Virtue and Power: The Political Dysphoria of Natural Law Moral Philosophy

The premise of The Creation Project is that we will never understand and address the cognitive and existential dread the Donald Trump phenomenon has unleashed by merely parsing the man or the immediate circumstances surrounding his election and its aftermath.

In a period marked by the unprecedented unraveling of the geological and biological premises of our existence, normal political talking points, policy wonkery, and electoral shenanigans are not sufficient tools for the job. To understand this cultural and political inversion, and to grasp the sources of our emotional dislocation, we must travel deep into Western thought and engage a broad sweep of Western history.

The Creation Project thus takes as its starting point an irony. We need to filter the political impact and significance of Donald Trump, (a crude and simple man), and “Make America Great Again” (a crude and simple concept) by embracing new frontiers on thought and action that emerging theories and studies of complexity science and of complex systems have made available to us. The Creation Project seeks to apply this emerging literature on complexity to the ways in which we think about, inhabit, imagine, and use “history,” those grand narratives we create to explain and justify ourselves.

Natural Law and Donald Trump

Following the 2016 presidential election, I wrote a series of essays that probed the rising influence of an intellectually sophisticated and aggressively conservative Catholic cohort in American politics, with a range that extended from court jester Antonin Scalia to political arsonist Steve Bannon to philosopher-muse Robby George. The premise of many of these essays was that our historical moment’s revanchist political conservatism – in the United States and in Europe – derives directly and without equivocation from Catholic-influenced conceptions of natural law.

The Aristotelian philosophical foundations of natural law are politically neutral, and can be explored, debated, adjusted, refined, and refuted on their merits. However, the religious spin on natural law ideas in the current political environment – the belief that Creator-centric Biblical revelation frames and determines content and the outcomes of these “laws of nature” – is not politically neutral and is, in fact, intensely agenda-driven.

To the degree that natural law cloaks and obscures this underlying Biblical agenda, its political and philosophical influence have in recent decades served profoundly counterproductive and destructive ends.

A Hyper-Conservative Republican Sea Monster

As Jane Mayer and others have documented, the Tea Party, bomb-throwing wing of the Republican Party did not magically seize power. Donald Trump’s election is only the latest – if most surreal – chapter of a slow-motion, half-century political creep on to land of a hyper-conservative Republican sea monster,.

Let’s consider the beast an inflected version of the Deep State that leverages the ideas and arguments of conservative Catholic intellectuals alongside the influence of market, cultural, and legal fundamentalists. With specific impacts from canonically minded American judges on the federal bench, and their sponsors at well-funded advocacy organizations such as the Heritage Foundation, Federalist Society, and Judicial Crisis Network.

Indeed, far from subsisting as a beleaguered fringe in the Siberian wastelands of the academy, as they would like us to believe, intellectual proponents of Catholic natural law and moral philosophy are engaged, well-funded, and firmly in control of the public lexicon on the most critical and fraught policy debates of our moment in time, including conversations about:

• the global “clash of civilizations”;
• the underlying meaning of terms such as “human dignity” and “unalienable rights”;
• what it means to serve “the least among us”; and
• the fraught intersection between human sexuality and human conception.

Interestingly, evangelical Protestantism – philosophically primitive, politically shallow, and explicitly stuck in the Biblical wilderness – remains largely irrelevant to this conversation. For the dominant constituents of the American conservative movement (tuned to the smash-mouth, Irish-Catholic Steve Bannon frequency), ideas are the tool that claims for us, not grace or justification, but power, the zero-sum, terrestrial control of both bodies and minds.

Existential Risk Requires Existential Thinking

But here’s the concern. When it comes to anthropogenic climate change, breaching inequality, toxically “illiberal” nationalism, and generational abandonment – we have unhinged ourselves and crossed a global point of no return that half-measures cannot address. Unfortunately, for the most part the scale of our thinking on these matters does not even approximately match the scale of our risk.

Of course, it is tempting – given the scale of the problem and of the potential harm, and the general uncertainty of the causation – to minimize or dismiss these concerns. To wish them away, or to imagine the harm will come to others and not to oneself. But the direction is clear, and the wager is entirely on the order of Pascal’s.

We need a robust, coherent framework for assessing the meaning of those distressing events or moments that unleash Donald Trump as that gallivanting, howling beast in our heads. Like a prophetic monstrosity from a Cormac McCarthy novel, we must scale the deviance of this single man, whom we have ourselves uplifted, to the dark singularity of the times and act accordingly.

Historical moments at the far end of this scale of risk – let’s call them extinction moments, radical disruptions beyond the scope of even the proverbial Black Swan, on a scale outside of human time and memory – require us to peel back vast slices of the past, lay bare the ground of our being as a species, and rebuild upon that purled soil. The most profound extinction moment, of course, would be extinction by our own hand of life on the planet as we know it.

The Big Think: Revealed Religion, Natural Law, and Western Civilization

Such extinction moments require us, with all the mental strength we can muster, to consciously look past the emotionally comfortable and familiar rituals of our minds, past problem-solving heuristics that work well enough in “normal” times, past nearly everything we regard as a given in our lives. For the next year, my intention is to do some extinction-appropriate purling, to scale my own thinking to the level of risk and challenge we face in the world.

