similar case in a speech in Nashville, Tennessee. It is clear that Barr sees these moral values as necessary for a healthy, functioning state.

Barr has recently been the subject of some attention in the press, with Tamsin Shaw calling him “the Carl Schmitt of our time” at the New York Review of Books. David Rohde, writing at the New Yorker, presents Barr as an ideologue, using Donald Trump’s expansive notions of presidential power to achieve religious and political goals of his own. It is the allusion to Carl Schmitt that is most evocative. Shaw has in mind the early-2000s Schmitt revival, especially in the context of George W. Bush’s War on Terror policies. This is not unreasonable. Important thinkers such as Giorgio Agamben turned to Schmitt for a framework to assess the political-juridical environment following the September 11 attacks. However, for Shaw, Barr appears to be a Schmittian figure largely because he believes in an expansive interpretation of presidential power under the Article II Vesting Clause of the United States Constitution.

It is unclear to me, however, that Barr is actually much of a Schmittian. His rhetoric in the Notre Dame and Nashville speeches is, candidly, basically the same religious conservative rhetoric that I’ve heard from various places for the past fifteen or twenty years. (It’s even older than that, I think.) Barr is a little gloomier about the state of the Republic, but we live in an era after Donald Trump’s “American Carnage” speech. Indeed, following Obergefell and other significant setbacks for religious conservatives during the Obama years, there is room for pessimism about the state of the United States. Likewise, the despair that finds concrete expression in widespread drug use and the appalling suicide statistics of recent years does not necessarily inspire great optimism. In this sense, Barr is simply identifying what anyone with eyes to see should understand.

More than this, it is Carl Schmitt himself that offers the most serious rebuttal to Barr’s rhetoric. Barr speaks entirely of values: if the correct values were enshrined, he says, in our laws and public institutions, the pernicious phenomena of recent years would be addressed. However, Schmitt makes a compelling case that conceiving of important metaphysical commitments in terms of values inherently leads to enmity and strife, which ultimately will imperil the ordered liberty Barr evidently seeks to preserve. Worse than this—at least for Barr—to conceive of these commitments in values paradoxically leads to the secularization that Barr wants to avoid.

In his 1959 speech (privately printed in 1960 and reissued in 1967), The Tyranny of Values, the jurist Carl Schmitt makes the claim that “[v]alue is not, rather it holds.” For this reason, Schmitt argues that “[v]alue precisely lusts after actualization. It is not real, but directed toward realization and longs for enforcement and implementation.” This is a startling claim: value is not real—but it is held and it is enforced. It also comes as no surprise that other values are diminished in the process of enforcement and implementation. Schmitt observes that “No one can value without devaluing, raising in value, and valuizing. Whoever sets values has thereby set himself against non-values.” In other words, to hold—to enforce—a value means necessarily to reject and exclude other values. To declare them, in effect, non-values.

At the outset, one sees that, in Schmitt’s account, the enforcement of values is inherent in the concept of value generally. The constant judicial strife in United States courts over this or that social issue becomes immediately comprehensible: it is necessary that values be enforced and judges are as good as anyone to enforce values. (More on that in a moment.) Indeed, more broadly, cultural strife becomes immediately comprehensible. Values have to be held and enforced, other values have to be rejected and excluded, and this can take place in any number of forums.

In a passage reminiscent of his 1922 book, Political Theology, Schmitt cites Martin Heidegger’s Holzwege for genealogy of the philosophy of values. For Heidegger, value philosophy emerges in the 19th century as a response to the advance of value-free science. It is, in Heidegger’s pungent phrase, “the positivistic ersatz for the metaphysical.” Schmitt expands the argument: science threatened the freedom of the individual, especially in the “religious-ethical-juristic” dimension. Value philosophy answers this dilemma by preserving the individual as a “free, responsible essence,” if not as a being, then as a holder of values. In other words, for Schmitt, value philosophy is an attempt to preserve individuality in the face of science, which imposes purely causal definitions for beings.

