Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on the basis of race, color, religion, sex and national origin. Congress never had “sexual orientation” in mind, and has consistently declined to broaden the ban to include it. Recently, in Bostock v. Clayton County, the Supreme Court declared, by fiat, that the language of Title VII does include it. This on a par with saying that “I have some apples” means “I have some marbles,” or that “Close the door” means “Open it.” It isn’t interpreting the law, but rewriting it.
Imagine what will now happen, say, to an elementary school that declines to employ transvestites, or an organization for the promotion of traditional sexual ethics that wants to employ only persons who accept traditional sexual ethics. We are faced with a second and more radical sexual revolution, this time attacking the very nature of human beings as men and women, undesired by common people but enforced by elites, rigidly suppressing dissenters in the name of toleration.
Just to put some thoughts in order, I had composed the following reflections on the interpretation of law some months ago. I didn’t have the pending decision in mind, and wasn’t even thinking about sexuality. However, I held off posting them, not because I was waiting for Bostock, but because they seemed a little too obvious.
That was a mistake. In times like these, the restatement of the obvious is never superfluous or unnecessary.
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Just how to apportion authority between legislators and judges cannot be worked out just by reasoning from the first principles of natural law; it requires prudent judgment about which constitutional arrangement will work best under one’s circumstances. For example, in ancient Israel, there was no legislature that made law; Torah was the law. What remained was to adjudicate cases. For this reason, the rulers were not called lawmakers, but judges.
Israel was a special case, with divinely revealed ordinances. Most political thinkers, in most times and places, have thought it good to have one body of persons who make the law, and another body of persons who adjudicate cases. This is our own constitutional arrangement.
Just so there will be no misunderstanding, let us assume that we are speaking of just law, not of unjust law, which, as St. Augustine had argued, is not a true law but rather an act of violence. Unjust enactments raise special problems that I will not consider here.
Now it seems nonsensical to say that judges may adjudicate cases without reference to the law; in that case, why have legislators at all? But in order to adjudicate case according to the law, judges must know what the law means. The common sense way to understand what anyone says is to consider what he intended to convey by saying it. That applies equally to legislative enactments. I can see no reason for taking the meaning of a law to be something other than what the lawmakers intended unless the motive is not to discern but to evade what it means. “Theories of interpretation” that do propose such things are not really about interpretation at all. They are incompatible with the rule of law.
Now to understand what someone intended to convey by saying something – whether what your friend intended to convey by saying “Good morning,” or what the lawmaker intended to convey by the law -- one must first consider the words that were used. Are there ever any reasons to go beyond the words?
Yes. First, additional evidence of intention may be necessary if the words of the law are unclear.
Second, one must construe the law with a presumption that the lawmakers intended justice and the common good. The term “justice,” here, must be taken in the traditional sense, as meaning not “what my ideology demands” but “what is due to persons.” So if one of two ways of construing the words of a law would lead to results obviously contrary to justice – for example, if it would result in penalizing the innocent while giving benefits to the guilty – then one must assume that the lawmakers would have intended the second way. Would we follow this procedure if we were interpreting the remarks of an embezzler? Of course not. But a political community is a partnership in a good life, or ought to be.
Third, it might happen that doing exactly what the words of the law direct would lead to a result obviously contrary to justice and the common good in a particular case even though not in general. Thomas Aquinas illustrates this point with a law requiring that the gates of the city be kept closed. Although in general the law promotes the common good, there might be a case in which it doesn’t – for example if the enemy are pursuing the defenders of the city, so that the common good would suffer if they were not let in. The problem here isn’t that what the lawmakers intended was unclear; they intended the gates to be kept closed. But the intention of keeping them closed was for the sake of a still deeper intention, the city’s safety. So if in the emergency one were to ask them, “Do you intend us to do what you said to do?”, they would say “Certainly not!” And if there were no time to consult them, then other officials – and this includes judges – must act on that assumption. When judges do this, it is called “equitable” judgment.
So we have three cases in which judges might have to consider more than the words of the law. But even in these three cases, (1) they should not treat the words of the law as more obscure than they really are, (2) they should not substitute their own judgment of what the common good requires for the judgement of the legislators themselves, and (3) they must not pretend that a given case is one of those in which even the legislators would agree that exactly following the words of the law would undermine the common good when this is actually not the case.
We also have a problem if the law sketches only the broad outlines of what should be done instead of setting it out precisely. Someone has to fill in the blanks, which St. Thomas calls “determination.” The question in such a case is who has the authority to fill in the blanks. In some constitutional systems, filling in the blanks is largely left to judges and executive officials. With standing legislatures, this seems unnecessary. The discretion of judges and executive officials about how to fill in the blanks should be limited and subject to correction from the lawmakers.