With this goal in mind, The Creation Project will examine how the Catholic philosophy of natural law has intersected and sustained the very idea of “Western Civilization.” The defense of this idea – that the West represents the highest and most profound expression of a Christian God’s scrivened plan for the human species created in his image – buttresses and justifies and provides political cover for nearly every significant moment and movement of European and American history in the past millennium.

The Creation Project will explore and confront (immodestly, because we live in immodest times) layered, nested relationships between:

• Enlightenment conceptions of individuality, selfhood, agency, rationality, causation, and morality;
• Medieval premises of Thomist natural law and Catholic human dignity theology; and
• Primitive Christian religious beliefs founded on revelation and preserved via the fetish of the text.

By definition, the foundations of revealed religions are textually arbitrary, fragmented, and evanescent, and so in times of strife wholly inadequate as a basis for holding together societies under stress and at risk. The most pivotal argument of The Creation Project, then, will be that peeling back our past tells us that Abrahamic revealed religion – specifically Judaism, Christianity, and Islam – is the major obstacle obscuring our ability to grasp basic realities of our existence and blocking our capacity to address contemporary challenges to our existence.

Worship the Creation, Not the Creator

The alternative to Abrahamic revealed religion is simple enough. First, we do not need to worship an arbitrary, entirely preposterous concept of a Creator (himself created in our own inadequate human image). We need not base our thoughts and deeds on the flat, toneless, scriptural archaicisms we imagine to be representations of his will. Second, we can and must instead turn our attention to revealed truths that are far more “self-evident” and miraculous, the truths enfolded within the body of the earth, which is the Creation itself.

Of course, this “simple alternative” – to worship the Creation, not the Creator – requires from us nothing short of a collective cognitive epiphany that frees us to more fully appreciate the insights that post-Newtonian science offer us, regarding the layered, interlaced trellises that sustain life, the hidden movements that captured by concepts such as:

• uncertainty, randomness, probability, and stochastic processes that govern evolution;
• emergent morphologies, phase transitions, and fractal recursions that characterize complex physical, chemical, and biological systems;
• communication networks and information pathways that encode self-organizing systems and hive behavior; and, most poignantly,
• the curse of entropy – the relationships between fallibility and failure, resilience and endurance, death and life.

We can certainly sum these concepts as the miracle of Creation. We might assume that natural law philosophies would acknowledge and honor these hidden, yet magnificent, laws of nature, which is to some degree the case with the classical version of the philosophy of natural law associated with Aristotle.

However, the contemporary Catholic focus on a Creator-centric natural law cannot quit Biblically derived linear causation models that impel us back toward destructive creator-created and subject-object binaries. At the point we can finally abandon this linear causation logic, we can more fully and directly experience this Creation miracle immanent within nature itself, and better understand our place within it, and the interconnectedness that transcends the agency of any individual or any species.

Conversations on religious influences in American public life in the Trump era typically focus on white evangelical Protestant support for Donald Trump and the Christian nationalist wing of the Republican Party. The impact of Israeli-aligned Jewish political organizations and conservative Jewish political donors such as Sheldon Adelson is also well-known. However, the rise and organizational strength of American conservatism is, in fact, a remarkable 50-year saga of intellectual and theological penetration of the halls of power by a hard-right slice of the American Catholic community.

Catholic Demographics of American Conservative Politics

Catholicism, despite its cratering population of priests and shrinking appeal to younger white Americans, has today become the linchpin of an ethnically European, Christian nationalist insurgency that has captured the Republican party and control of the nation’s major governing institutions. This weird splice within the Catholic Church of institutional decline and political domination explain an enormous amount about the political situation in which we find ourselves.

Two demographic illustrations spotlight this Catholic transformation of American conservative politics. Following Senate confirmation of Brett Kavanaugh, 8 of the most recent 11 justices have had a Catholic background (all save one, Sonia Sotomayor, are rock-ribbed conservatives). Prior to the appointment of Antonin Scalia to the Supreme Court in 1986, only 6 of the previous 103 justices serving the first 197 years of the Court’s history had been Catholic (the first being Chief Justice Roger Taney of Dred Scott notoriety, appointed by Andrew Jackson in 1836).

Since 1965, the House of Representatives also has become increasingly Catholic, particularly within the Republican Party. Here are some bullets to capture the flavor of this shift toward a dramatically more Catholic Congress, and a remarkably more Catholic Republican Congressional cohort.

• In 1965, 94 self-identified Catholics served in the House, a bit less than 22 percent of the full body, and about 4 percent less than the percentage of Catholics in the nation.
• In 2017, 145 Catholics served in the House, precisely 33 percent of the fully body, and a full 12 percent more than the percentage of Catholics in the nation.
• In 1965, Catholics in the House of Representatives constituted 27 percent of the Democratic Party and only 9 percent of the Republican Party.
• By 2017, 38 percent of Democratic representatives identified as Catholic, alongside nearly 30 percent of Republicans!

Thomist Natural Law and the Defense of Western Civilization

The underlying organizational and intellectual impetus for this transformation derives from a peculiar influence of medieval Thomist philosophical perspectives – on natural law, in particular – that have in the last 50 years claimed the soul of the Republican Party and infused its perspectives on constitutional law, policy prescriptions, electoral politics, and approaches to governance.

