Monday, January 17, 2005

Theophobia and Justice Thomas--an Aristotelian view

Atrios is stirring up a small storm over a quotation attributed to Justice Thomas:
An Alabama SC justice claims, according to a Birmingham News reporter, that Clarence Thomas told him:

[A] judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution.


The link originally came from a lawblog by Sam Heldman. Heldman, Atrios, et al, seem to think that that quotation, if accurate, proves that Justice Thomas is a theocrat.

1. Justice Thomas, in his confirmation hearings, made it clear that he is not a strict constructionist: rather he is a natural law theorist working within the Aristotelian/Thomistic tradition.
2. For strict constructionists, Brown vs Board of Education is a problem because banning segregation was clearly not a part of the original intent of the authors of the 14th amendment. For Thomas as a natural law theorist, segregation violates universal principles of human rights; hence the court was right to strike it down in the Brown ruling--regardless of the original intent of the framers.
3. Although I am not aware of any place where Justice Thomas draws out this conclusion, the logic of Thomas' understanding of natural law would have allowed the Supreme Court to strike down slavery even prior to its abolition under the 13th amendment on the grounds that slavery was contrary to natural law.
4. Without questioning him in detail, it is impossible to know what exactly Justice Thomas meant by saying that a judge's first duty is to God, but in light of his known affirmation of natural law theory, it is highly probable that things like #2,3 are what he has in mind. One may agree or disagree with this approach to the constitution, but it is scarcely theocracy.
5. In any case, the notion that one's first duty is to God is scarcely proof that one is a theocrat: one might well believe with Jefferson that one's duty to God requires the separation of Church and State: "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?" (Jefferson, Notes on Virginia 1782). For Jefferson, the very fact that human rights were a gift from God required the wall of separation between Church and State. This point is not merely antiquarian: in the case of Justice Thomas, said to be a practicing Catholic, I presume he thinks himself bound by Dignitatis Humanae (1965), which requires Catholics to uphold "THE RIGHT OF THE PERSON AND OF COMMUNITIES TO SOCIAL AND CIVIL FREEDOM IN MATTERS RELIGIOUS" (available at www.vatican.va).
6. The passion with which Atrios and 300 or so of his posters have leaped into this as possible proof that Justice Thomas is a theocrat is...sad. a) There was a time when you couldn't graduate with a liberal arts degree without having read extensively in Aristotle and St Thomas--the key architects of natural law theory. But that was before the decline of the academy into postmodern political correctness masquerading as education. Sigh. b) Whatever else one finds in the posts at Atrios, one won't find much tolerance: one finds instead all too much of the theophobia that helped lose the Democrats the last election. My liberal friends have been agonizing since 2 Nov 2004 over why they lost the election. The posts over at Atrios would be a good place to start.


3 Comments:

At Monday, 17 January, 2005, Blogger sam said...

As I said when you commented on my post at Ignatz, I think that you are missing important points of the content and context of the statement attributed to Justice Thomas. The content -- and I recognize that we don't yet know for sure whether the statement was correctly attributed, but I think we need to do what we can to find out -- drew a distinction between one's oath to God and one's oath to the Constitution, and said that a judge is to be evaluated on the former rather than the latter. Any natural law theorist who was working within the American tradition would -- if he was making the point that you are trying to make -- have to say something quite different, something to the effect that the two oaths are congruent.

The context makes it all the more clear that -- if the statement was correctly attributed -- Justice Thomas's statement was very problematic. The context is that the Justice whom he was swearing in, was elected because he aligned himself with former Ala. Chief Justice Roy Moore, who was the most striking modern example of a judge who put his own perceptions of what God wanted, over his obligations to the Constitution. The reason Justice Thomas was asked to do the private swearing-in, it is clear from the news, is that former Chief Justice Moore had been asked to do the ceremonial swearing-in, but that any oath administered by him would be ineffectual given his removal from office. So, that's how Justice Thomas comes into the picture, and that's the context for whatever he said. He was speaking to a man whose run for judicial office had been all wrapped up in the issue of whether a judge can or should elevate his own religious beliefs over constitutional interpretation. He was swearing that man into office, and giving him advice as he began his judicial role. So, the disturbing meaning of the statement attributed to Justice Thomas is all the more clear.

By the way, you offer palatable examples of what natural law theory might have led to, but the view is decidedly one-sided. Pro-slavery and (later) pro-segregation judges could have, and did, claim to have natural law on their side, too. Plus, I wonder whether one can really call Justice Thomas a natural-law theorist, given (e.g.) his dissent in Hudson v. McMillian and other cases in which he offers a cramped interpretation of constitutional language where any reasonable "natural rights/rights of man" theory would have led him to a more humane result.

 
At Monday, 17 January, 2005, Blogger sam said...