A brief aside: seen in this light, value philosophy is a reaction to the advance of value-free science. But it is not an escape from the effects of value-free science. In Schmitt’s lengthy introduction to The Tyranny of Values, written for a 1967 edition, he observes that theologians, philosophers, and jurists “promise themselves from a philosophy of value … salvation from an irresistibly advancing natural scientificity.” But the transformation of the foundations of theology, philosophy, and law—that is, the metaphysical presuppositions of those fields—into values “can only accelerate the process of the general neutralization.” The “general neutralization,” Schmitt argues, even goes so far as to dissolve all oppositions, including, for example, the opposition between science and utopia. More than that, no less than science, values themselves become levers for utopia. Indeed, “[a]ll social and biological utopias consequently place values of all kinds at their disposal.”

In other words, Schmitt decisively rejects the notion that any particular values—even values heretofore denominated as conservative—are a bulwark against precisely the scientific, neutralizing tendency that required the adoption of values. On the contrary, the adoption of values accelerates “the process of general neutralization.” Making things worse, there is a positive feedback loop: the general neutralization dissolves all oppositions, opening the field for a scientific-utopian conception, which in turn uses values in its own way. So far from resisting the creeping advance of science, value philosophy for Schmitt ensures the ultimate triumph of science and pure causality.

All of this presents serious problems for Barr’s vision. For one thing, to speak of Judeo-Christian religious values is not to escape value logic, but instead to reduce profound metaphysical commitments to values and to subject them to the process of valuation and de-valuation inherent in the logic of values. Worse than this, this process hastens the “process of general neutralization.” In other words, re-enforcing and re-implementing “Judeo-Christian values” will not stop the processes that alarm Barr, but are simply new phases in those processes. As they continue, the re-enforcement and re-implementation will end up serving the neutralization that he objects to.

It is not merely for Barr that this account of “values” presents significant problems. If one accepts Heidegger and Schmitt’s account—which goes back to Friedrich Nietzsche according to Heidegger—to speak in terms of “values” is to accept a certain approach to metaphysical contentions resulting in a “positivistic ersatz for the metaphysical.” Likewise, one must question, from the Christian perspective, whether or not it is advisable, even inadvertently, to reduce human freedom and responsibility to the dimension of holding this or that value. (Surely it is not.) The language of values becomes less and less appealing as a line of flight from the inexorable march of scientific nihilism.

It is in this same vein that Schmitt makes another important point. He follows Max Weber’s argument that individuals set values. For Weber, according to Schmitt, the subjective freedom of the individual in setting values is opposed to the “absolute value freedom of scientific positivism.” Schmitt sees a particular outcome, however. The world of individuals, all subjectively setting values that long for enforcement will produce a bellum omnium contra omnes. Indeed, for Schmitt, values set in subjective freedom are simply the “old gods” making war—and with new technological means. This is inherent in the logic of values. Value must be made valid. As a result, “[t]he boundless tolerance and neutrality of the arbitrarily exchangeable standpoints and viewpoints immediately turns over into its opposite, into enmity, as soon as it becomes a concretely serious matter of enactment and making valid.” But we already know that value “longs for enforcement and implementation.” Value inevitably leads to enmity.

As a result of all of this, Schmitt follows Nicolai Hartmann in speaking of a “tyranny of values.” “The higher value has the right and duty to subject the lower value to itself, and the value as such annihilates with right the non-value as such.” As a result of this, the value assumes a dominance over the individual who holds it. Schmitt is indifferent to whether this is psychologically unavoidable or unavoidable in itself. The bottom line is that “[i]n terms of value logic, it must always be valid: that for the highest value the highest price is not too high and must be paid.” As a result, the war of values becomes total war, without, as Schmitt goes on to observe, any of the traditional categories of just war (e.g., proportionality). There is only, Schmitt says, the annihilator and the annihilated. It is therefore the role of the supreme legislator to mediate this process and “to hinder the terror” of the enforcement of value.