St. Thomas Aquinas’s grand synthesis of Aristotle and St. Augustine in the Summa Theologica spells out the principles of natural law philosophy, which both absorbs (from revelation and scripture) and communicates (into public discourse and legal practice) a quite specific understanding of the human individual as the summit of God’s creation, shaped in the image of God himself. The vocabulary of natural law philosophy organizes itself around this concept of the imago Dei, which supports conceptions of practical law that must, by definition, defer to “higher laws” derived from holy texts of dubious origins, with unverifiable truth claims, and with uncertain and hence malleable implications.

Neo-Thomist philosophies of natural law (most specifically, the “new” natural law articulated since the 1960s by Catholic moral philosophers Germain Grisez, John Finnis, Hadley Arkes, and Robert George) today frame and help to shape for public consumption traditional precepts of Roman Catholic theology. These precepts apply most closely to human life/human dignity issues associated with reproductive, sexual, and gender politics (specifically, contraception, abortion, and sexual identity), based on fixed teleological conceptions of the unique nature and purpose of each individual and each life-form.

For example, Catholic philosophies of the “new” natural law emphasize that God created two types of humans, the male and the female, whose purpose was to be fruitful and multiply. The institutions of marriage and family and the functional act of sex serve the purpose of procreation. Behavior outside the boundaries of these teleologies – such as premarital sex, contraception, and homosexuality – shreds these institutions, dishonors God, and deforms man. One can easily witness the host of Gilead-like outcomes that this perspective might produce (and has produced) in terms of the ability of ordinary people, particularly from marginalized groups, to own and control choices that involve their own bodies.

These natural law precepts have in recent decades also reinforced a larger identity politics organized around the preservation of shared European racial, ethnic, and religious origins – the concept of a “Western Civilization” that first emerged as a call to arms during the Crusades and that is often linked by its defenders to Christian Catholic ideas and institutions that surfaced and solidified in the 12th and 13th centuries, partly as a response to engagement with the Islamic regions of the Middle East and North Africa.

Contemporary “radically traditionalist” Catholic ideas, values, and sensibilities now interpenetrate both elite and popular variants of conservative American political thought and every political institution of consequence, with impacts in the Trump era on policies, politics, and adjudication of every pressing issue of the day, including immigration, crime, employment, health care, education, civil rights, and foreign policy.

Catholicism’s Organizational Advantage

Roman Catholic influence in American politics began to mushroom in response to the Second Vatican Council (1962-1965), and more specifically to the crisis engendered by the 1973 Roe v. Wade decision. In the past 50 years, this influence has more generally sustained itself as an organizational and intellectual presence best evolved to exploit and respond the cultural uncertainty and flux of our times.

None of this happened by accident. The hegemony of Puritan/Protestant ideas/ideals in American history has always masked a specific organizational weakness. We can presume this organizational deficit is dispositionally endemic to fractional/fractious religious movements. In the case of American cultural formations associated with Protestantism, we can also speculate this institutional insufficiency was reinforced by the omnipresent option – dating back to the settlement patterns of 16^th-century Protestant sects – to separate, drift, disperse, and migrate. Or as Albert Hirschman’s paradigm might suggest, to exit. This weakness the Articles of Confederation expressed politically and the Constitution and doctrines of federalism barely masked.

American Catholics lacked both the recursive instincts to fractionalize of post-Reformation Protestantism and many of the first-mover settlement options of Protestant sects and communities that preceded the arrival to the United States of Catholic immigrants. But American Catholicism possessed a latent advantage that proved to be enormously functional in the decades following World War II, when economic growth and global reach allowed American Catholics to attain business and financial prominence and political influence that had previously eluded them.

That latent advantage was organizational, a capacity integral to an enormously sophisticated, globally minded religious enterprise with centuries of experience living fully within the City of Man even as it built bridges to the City of God – creating institutions, integrating empires, and making theory practical via the law. And when theory – the systematic elaboration of ideas about cause and consequence – becomes practical and programmatic, it suddenly also becomes powerful.

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Trump’s Catholics

Politically conservative Catholics serving Trump’s political ambitions since 2015, on his campaign and in his administration, have included: Michael Anton, Steve Bannon, Andrew Bremberg, Michael Caputo, KellyAnne Conway, Michael Flynn, Sebastian Gorka, Rudy Giuliani, John Kelly, Corey Lewandoski, Paul Manafort, Don McGahn, Linda McMahon, Mick Mulvaney, Carl Paladino, Mike Pompeo, Erik Prince, Mira Ricardel, Wilbur Ross, Matt Schlapp, Mercedes Schlapp, Dan Scavino, and (last but not least) Roger Stone.

The Creation Project excavates Western history using the conceptual tools of complexity science. The contemporary story that foregrounds this archeological dig emphasizes the philosophical and political influence in the past five decades of a reactionary slice of American Catholicism. In this period, the ideas, organizations, and personalities of impresarios ranging from Antonin Scalia to Robert George to Leonard Leo to Steve Bannon have driven wedge politics and moved the political landscape decisively to the right.

This focus on “radical traditionalist” undercurrents of conservative American politics allows us to explore interesting, important, relevant, and hitherto underreported themes that inflect the conservative crusade to claim control of federal courts for the next 30 years. These themes include:

• the intellectual and organizational background to the political success of Culture War Catholics;
• the political influence of leading conservative Catholic intellectuals who use philosophies of natural law to frame their perspectives on politics and society; and
• the political meaning of the originalist and textualist philosophies of the Federalist Society and of the conservative judges whom they have worked to promote to the federal bench.

