Thurgood Marshall was the Good Guy in this story

Thurgood Marshall was the Good Guy in this story August 30, 2022

Adventus blogger rmj flags an uncharacteristic pratfall from Stanley Hauerwas.

I think rmj may be too charitable in his response here, turning to Wittgenstein and merely chiding Hauerwas for confusing which “language games” were in play. I think the error here is uglier, and therefore worse, than that. I think it’s actually a colossal self-own — an inadvertent self-refutation of the very case Hauerwas is trying to make.

Here’s the passage from Hauerwas:

I can illustrate what I mean by suggesting that rights language has become too powerful by calling attention to a remark by someone who I believe was in the Department of Justice during the Civil Rights campaign in Mississippi. Several Civil Rights Workers had been killed, the spokesman for the Department of Justice was appropriately outraged. In order to express his outrage he resorted to the moral vocabulary in which he most felt at home.  He said those who had been killed had had their rights violated.  When “rights” become a more basic moral description than murder you have an indication that your language has gone on a holiday.

Of course, one cannot help but have sympathy for the Department of Justice representative.  He was using the most significant language he knew to indicate what a horrible moral crime had been committed.  Yet the very appeal to the violation of rights as fundamental moral description may indicate a profound worry about such a morality.  For if confidence in the language of rights is lost it is not clear what the alternative to nihilism will be. I worry, therefore, that for many reasons some are trying to make the language of rights do more work than it is capable of doing.

As rmj notes, Hauerwas’ assumption about the invocation of “civil rights” here is mistaken. But it’s mistaken in a way that also seems to prove the opposite of what the theologian intends.

He imagines that the Department of Justice is morally stunted because it lacks the firm foundation of sectarian morality which alone has the ability to condemn murder as “a horrible moral crime.” These secular, liberal fools at the DOJ, he argues, can’t even condemn murder as wrong because they’re so captive to their secular, liberal “rights” language and thought, which is why we Christians must eschew such language and thought, rejecting it in favor of our superior, sectarian morality. It’s a variation of a scolding lecture denouncing secular liberalism that Hauerwas has delivered dozens of times.*

Deputy Cecil Price and Sheriff Lawrence A. Rainey during their trial in Mississippi (photo by Paul Reed of LIFE magazine).

I’m still a bit puzzled by the premise of this argument, which seems to be that the unredeemed, in the fallen state of original sin, lack the knowledge of good and evil. That seems hard to square with our sectarian story Of Man’s First Disobedience, and the Fruit Of that Forbidden Tree, whose mortal taste Brought Death into the World, and all our woe.**

But what trips up Hauerwas’ argument here is his misunderstanding of the facts of the case, which seems to be United States v. Price, better known as the “Mississippi Burning” trial following the murders of James Chaney, Andrew Goodman, and Michael Schwerner. The DOJ could not pursue a murder case against the murderers because of double jeopardy. They had already been “tried” and brazenly acquitted for the charge of murder by the state of Mississippi, where all-white-Christian juries had refused to find a bunch of good old boys guilty of murder just for killing some outside agitator Blacks and Jews. (Even after the second trial, Klansman and White Christian clergyman Edgar Ray Killen “went free after a lone juror couldn’t bring herself to convict a Baptist preacher.”)

In other words, the situation was the opposite of what Hauerwas argues. It was precisely the sectarian community of white Christianity that lacked any understanding or significant language “to indicate what a horrible moral crime had been committed.” White Christianity was the flaccid, feckless value system here that failed to treat this crime as a crime. It was the secular, liberal Department of Justice that was capable of prosecuting the crime, and it did so by invoking the very rights language Hauerwas criticizes as useless. If the good white Christians of Mississippi want to allow murderers to act with impunity, then the DOJ would have to step in — skirting double jeopardy by prosecuting those murderers for violating the civil rights of their victims.

I don’t know who the DOJ “spokesman” Hauerwas is referring to was, but the person who made the actual argument to prosecute the case because the victims “had had their rights violated” was Solicitor General Thurgood Marshall:

On June 21, 1964 Cecil Ray Price, a sheriff’s deputy, detained three civil rights workers, Michael Henry Schwerner, James Earl Chaney, and Andrew Goodman, in the Neshoba County Jail, in Philadelphia, Mississippi. That night, Price released all three men from custody, and then drove his police cruiser to intercept them on Mississippi Highway 19. Price accosted the three men, placed them in his police car, and then drove them down an unpaved road. There Price and seventeen other men, including both local citizens and members of the Philadelphia, Mississippi Police Department, executed the three men and dumped their bodies in a construction site. All eighteen defendants were subsequently arrested and were indicted by a Grand Jury on January 15, 1965 for violating federal statutes. The first statute, 18 U.S.C.S. 241, dealt with criminal conspiracies. The second statute, 18 U.S.C.S. 242, criminalized anyone acting under the color of law from depriving any of the rights, privileges, or immunities guaranteed by the Constitution.