The fly in this ointment is that the lawmakers may be perfectly happy for judges and executive officials to exceed their remit, merely because they would rather that someone else takes the heat for controversial decisions. This poisonous motive might even be so strong as to overturn the arrangement that the constitutional framers intended.
In the modern regulatory state, matters are so arranged that the legislature often sketches only the broad outlines of what should be done, then instructs other officials to make the most important decisions. Lawmakers lay out broad goals that are somehow to be accomplished, leaving it to the bureaucracy and the judiciary to decide on the means of accomplishment.
But an authentic law is an ordinance of reason, for the common good, made by competent public authority, and promulgated or made known. I think the way we arrange things in the modern regulatory state violates at least two of these four conditions. Why? Because it leads to such an explosion of regulations and judicial decisions that not even the experts can keep track of all of them or figure out what they mean, and in their hidden complexity they sometimes even require contradictory things. If a body of enactments does command contradictory things, it cannot be considered an ordinance of reason. And if it is too complicated for anyone to understand, it cannot be said to have been made known.
But if the enactment does violate either the first or the fourth condition, then it also violates the second, that law must uphold the common good. So perhaps the only one of the four elements it doesn’t violate is that law must be made by competent public authority. But perhaps an arrangement that cannot lead to consistent, known law should not even be regarded as competent. So perhaps a great many edicts of the modern regulatory state do not satisfy any of the criteria that make edicts truly lawful.
This conclusion would not justify overthrowing the regime. One should not consider extreme measures unless one is under an extreme tyranny, and besides, it is difficult to find a way of overturning a disordered regime that does not itself violate the principles of justice and the common good. But it would certainly justify profound and determined reform.
Just a little thought about unanticipated consequences.
According to Thomas Aquinas, what makes the immortality of the soul believable apart from revelation is the power of the mind to grasp universals – an ability that transcends the bodily senses, because the eye sees only this apple, and the ear hears only this robin. This shows that there is something about the soul that does not depend on the body. Consequently, the soul is not snuffed out when the body dies. While awaiting the resurrection of the body, it continues in existence.
But William of Ockham says there are no universals; nothing exists but singulars. I think nominalism is incoherent – but suppose it were true. If there are no universals, then there is no power of the mind to grasp them. If there is no power of the mind to grasp them, then there is nothing about the soul that transcends the body. If there is nothing about the soul that transcends the body, then there is no reason to think that the soul survives the body’s death. So if he denies universals, it’s hard to see why he shouldn’t deny immortality too. At best he might suppose that in the resurrection, God recreates the soul, raising a serious question about identity.
The ancient pagans believed their gods were real, because they took so long to make them up that they forgot having done it. Although today’s neo-pagans, who make up their gods all at once, don’t have that excuse, they only half-know that they are doing it. Sometimes, as in the feminist goddess cults, the devotees seem to be practicing a weird make-believe. Sometimes, as in Satanism, it is hard to tell what they think they are doing, for in theory they are worshipping evil, but in practice they are worshipping pleasure. Sometimes, as in what might be called Saganism, they are trying to invest things that are very, very big, like the material cosmos, with the awe that should be given to their Creator.
With some exceptions, at this point in history most neo-pagans don’t know that they have gods. When they say they don’t believe in God, they mean they don’t believe in that god. In fact each gives everything for some dream of vastness, wealth, excitement, sex, control, irresponsible gratification of the will, or some other vain thing, all without knowing that this is worship. How long the delusion of having no gods can persist, I don’t know.
It is strange that neo-pagans think that the God of whom Jews and Christians speak is just another lie of the poets, as Jove was. I call it strange because the first canon of the rational mind is that there are reasons for things. Moreover there has to be a First Reason, because an infinite regress of reasons for things is no reason at all. Ultimately, then, whatever does not have to be must depend on something that does. This First Reason, the God of Jews and Christians, is the One who does have to be, the necessary reality on whom all other reality depends.
To reject this God, then, is to say that there don’t have to be reasons for things, that in the end, nothing has to make sense. And let us be very clear: No one who believes that things don’t have to make sense has any business saying that anything at all is true or false. For how would he know?
To come back to Jove: Pagan religion didn’t believe in a First Reason. Though Edith Hamilton writes that “the terrifying irrational has no place in classical mythology,” this is itself a myth. Classical mythology was more or less explicit about nothing making sense. It didn’t picture the First Reason creating all things from nothing and then calling all things back to Himself. Rather it pictured the gods themselves coming from the void. Since everything was held up by chaos, ultimately nothing was held up at all. All light was drawn back to that unreason like dark homing pigeons. Let us give the Greeks and Romans this: They tried not to speak more of their dirty secret than they had to. Though the Norsemen, their minds filled with Ragnarök, could hardly speak of anything else, let us give them some credit too: They were brave about it.