The effect of these undercurrents have been to shift American jurisprudence from a historically dominant “New England Protestant” legal culture based on traditions of English common law, commitments to legal precedent, and philosophies of positive law and legal realism to an emergent Catholic jurisprudence based on Thomist natural law and a Constitutional fundamentalism derived from the sacred text assumptions of revealed religion. The two most important bridge institutions of this shift toward a Catholic jurisprudence are The Heritage Foundation and The Federalist Society.

Post-War Loomings

Catholic perspectives informed the pontification of Cold War conservative intellectuals, although indirectly and unsystematically. William F. Buckley, also a (devout and mystically inclined) Irish-Catholic, remains for many the father of modern conservative ideology, a robust supporter of fellow Irish-Catholic and Trump precursor, Joseph McCarthy, whose chief counsel Roy Cohn became young Donald Trump’s chief fixer, and who organized his defense of both faith and markets in response to the secular and statist threats of godless communism. However, Buckley, whose legendary gift for the incendiary phrase and artful riposte routinely electrified and inspired his fan base, remained largely a man of words, consistently most comfortable interposing himself (to preserve an ironic space for his unique brand of commentary) between civil society and the halls of power.

At the same time, politically conservative philosophical perspectives established an institutional academic presence in diverse locations, specifically at the University of Chicago, where Leo Strauss held court, but also at tradition-minded Catholic colleges and universities such as Notre Dame and Georgetown and, more idiosyncratically, at smaller liberal arts colleges such as Claremont College and St. Johns College. The common mission of these institutions was to elucidate the intricacies of a disembodied, thematically timeless, literary canon dating to ancient Greek philosophy and threading its way forward through the medieval and early modern history of Europe, largely mediated by and in relation to Christian religious institutions and religious ideas that for centuries exercised dominion over European society. To get some of the flavor of this discourse, one can still read just about anything published in the Claremont Review of Books.

These philosophically driven liberal arts institutions also made more historically specific (and politically directed) claims about how classical and Christian conceptions informed the founding ideals of nationhood in the United States. Such deductions became the basis for theorizing from scholars such as Claremont’s Harry Jaffa (one of Leo Strauss’s first Ph.D. students at Chicago) about the American nation’s “unique” and “exceptional” world-historical status, derived from its embodiment of the principles of natural law and free markets. However, while conservatives in other academic disciplines, such as economics, could claim both sway and swag for the influence they exercised over government policy, the post-Roe generation of natural law philosophers – including John Finnis, Robert P. George, Germain Grisez, and Hadley Arkes – remained largely sequestered in their ivory towers.

During the 1970s and 1980s (as Jane Mayer and others have written), super-wealthy American businessmen, such as Charles Koch, who were deeply concerned about the direction of American politics and the corrosive effect upon their interests and values of liberal higher education and media establishments, began to systematically funnel vast amounts of money into foundations and think tanks explicitly designed to influence public opinion, public policy, and public morals. While much of this wealth funded libertarian public policy organizations like the Cato Institute, contributors also generously funded development, within the foundation/think tank world, of a neo-Thomist faith-based philosophy designed to spiritually moor the conservative political insurgency.

The Heritage Foundation and the Federalist Society are two of the most influential policy institutes to benefit from these infusions. Both organizations internalize and propagate the baseline precepts of Culture War Catholicism, and both have arguably become institutional foundations of Republican Party power no less significant than Fox News, and perhaps more dangerous because gilded with the sheen of academic respectability.

The Heritage Foundation

The Heritage Foundation was established in 1973 with early financial support from Joseph Coors. and under the leadership, initially, of Paul Weyrich, who was also a founder of the American Legislative Exchange Council (ALEC) and the Moral Majority. Weyrich, who also espoused Dominionism (think Sharia Law for Christians) was generally a hot piece of work functioning, in many respects, as his generation’s Steve Bannon.

Edwin Feulner served as president of the Heritage Foundation for 36 years (from 1977-2013), before briefly returning to this role following the ouster of Jim DeMint). Feulner’s specific organizational and tactical innovation marked a departure from the traditional approach of more “unbiased” and technocratically oriented think tanks such as the Brookings Institution.

Feulner imagined Heritage as both an ideas and advocacy organization, built not to respond after the fact to political and policy developments, but instead to proactively and aggressively shape and influence these developments in relation to philosophically grounded conservative commitments to free enterprise, limited government, individual liberty (including what has become known as “religious liberty”), a vague notion of “traditional” American values, and a strong national defense. Weyrich, and Feulner, both raised as Catholics (as was Coors), also infused their organization with a tough-minded, patristic edge deeply informed by the timeless truths associated with Biblical revelation, canon law, papal teachings, and natural law philosophy.

Heritage cares about political and moral philosophy, with large collections of reports and statements about the founders, conservatism, and progressivism. Heritage cares about religion, as a foundation for freedom, democracy, and civilization. Heritage also cares about laws and policies concerning education, sexuality, gender, conception, contraception, marriage, children, and the family, all of which Heritage views through the lens of religious liberty and an expansive definition of the First Amendment.

In other words, the Heritage Foundation cares about a host of matters that are of bedrock concern to the more conservative, flame-throwing wing of the Catholic Church hierarchy (those, like “St. Louis” Cardinal Raymond Leo Burke, who are more tuned to the Steve Bannon frequency) and that it addresses in rigorously neo-Thomistic philosophical language which one almost never encounters in other policy research environments (see lectures on natural law from Diarmuid O’Scannlain, Ryan Anderson, David Forte, and Russell Kirk).