Also, however, see an update on my site (linked from my name below) suggesting, based on what appears to be a transcript of Justice Parker's remarks, that a different interpretation of the remarks attributed to Justice Thomas is possible.

 
At Wednesday, 19 January, 2005, Blogger GrenfellHunt said...

Dear Sam:

Here are some thoughts: Sorry if this is longer than I planned!

You write:

"The content...drew a distinction between one's oath to God and one's oath to the Constitution, and said that a judge is to be evaluated on the former rather than the latter. Any natural law theorist who was working within the American tradition would -- if he was making the point that you are trying to make -- have to say something quite different, something to the effect that the two oaths are congruent."

No, not necessarily. In fact, one of the classical texts in natural law theory is Aristotle's Rhetoric I.13 where universal natural law is presented as the basis for appeal precisely over and against the written law of a community. I would suppose that Martin Luther King's Letter from a Birmingham Jail could be made to fit in here. MLK was a private citizen, of course. But if he had been a public official, he still would not have obeyed or enforced segregationist laws: he would have preferred the laws of God to the laws of man, and he would have stated his opposition to those laws in pretty much exactly those terms. That would not have made MLK a theocrat in any way, shape or form.

You write:
"The context is that the Justice whom he was swearing in, was elected because he aligned himself with former Ala. Chief Justice Roy Moore, who was the most striking modern example of a judge who put his own perceptions of what God wanted, over his obligations to the Constitution...He was speaking to a man whose run for judicial office had been all wrapped up in the issue of whether a judge can or should elevate his own religious beliefs over constitutional interpretation."

I don't have much of a brief for Judge Moore, but where did Judge Moore claim "to elevate his religious beliefs over constitutional interpretation"? Wouldn't it be more accurate to say that Judge Moore had some deeply (stubbornly?) held beliefs about constitutional interpretation, and refused to obey higher courts that disagreed with him? This might make him: a) mistaken on a point of First Amendment law; and b) insubordinate--but even combined these points wouldn't prove that he is a theocrat...let alone that Thomas is. If--in exasperation!--it is suggested that Moore is exactly the kind of man who OUGHT to be labelled a theocrat, then perhaps we need a good legal definition of what a theocrat is.

I mentioned in my post on your site that I don't think the term theocracy should be thrown around loosely. And I think it will be tough to find any significant American political figure who would meet the definition of theocracy found in any standard dictionary. But here are some questions:

1. Are all differences about the meaning of the First Amendment to discussed under the rubric "theocracy"? Can two good Americans, both equally loyal to the Consitution, have differing views about the First Amendment without one party being a theocrat?
2. If I support keeping "In God We Trust" on the currency, does that make me a theocrat?
3. If I support keeping "one nation under God" in the pledge of allegiance, does that make me a theocrat?
4. If the answer to question 2 or 3 is yes, is the Declaration of Independence a theocratic document also?

Let me put my stakes in this debate front and center: The mainstream tradition in Western philosophy from Aristotle through much of the nineteenth century believed that there was one God who ruled the universe, and that this could be proved in a variety of ways through human reason--without appeal to faith or religion. The Founding Fathers believed that the human rights on which democracy is founded came from the God who was known by human reason, and Jefferson was very clear that any effort to sever this link threatened democracy itself. Precisely because the existence of God was known through right reason, the Founders could two positions simultaneously that seem contradictory to some moderns: 1) the various religions based on knowldge of God through faith (Catholic, Baptist, Jewish, etc) were separated by a legal wall from control of the government; 2) general non-denominational public expressions of God were not only permitted but encouraged.

I think the Founders' approach is completely correct--both philosophically, and as an expression of good democratic government. Others however seem to think that any public reference to God is an act of "religion" which needs to be purged from the public sphere. I think that view is historically wrong as an interpretation of the Constitution. I think it is philosophically philistine--a failure to engage with some of the greatest minds in the Western tradition from Maimonides to Maritain. I think finally it fails to appreciate the wisdom of Jefferson's point: Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?--a wisdom I take to be amply justified by the twentieth century experience of totalitarianism.

You may of course take a different view, but I want my own views and motives clear. I have no interest in establishing theocracy, establishing a state religion, or declaring the US to be legally a Christian nation. I am rather concerned that the philosophical and moral foundations of American democracy remain intact--and that the Republic be as free as its Founders were to invoke the divine as a legitimate principal of public life.


FOOTNOTE:
You write:
"By the way, you offer palatable examples of what natural law theory might have led to, but the view is decidedly one-sided. Pro-slavery and (later) pro-segregation judges could have, and did, claim to have natural law on their side, too."

Absolutely right. Every school of constitutional interpretation is capable of generating results that we might agree on as absurd or objectionable. This is no more true of natural law theory than any theory of constitutional interpretation. My point was very straight-forward: in listing the examples that I did I wanted to make clear that nothing about natural law theory suggests that it supports theocracy. I think we agree?

 

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