Somebody’s moral language and moral reasoning may “have gone on a holiday” here, but it certainly wasn’t Marshall’s.

When the sectarian morality of white-/Christian-nationalism was unable even to state that murder is immoral, the secular liberals of the Department of Justice were at least able to backstop the patent injustice of that sectarian religious immorality by stepping in to prosecute the murderers for criminal conspiracy and for depriving their victims of the rights, privileges, and immunities guaranteed by the secular, liberal Constitution.

It may seem odd here that I’m pouncing on an old misstep by a theologian I generally admire, but this illustrates a fault-line between Hauerwas’ broadly Anabaptist outlook and my own Baptist view. Anabaptists tend to regard secular government as Babylon, Rome, or Pharaoh — something to be lamented and endured while nurturing an alternative, dissident community that is uniquely capable of maintaining true morality in opposition to it. We Baptists, on the other hand, are big fans of secular government. And we don’t just like the idea, we insist on it as a necessary guarantor of soul freedom — freedom of conscience and the religious pluralism that entails.

While I find much to admire in the Anabaptist arguments of folks like Hauerwas and whatever can be retained of Yoder, I still land on the side of Roger Williams and MLK here. Among other things, that allows me to aspire to, rather than to despair of, participation in “government of the people, by the people, for the people.”

There’s a whole theological argument here that gets weedy and dense and sometimes abstract, but there’s also a more pragmatic argument to be made about the extent to which the “Christian colony” ideal championed by our Anabaptist cousins actually works or even exists. That seems particularly timely and urgent for me right now, in Pennsylvania in 2022, as it appears that the Neo-Confederate antisemite white-/Christian-nationalist running for governor of my state is banking on support from Mennonite and Amish voters drawn to him by exactly the sort of sectarian opposition to secular government Hauerwas argues above.

In short, then, two things: 1) Thurgood Marshall was the Good Guy in the story; 2) I now have two “Josh Shapiro for Governor” yard signs and plan to spend several Sundays between now and November knocking on doors for his campaign because it’s massively important.

* Willie James Jennings notes that Hauerwas’ Resident Aliens: “… captured the feel of the times at the tail end of the Reagan revolution, along with the retreat of progressive coalitions and politics and the rise of a new class of intellectuals who would come to be called neoconservatives. In fact, the book had the feel of the neocon texts that were emerging at that time. It paralleled their critique of liberalism, their diagnosis of a fading moralistic American identity, and their demand for a disciplined role for government.”

There’s a lot to unpack there — and a lot more in Jennings’ critical-but-appreciative assessment of the book — but in part I read that as an extremely diplomatic way of saying, “If you wrote that stuff in the hopes that Neuhaus would like it, then congratulations, Neuhaus liked it.”

The part of Jennings’ essay I’m gonna chew on for a while is this bit: “[Resident Aliens] gave us an idea of Christian identity as a wall with a door and not a door in a wall.” That’s almost a koan.

** I never made it all the way through “Paradise Lost,” but I still know those opening lines from memory because I once played one of the chimpanzees in David Ives’ “Words, Words, Words.”

One of the things I particularly liked about the TV adaptation of Good Omens was the emphasis on this strange aspect of that story in Genesis 2-3, that “all our woe” stems from partaking in the knowledge of good and evil. Sheen and Tennant seem to lean into that, playing their angel and demon characters as untainted by the fruit of that tree and, therefore, uncursed by that knowledge.

That’s a better approach to that story of “Man’s First Disobedience” than the odd rejection of it we find in many theologians, who act as though Adam and Eve ate the fruit of the tree of Corruption or of Total Depravity, and thereby lost the very thing the story says they gained, the knowledge of good and evil. If you read the story that way, then you’re likelier to imagine that any non-sectarian government of fallen humans will be incapable of knowing right from wrong. You’ll wind up disagreeing with Niebuhr’s contention that “Humanity’s capacity for justice makes democracy possible, while humanity’s capacity for injustice makes democracy necessary.” And you may even wind up supporting anti-democracy Orbanite candidates who seek to end free elections in the commonwealth.


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