The Federalist Society

With a narrower and more exclusively legal and constitutional focus, the Federalist Society in many respects operates as a junior partner of the Heritage Foundation on matter of legal and judicial policy and advocacy. The Society was founded in the early 1982 as a seedbed for nurturing conservative legal principles among students at otherwise “liberal” law schools.

Early supporters included Attorney General Edwin Meese, Solicitor-General Robert Bork, and Supreme Court Justice Antonin Scalia, who became the organization’s beloved godfather until his death in 2016. The Federalist Society’s membership has also included Supreme Court justices John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and literally every Trump nominee to the federal bench. Of course, Scalia, Roberts, Alito, Thomas, and Kavanaugh are (or were) all practicing Catholics, while Gorsuch was raised devoutly Catholic. Robert Bork converted to Catholicism in 1987 at the age of 76.

The Federalist Society’s Executive Vice President, Leonard Leo, is a devout Catholic who served three terms on the U.S. International Committee on Religious Freedom and performed outreach and strategy roles for the Catholic Church in U.S. political campaigns. Leo shepherded the Supreme Court Senate confirmations of John Roberts and Samuel Alito. Leo also closely guided the process that selected Neil Gorsuch and Brett Kavanaugh to fill the vacant seats of Antonin Scalia and Anthony Kennedy. Grandson of a Brooks Brothers vice-president, Leo is, as Jeffrey Toobin writes, the bella figura of the legal conservative movement, well-accoutered and unflappable. As Toobin also notes, Leonard Leo’s life “has been shaped as much by Catholicism as by conservatism.”

More focused on its education mission and less of a research body than the Heritage Foundation, the Federalist Society is specifically anchored to what I (but perhaps no one else) would argue is a Fideist commitment to constitutional originalism and textualism (the fetish of the text as holy writ shared with Thomist natural law proponents, Protestant evangelists, and Islamist fundamentalists alike). The Federalist Society also shares with the Heritage Foundation an ingrained belief in the natural law as precursor to and ultimate measure of positive law (hence the backbreaking efforts of many legal philosophers to claim the Constitution itself fully conforms to the natural law precepts of St. Thomas). A search on the Federalist Society website retrieves links to more than 300 publications or events that refer to natural law, including Judge Diarmuid O’Scannlain’s warm review of Hadley Arkes’s book, Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law).

While the overt influence of the traditional menu of Christian religion, sex, and family issues may be less pronounced in the education and advocacy work of the Federalist Society, the organization’s legal focus makes it an ideal vehicle for representing these values in the courtroom and in other public venues concerned with legal philosophy and jurisprudence.

Serving God and Mammon

The Heritage Foundation and Federalist Society are not austere temples for the mind. Unapologetically creatures of the City of Man, these organizations are awash in cash, endowments, and emoluments about which most of us can only dream. In 2016 (the year for their latest publicly available IRS form 990), Heritage, with 600 employees, disclosed annual revenue of more than $82 million, with net assets of more than $240 million, and with at least 14 employees earning more than $300,000 annually.

The Federalist Society is less research-oriented and far smaller than Heritage, with fewer than 100 employees, but in 2017 reported more than $20 million in revenue, more than $28 million in net assets, and at least four employees earning more than $300,000 annually (in 2016, Leonard Leo received compensation from The Federalist Society approaching $500,000).

The money by itself does not explain the influence of natural law concepts that frame and support nearly every program and policy initiative of the Heritage Foundation and Federalist Society. But the money is incredibly enabling because it serves as its own justification. Prestige and legitimacy (and hence confidence and assuredness) simply inhere to well-funded philosophers working in comfortable environments in proximity to other powerful people and institutions. Possibilities in life and in law that were once contingent for philosophers laboring in academic obscurity have become self-evident and natural for those now feted and fawned upon in the lap of ambient luxury. It’s good to be a Thomist.

Note: I wrote this essay a number of years ago, but am mindful of its relevance as we consider the Antonin Scalia legacy in the aftermath of his death, a task that remains especially vital as more than three years Mitch McConnell and Donald Trump have reshaped the entire federal judiciary in his image (including, of course, the Supreme Court). Yesterday, Donald Trump also announced his intention to nominate Scalia’s son Eugene, also an attorney, to replace Alexander Acosta as Labor Secretary.

Legal conservatives lionize Scalia. However, his impact on American jurisprudence and American society has been toxic, perhaps irredeemably so. Scalia’s medieval religious views and equally hidebound perspective on Constitutional Law epitomize what one might call an ontological fundamentalism that quite suddenly runs rampant in American political thought these days.

Here’s the essay, with some updates.

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Supreme Court Justice Antonin Scalia once remarked in a dissent that many dangers visit the Court in sheep’s clothing, “but this wolf comes as a wolf.” So too with Scalia.

We can attribute much of the contemporary sclerosis in national government to the crouching wolf at the door, the successful arrival on the national stage of the legal conservative movement. In the last 30 years — lovingly midwifed by the Federalist Society and lavishly sustained by frankly astonishing levels of financial support from conservative foundations, think tanks, and business associations — legal conservatives have steadily assumed more power and influence in public life. All the while black-cloaking their political agenda behind allegedly non-political, purely intellectual commitments to the original meaning of foundation legal documents, particularly the Constitution. All the while bleating like sheep about their beleaguered position at law schools and on the bench.