Recently, there has been an ongoing debate in conservative circles (broadly defined) about state power and the extent to which the state should intervene decisively in social questions. This is for the most part the essence of the debate between Sohrab Ahmari and David French. We see in Carl Schmitt’s account the incoherence of French’s position and the strength in Ahmari’s. In yielding to value philosophy, there is inevitably conflict. This conflict has to be managed and mediated by the legislator, lest the total war of values turn to technological weapons capable of achieving the distinction between annihilator and annihilated.

It is also worth noting here that Schmitt gestures toward the total state and the hero-leader when he observes that the lawgivers who have successfully mediated the enforcement of values (and hindered the terror associated with that enforcement of values) become “mythic figures,” such as Lycurgus, Solon, and Napoleon Bonaparte. In other words, the bellum omnium contra omnes unleashed by values requires a figure of mythic proportions to take things in hand. The notion that Judeo-Christian values lead to limited government is, in Schmitt’s account, simply false. Values require unlimited government to mediate the struggle between individuals holding strongly opposed values.

This too shows the dangers for Barr in thinking in terms of values. In the Notre Dame speech, he identifies at length the serious actions taken against Christians and other people of faith in the name of the new secular values that have displaced Judeo-Christian values. But this is necessary according to the logic of values. Inevitably, reducing these commitments to values leads to the enmity Barr laments. Value must be made valid, and this process results in total war. To re-enforce and re-implement Judeo-Christian values would not be an end to this war, according to Schmitt, but instead a new round.

Some thoughts about Francis’s “Querida Amazonia”

Francis has released Querida Amazonia, his post-Synodal Apostolic Exhortation following the 2019 Synod of Bishops meeting on Amazonia. Despite the extensive speculation during the Synod and afterward, Francis did not provide an obvious opening to married priests or deaconesses. The disappointment of his liberal interpreters, by and large self appointed, has been palpable. However, Francis did return to the themes of Laudato si’, his social encyclical, which dealt at great length with technology and ecology. Indeed, Querida Amazonia builds upon Laudato si’ in interesting ways, evoking not only Fr. Romano Guardini, long known as one of Francis’s most important intellectual influences, but also the hugely influential German philosopher, Martin Heidegger. The focus, therefore, on the questions of married priests and deaconesses is, therefore, missing a valuable opportunity to reflect on Francis’s serious philosophical and theological challenge to modernity, especially technology and globalization’s pernicious effects on tradition and traditional ways of life.

I.

For the most part, the ecclesiastical-political dimension has driven the reaction to Querida Amazonia. It cannot be denied that Querida Amazonia is a disappointment: progressives in the Church have been agitating for some time for openings for married priests (sometimes referred to by means of the phrase viri probati) and deaconesses. The problem concerning deaconesses has been a long-running one for Francis. I think his commission studying the historical sources went through one round, issued a report, and then has been reopened in some dimension. The question of married priests—and the concomitant effect on priestly celibacy—predates Francis’s pontificate. However, because Francis is widely believed to be a progressive, there is renewed vigor in the demands.

Based on the Synod’s final report, there were very definite notions that he would open up the question of deaconesses in a broader way. Obviously the memories of Amoris laetitia are still fresh. (Of course, precisely why residents of Amazonia clamored for the two things that have lately been controversial in liberal Catholic spheres is a little unclear.) And reports in the press stoked this expectation. Indeed, shortly before Querida Amazonia was released, there was a definite report that Francis would endorse the ordination of married men. The report went so far as to allege that a draft exhortation had been sent to various prelates in advance of its release. But shortly before the document was released, there were other rumors that Francis would not even address the proposal. These latter rumors turned out to be true: Francis did not open the door to the ordination of married men. He did not even discuss the proposal in any detail.