If nothing has to make sense, then reason is no more than a special case of unreason. We ought to recognize this state of affairs, because our own materialists are in the same pickle. Matter doesn’t have to be, so if you are a materialist, believing in nothing but matter, you must believe that things that don’t have to be just are – that no explanation is needed. Question: “Why is there something and not rather nothing?” Answer: “Hey, whatever.” And so causes, effects, and explanations creep from the womb of darkness. Sanity perches on a twig at the edge of a chasm.
Though the pagan philosophers came from the same pagan culture, the greatest of them – Plato, Aristotle, some of the Stoics – did not view reason as just a special case of unreason. In this, their radicalism has been underrated. They grasped that reason rules. Some of them even fought through to the realization that if this so, then yes, there must be a First Reason. Though merely as a convenience, sometimes they borrowed pre-existing names like “Jove” for the First Reason, they were well aware that if God was this, then He was far from the Jove of the poets.
It never occurred to them that one could know the First Reason face to face, any more than the characters in a story could know the author.
But what if He made Himself known?
In the city of the philosophers, St. Paul said to some of these men, I see that you acknowledge the Unknown God. Let me tell you Who He is.
Instead of enjoying his vocation, he thinks that his vocation is enjoyment.
Novelist and writing teacher Claire Messud, addressing the class of 2020: “You’ve been asked to work harder and longer than students in past generations, and there has been increasingly little space for the immaterial superfluities that make life worthwhile – sitting outside with friends, talking, the breeze tickling your skin; listening, eyes closed, to the rhythm of the tides; reading War and Peace, or a cookbook, or a poem.”
Yes, that’s what we keep telling them.
Professor Messud has got the symptom right: There isn’t much silence, stillness, and quiet in our students’ lives. But have students really been asked to work harder and longer than students in past generations? I concede that this may be the case in the natural sciences. But in the liberal arts?
Judge for yourself. In early America, when our schools of higher education were just getting started, all students at Yale and Harvard studied Latin, Greek, and Hebrew. They read the classical authors in the original languages, which is how they learned history. They learned to master mathematics, classical logic, geography, natural science, ethics, metaphysics, and the discipline of argument, then called rhetoric. They recited, discussed, and engaged in disputations.
Those were undergraduates.
Today, core courses have been almost entirely replaced by distribution requirements – choose one from column A, one from column B, and one from column C. Much of the curriculum has been politicized, and the pragmatist notion that skills are more important than facts is accepted without question, as though it were possible to learn skills without the facts to use them on. Though my own institution has higher than average admission standards, many of my students read at what used to be considered high school level. By empowering them to evaluate their own teachers, the universities put weapons in their hands to punish the few who do work them hard.
The lives of our students do lack quiet -- chiefly for the same reason the lives of their elders lack quiet: It is a choice. For when the soul becomes silent and still, it may hear its thoughts, and if you live in a certain way, such thoughts are disturbing. The favored solutions are constant busyness, continuous noise, and trying to do many things at once.
I love my students, and I am not maligning them. Some of them are very bright and earnest, and would love to be taught the liberal arts, but we are not teaching them. Every now and then a student visits my office to say, “I’ve come to realize that I’m not getting a real education. How can I become an educated person?”
If you are that kind of student, I tell you now: Don’t settle. Don’t settle for what we spoon feed you. Don’t listen to those who tell you how hard you have been challenged. There is so much more! It’s not too late. With guidance and strong motivation, you can still receive an education. The one fatal error is to suppose that we will give it to you without a fight.
Opening quotations from Claire Messud,
“A Moment for Inward Pilgrimages,”
The Wall Street Journal
(2-3 May 2020), p. C3
I mentioned in a previous post that some people think we ought to practice social distancing not just while the epidemic runs its course, but from now on.
In a world in which more people than ever before think that when you die, you’re nothing but worm food, it’s hard to resist the idea that this sort of hysteria is connected with other common ones.
Fear of death, of course. Fixation on control of self. Fixation on control of others. Avoidance of things that threaten such control, such as marrying and having children. Obsession with bodily satisfaction, bodily beauty, and bodily perfection.
Not to mention abortion, suicide, and all that sort of thing. Sometimes even things that seem opposites grow from the same root.
Now I’ve seen everything: Boutique rioting.
A crowd floating down Austin’s famous Sixth Street. Young men holding hands with their girl friends, strolling along and looking. Every third person taking a video or selfie.
And in the background, a store being looted.
The mayor says he is pleased that some of them are wearing masks.