But Scalia, their champion, cannot help himself. He opens his robe. Inside he is all wolf.

Court Jester

Scalia swaggers. He intimidates. He’s Nino! Colorful, quotable, and charismatic. Brilliant and hard-working. Voluble and entertaining. Irrepressible and fearless. He can do it all. He writes. He hunts. He sires nine children. His words are swords, ambuscades of righteous religiosity aimed at the nation’s legal and moral deviants, its corrupt parasitic entrails. He is a lawyer’s lawyer. He could argue either side of a case and win. The liberals love him. He’s so charming and amusing. He disarms them. They fear him. His withering diatribes and clever insults.

Scalia is the Court Jester. His influence, however, also illustrates how legal conservatives have seized the palisades of American constitutional theory. Conservatives of all stripes  – libertarians, advocates of judicial restraint, federalists, Christian conservatives, law & economics partisans, executive power hawks  – have set aside their differences to present a united front on the infallibility of the Constitution. Their methods  – originalism and textualism – have become their madness. Scalia contains within himself and symbolizes their unity of vision and purpose. Nothing less than the full recalibration of American political life. A two-pronged strategy. Control the courts. Seize legislative majorities. Limit the scope of judicial activity to preserve the political primacy of state and national legislatures.

Jesuitical Casuistry

With six Roman Catholics on the Supreme Court, with five of them (Scalia, Clarence Thomas, Samuel Alito, John Roberts and Anthony Kennedy) theologically and intellectually and politically conservative as only well-educated Catholics can be, it is not unfair to characterize the legal conservative movement led by these justices as medieval in its intentions and Jesuitical in its methods. Here is where Scalia the wolf can instruct us on the impact of the broader flock of sheep in this legal movement, who are neither so brave nor so honest as Scalia in their self-justifications.

Scalia frankly attests to his opinions. “I’m a law-and-order guy. I mean, I confess I’m a social conservative, but it does not affect my views on cases.“

Well, who knows if his opinions do or do not affect his legal judgments? It does not matter, because the brilliance of Constitutional originalism and textualist exegesis is that SCOTUS conservatives will generally achieve the political outcomes they want simply by punting tough policy issues back to the legislative bodies.

So yes, there is some Jesuitical casuistry at play here, and Scalia (who was first in class at his Jesuit high school and Jesuit college), Clarence Thomas (graduate of a Jesuit college), and other leading judicial conservatives are entirely mindful that their formal methods and substantive goals harmonize. Scalia frequently cites his commitment to the First Amendment as proof that he does not hew to a doctrinal line. He supports the free speech of flag burners! But this commitment is the exception that proves the rule, for Scalia also supports the free speech rights of abortion clinic protesters and corporate campaign contributors. The active component of his commitment may be less to the First Amendment itself as a principle, and more to the character of those whose interests advance under the protection of the First Amendment.

Not surprisingly, Scalia could not conceal his wolfishness when he declared at the inaugural meeting of the Federalist Society in 1982 that among the Founders he preferred Alexander Hamilton, the sexy bad boy of the Constitutional Convention, to its nerdy goody-goody, James Madison. Indeed, despite some disingenuous protestations to the contrary, legal conservatives generally love the vigorous, independent executive first envisioned by Hamilton, an executive that projects its power far and wide, and does not concern itself overly much with trivialities such as human rights, international law, legal transparency, and the more inconvenient amendments to the Constitution (we might appropriately consider SCOTUS conservatives to be the rightful inheritors of the philosophically conceived political realism originating with 13th-century Scottish philosopher Duns Scotus).

Scalia’s Sheep

The Federalist Society is Scalia writ large and small. Writ large because the Federalist Society is the organizational expression of the legal conservative commitment, theologically conceived, to anchoring political life in the original, infallible meaning of the U.S. Constitution, which is their communion chalice, their Bible, their ark of the covenant. Writ small because the Federalist Society members, from founder Steven Calabresi to political philosophers such as Charles Kesler, all gripped with a perpetual sense of aggrievement, mewl incessantly about liberal elites and an activist judiciary, while shamelessly (wolfishly) advancing their own profoundly reactionary intellectual agenda.

The Federalist Society initially conceived itself as a political alternative within law schools to the activist National Lawyers Guild, a bête noir of conservatives since its establishment in the 1930s. Truly, the comparisons now ring hollow. In 2017, the Federalist Society, with more than 200 chapters at U.S. law schools and more than 70,000 practicing attorneys in 90 cities, reported revenues approaching $21 million and more than $28 million in net assets. Donors include libertarian industrialists, including the Koch brothers, Richard Mellon Scaife’s foundation and the Mercer family. By contrast, the National Lawyers Guild, with 5,000 members, and which has never benefited from the largesse of the wealthy and powerful, in 2016 reported only $712,000 in revenue, and merely $205,000 in net assets.

Progressive lawyers founded the American Constitution Society in 2001 following the disputed 2000 presidential election in which the Supreme Court, with dubious logic, handed the presidency to George W. Bush. The ACS claims to have 200 law school and practicing attorney chapters. In its most recent disclosures, for 2016, the ACS reported nearly $6 million in revenue and more than $5 million in net assets. A recent Politico article by Evan Mandery does a great job sussing out the differences between the Federalist Society and the ACS and explaining why legal conservatives have been so much more successful at building institutions that wraps around their ideas than legal progressives.