Querida Amazonia is a second major bust for progressives. The first, Christus vivit, was Francis’s response to the 2018 Youth Synod. It was widely anticipated that this would provide an opening for reconsideration of the Church’s teaching about homosexuality in particular. Much was made, in pre-Synod surveys and in the working document for the Synod, of the fact that young people have difficulty understanding (or even outright disagreements with) the Church’s teaching on homosexuality. When Christus vivit was issued, however, no such opening appeared. Indeed, it was another entry in a long line of papal statements aimed at young people that are wholly uncontroversial.

It has been suggested that Robert Cardinal Sarah and, possibly, Benedict XVI’s intervention—a book in favor of priestly celibacy—had some effect on the Pope’s ultimate decision. Certainly, the book became a significant controversy, with the exact nature of Benedict XVI’s contribution challenged. The book seems to have had consequences for Francis’s government of the Church, with Archbishop Georg Gänswein, heretofore prefect of the Papal Household and Benedict’s personal secretary, being reassigned pretty much permanently to the latter duty. This appears to be Francis’s sanction for Gänswein’s murky role in the whole controversy over Benedict’s involvement. However, in recent weeks another possibility has emerged.

On February 19, Sandro Magister published a lengthy piece arguing that Francis’s decision was motivated by the ongoing issues with the German Church. Magister notes that the German Church’s ongoing “Synodal Way” is aimed—at least in the minds of some of its most prominent voices—at loosening the celibacy requirement for priests, finding some mechanism by which holy orders could be conferred on women, and blessing same-sex relationships. Magister details the series of interventions taken by Francis and his deputies in the Curia to rein in the “Synodal Way,” all of which have been politely received and subsequently ignored by the German authorities. Magister suggests that the silence of Querida Amazonia on the issues of viri probati and deaconesses is part of Francis’s attempt to deflate the German process.

An interesting sidenote: if Magister is correct, Walter Cardinal Kasper has been an important advocate against the German “Synodal Way” as it has developed. Kasper was more or less the villain of the 2014-2015 Synod that produced Amoris laetitia, though his profile has not been so high since the document was released. Magister suggests that Kasper raised the alarm in a way that other German prelates, such as Cardinal Müller or Cardinal Brandmüller could not, and subsequently helped Francis get a handle on the situation in the Church in Germany. It was with the assistance of Kasper’s consultation that Francis wrote his letter to the German Catholics, calling for caution and deliberation.

Whatever the reason for the decision, the self-appointed interpreters of Francis’s pontificate swung into action almost immediately. Francis’s apparent decision not even to refer to the final report of the Synod means that all of the issues in that document remain open. Francis, we are told, meant to present that document and guide its reception by the Church. Of course Lorenzo Cardinal Baldisseri, Secretary General of the Synod of Bishops, let the cat out of the bag at the press conference presenting Querida Amazonia: in Episcopalis communio, Francis’s 2018 document reforming the Synod, there’s a mechanism for endorsing the final report and incorporating it into the pope’s ordinary magisterium (art. 18). Francis has not done so, which means that it has the weight of a Synod final document, whatever that may be.

II.

Yet it is a disservice to the Pope’s vision to talk about Querida Amazonia in the narrow, concrete terms of what Francis approved or did not approve. As Matthew Walther has explained, Querida Amazonia is an extraordinary document. Francis returns to the themes of his great encyclical, Laudato si’, but this time by means of poetry and reflection. One is hard pressed to think of another papal document that contains phrases such as “this dream made of water” and “a dance of dolphins,” much less the copious references to poetry. Throughout the document, one detects the influence of Fr. Romano Guardini, who has long been an influence for Francis. One also detects other influences, such as Martin Heidegger.

I have often wanted someone who has a profound knowledge of Francis and Heidegger to write about the connections between the two. Both Laudato si’ and Querida Amazonia seem deeply influenced by Heidegger’s Essay Concerning Technology and his 1966 Spiegel interview, more commonly known as “Only a God Can Save Us.” Francis’s meditations on the traditional Amazonian way of life, affected by technology and exploitation, seem to have roots in Heidegger no less than Guardini. Even the turn to poetry in Querida Amazonia seems as though it is influenced by Heidegger, especially Heidegger’s emphasis on the poetry of Hölderlin. It is true that Francis does not explicitly cite Heidegger, either in Laudato si’ or in Querida Amazonia. In contrast, Francis has explicitly cited Guardini, especially The End of the Modern World. However, it seems strange—to me at any rate—that Francis would be familiar with Guardini’s writings on technology and man without also having some familiarity with Heidegger’s influential writings on the same topics.