Leo Strauss and the Esoteric Method

Legal conservatism shelters under its umbrella a diverse set of intellectual approaches and philosophical commitments. Similarly, originalist and textualist methods derive from a range of intellectual traditions centered around a few key academic institutions: the University of Chicago, the Claremont Institute, and more indirectly Princeton University, Harvard University, the Hoover Institution, UCLA and George Mason University. Intellectual godfathers include political philosophers such as Leo Strauss, Allan Bloom, Harvey Mansfield, and Harry Jaffa, all of whom have employed a species of magical thinking about foundation political texts in the Western philosophical canon, beginning with Plato and extending to Nietzsche. These classically trained philosophers — often categorized as Straussians — have also branched their carefully constructed tree of canonical works of Western political philosophy to encompass both European and American political thought. Straussian students of political philosophy have done much to vitalize the thoughts and writings of the founding fathers of the United States and Abraham Lincoln.

The “esoteric” method pioneered by Leo Strauss borrows heavily from medieval Church philosophers such as Thomas Aquinas and Duns Scotus, and burrows deeply into the meaning of foundation philosophical texts, which because of the conviction that they contain timeless truths about human nature and human relationships, obviate any need for historical situation. Straussians privilege text over context and universal truth over the thread of history, largely because historical and narrative understandings can lead to moral relativism. Additionally, Leo Strauss’s efforts to elucidate the influence of Plato through the course of the Middle Ages led him to the conclusion that the most precious truths contained in the Western philosophical canon were secret and encoded, and could only reveal themselves to the initiated acolyte or the most subtle student.

Legal conservatives have to some degree reaped the rewards of the spade work done by this older generation of academic political philosophers. The precepts of Originalism and Textualism with regard to constitutional studies reinforce the Straussian focus on foundation texts, hidden or subtle meanings, an ahistorical valorization of frozen language possessing timeless universality, and a morally driven concern for the dissipation associated with values relativism.

The legal conservative method, of course, leads otherwise very bright people deep into the darkened logical caves associated with biblical fundamentalism, in which scriptural exegetes hyperscrutinize sacred texts to locate hidden meanings anchored to divinely authored truths. Legal conservatives will writhe around the unanswerable and possibly irrelevant question: What did this clause of the Constitution mean to the Founders? One might reasonably ask in return: Why not closely inspect entrails?

You Think There Ought  To Be A Right To An Abortion? No Problem.

Well, actually, there is a problem. Justice Scalia asks and answers this question rhetorically by way of his capsule summation of Originalism and Textualism. Scalia’s answer being: “The Constitution says nothing about it. Create it the way most rights are created in a democratic society. Pass a law. And that law, unlike a Constitutional right to abortion created by a court, can compromise. A Constitution is not meant to facilitate change. It is meant to impede change, to make it difficult to change.“

The problem is this. Legal conservatives attach a meta-meaning to the Constitution (it is designed to impede change), along with particular interpretations of its clauses, that elevate the importance of old-fashioned politics for securing non-universal rights (versus judicial remedies). However, the meta-meaning conflicts with an unfortunate reality. The political organs established by the Constitution have ceased to function. Moreover, we have ample evidence that this stalemate is exactly the political result favored by legal conservatives.

We have seen this before. In 1860. In 1936. Actually, we even witnessed this happen in 1786. The stalemate is called a Constitutional crisis. Under these circumstances, the principles that support the rule of law in the United States — equality, fairness, justice, transparency — principles enshrined within the preamble to the Constitution itself, begin to crack and crumble. Legal conservatives therefore face a dilemma. Is the Constitution a means? Or is it an end? They will tell us the Constitution is an end — a Procrustean bed as it were. But legal conservatives employ the Constitution as a means. To reconstruct politics itself, a breathtakingly radical, and risky, dissimulation that wagers all in the service of a hidebound medieval vision.

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.

The media has spilled much ink parsing the meaning of Secretary of State Mike Pompeo’s recently announced  State Department “Commission on Unalienable Rights.” According to the Federal Register notice, “The Commission will provide the Secretary of State advice and recommendations concerning international human rights matters. The Commission will provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights.”

In a statement delivered to the press in early July, Pompeo elaborated on the Commission’s mandate, specifically focusing on the “sad commentary” that, more than 70 years following adoption of the 1948 Universal Declaration of Human Rights, “gross violations continue throughout the world, sometimes even in the name of human rights.” More generally, Pompeo emphasized that an enervating and entropic institutional sloppiness has tarnished and undermined the goals and mission of the 1948 Declaration. International institutions “designed and built to protect human rights” have succumbed to the weight of administrative capture and been whipsawed by political grandstanding of member nations. The proliferation of human rights categories and claims beyond the scope of the mandate of the 1948 Declaration has intensified human rights contradictions and conflicts, making it far more difficult to adjudicate and address which claims are more valid and should possess more standing.

However, the distilled essence of the animus and angst of those participating in the creation of the Unalienable Rights Commission has remained firmly in the ethereum of language, a Fake News critique about the malevolent uses, as Pompeo proclaimed, to which the “dominant discourse” of a time can be used to justify the evils of that time, requiring a vigilance “that human rights discourse not be corrupted or hijacked or used for dubious or malignant purposes.” Harvard Law Professor and Commission Chair Mary Ann Glendon echoed this emphasis on the unreliability of language, failure of cognition, and exploitation of emotion, “this moment when basic human rights are being misunderstood by many, manipulated by many, and ignored by the world’s worst human rights violators.”