A few examples may suffice. Consider the passage from the Spiegel interview: “Everything is functioning. That is precisely what is awesome, that everything functions, that the functioning propels everything more and more toward further functioning, and that technicity increasingly dislodges man and uproots him from the earth.” Compare this with Francis’s assessment of the historical situation in Querida Amazonia: “It is well known that, ever since the final decades of the last century, the Amazon region has been presented as an enormous empty space to be filled, a source of raw resources to be developed, a wild expanse to be domesticated. None of this recognizes the rights of the original peoples; it simply ignores them as if they did not exist, or acts as if the lands on which they live do not belong to them.” Francis appears to be describing in particularly evocative terms the same phenomenon Heidegger is describing. Indeed, in the Spiegel interview, Heidegger used similar terms to describe the process that took place in Provence.

Heidegger went on to say “I know that, according to our human experience and history, everything essential and of great magnitude has arisen only out of the fact that man had a home and was rooted in a tradition.” This statement could well be a summary of chapter two of Querida Amazonia, which includes Francis’s dire warning: “The globalized economy shamelessly damages human, social and cultural richness. The disintegration of families that comes about as a result of forced migrations affects the transmission of values, for ‘the family is and has always been the social institution that has most contributed to keeping our cultures alive.’” In this dimension, we see Francis’s profound conservatism. The globalized economy, for Francis, attacks directly the home and tradition in which man is rooted. Indeed, it attacks the most central element of the home and the tradition as Francis sees it: the family. By reducing individuals to mere economic variables and forcing them to migrate for various reasons, globalization (i.e., late-liberal capitalism) destroys those things that produce “everything essential and of great magnitude” as Heidegger would say.

One could go on in this vein, especially by means of the Essay Concerning Technology. It would be an interesting exercise to consider the similarities between Francis’s treatment of the Amazon and Heidegger’s treatment of the Rhine, especially by means of the poet Hölderlin. Of course, there have been attempts in the past to draw connections, especially via Guardini, between Heidegger and Francis. But I am not sure that I have seen a good, concise presentation, especially drawing upon Francis’s thought about technology. Given that the discussion about Querida Amazonia has been mostly about the concrete questions about what Francis did or did not do, I am pessimistic about whether anyone will take the opportunity to use the springboard presented by Querida Amazonia to write such a presentation.

The unedifying nature of the debate over Querida Amazonia becomes obvious though. Francis has offered the whole Church—indeed, the whole world—an opportunity to discuss issues that are at the very heart of the theological and philosophical tradition, both inside and outside the Church, since the Second World War. His contribution here, especially as a ground for further thought, is no less rich than the philosophical and theological contributions of John Paul II and Benedict XVI. To take this opportunity and reduce it to a polemical, ideological confrontation about who did or did not “win” the Synod or who will or will not receive the prize of ordination is, therefore, a superficial response. Worse than that, it is a sign that it no longer really matters what Francis says.

They don’t get paid to take vacations

At The Josias today, there is a fascinating series of fragments on the subject of integralist penal law. I would, of course, think they are fascinating not least because I wrote them. However, in the debates about integralism, the absence of integralist proposals for the penal law is often advanced as a criticism of integralism. The implication is that integralism is simply underdeveloped—or, worse, that there is a certain prudence on display. That is, in the latter case, the implication is that the integralist penal law would be disqualifying in some way or another. However, there are problems with that view, not least because there are questions that would have to be answered before a hypothetical integralist regime could promulgate penal law. The fragments I have put together are aimed, for the most part, at those questions.