All well and good. However, the title of the commission, with its own manipulation of language for instrumental ends, is the tipoff to the mercenary agenda of the Commission on Unalienable Rights. Tactical (and somewhat transparent) use of the inartful and archaic term – “unalienable” – to align contemporary Catholic holy wars (on behalf of natual law, natural rights, religious freedom, and sexual repression) with the celestial political and philosophical dreams of the nation’s founders is a con job that should impress no one.

Legitimate reasons exist for conversation and debate about the scope, direction, and methods of U.S. human rights policy. However, the State Department Commission on Unalienable Rights – hatched from the inventive and restless minds of conservative Catholics (specifically, Princeton University professor Robby George), with no consultation from existing State Department institutions already tasked with defending human rights around the world, and with a gauzy, diverse, goony, and already fracturing member list of uncertain provenance beyond their personal connection to Mike Pompeo and their personal commitment to an anti-reproductive-rights “natural law” lens on human rights – will not be the venue for this conversation.

In a forthcoming 3-part series of essays on natural law for which this post must serve as preface, my goals will be to: 1) introduce the core precepts of Catholic theological and philosophical ideas about “natural law” that frame the political agenda of Christian and other Abrahamic faith conservatives; 2) chronicle the emergence of a philosophically more constrained “new natural law,” with its more specifically focus on increasing religious freedom and  limiting sexual freedom, in response to the Second Vatican Council of the 1960s; and 3) return to the era of the nation’s founders to demonstrate that “natural law,” certainly as Catholic conservatives in the presend day understand the term, was not central to philosophical and political discourse of the era, and that the notion and enumeration of “unalienable rights” itself was arbitrary, contingent, and by no means “self-evident.”

But let’s start off with a few semantic propositions.

Unalienable Rights

What explains the mysterious appearance in the name of a 21st-century government commission of an 18th-century word that, while a tentpole term of the preamble to the Declaration of Independence, long ago fell out of favor? Google Books’ indispenable NGram Viewer tells us that the use of the word “unalienable” peaked around 1780 and has since the 20th century disappeared almost entirely from the English lexicon. At the same time, usage of the essentially equivalent term, “inalienable”, which Lincoln favored during his 1858 debates with Stephen Douglas, maxed out around 1860, and has since also slipped (although less precipitously) into disuse. At the peak of their combined usage in printed materials around 1780, then, the terms “unalienable” and “inalienable” together were used about 2 times more frequently than they are today.

That pretty much no one has incorporated “unalienable” into their vocabulary since 1840 humorously confirms the language lameness of Catholic and natural law conservatives of the First Things persuasion. From which we might learn much about the irrelevance of these conservatives to the contemporary cultural zeitgeist. But perhaps not enough about their concurrent penetration of and unquestioned influence within the halls of power.

Alien Populations

Interestingly, use of the related yet opposite (and far more apposite) term “alien,” with all of its profligate noun and adjectival meanings, soared nearly 4-fold between 1780 and 2010, at the same time the use of “unalienable” was plunging inexorably toward zero. This irony may hints at a resolution of this tension between the cultural irrelevance and political potency of conservative Catholicism. “Unalienable rights” ultimately may tell us most about that which is “alien,” and so lacking in rights.

Natural Law and Natural Right

The term “natural law” arcs through the history of English language usage along a different set of slopes. In the decade of the 1770s, when the Enlightenment ideas informing the Declaration of Independence crystallized, “natural law” was invoked in printed materials at a frequency 3 times less than post-Great Awakening peaks in the early 1750s. More significantly, widespread use of the term “natural law” rose steadily following the Civil War, possibly in response to emerging doctrines of legal positivism, growth of a Catholic education infrastructure to accommodate the influx of “alien” Catholic immigrants and, ultimately, post-World War II interest in principles of moral philosophy that might have fortified Europe against totalitarian ideologies.

The adjacent term, “natural right,” flourished in a direction similar to that of “natural law” through the first half of the 18th century, and then maintained its popularity for the next half-century, encompassing both the Revolution and the ratification of the Constitution, before plunging in use in the final decade of the 18th century, presumably as the self-consuming fires of the French Revolution burned away the ideals of the Enlightenment. While the reference to “unalienable rights” in the Declaration is certainly a manifestation of Enlightenment optimism about what we can know and what we can achieve, the history of “rights,” generally, as a framework for thinking about politics has since meandered.

Law of Nature and State of Nature

To the uninitiated, the difference between the terms “natural law,” “law of nature” and “state of nature” may seem, well, “semantic.” And one therefore might justify “natural law” philosophical foundations of American independence and nationhood by observing the soaring use of the terms “law of nature” and “state of nature” in the decades leading up to the Revolution. In fact, references to the “law of nature” and the “state of nature” had been a staple of European legal and social contract theory for the previous 150 years (via Grotius, Pufendorf, Coke, Hobbes, Locke and, especially, Hume and other participants in the Scottish Enlightenment).

These theories spoke to the contingent politics in the early modern historical era of relations between individuals and between nation-states. In this sense, the context for “law of nature” and “state of nature” philosophizing, specifically as it informed ideas that were used to justify the American Revolution, was “naturalistic” – focused on the objective and observable realities of existence (creation) itself. In many respects, then, 18th century perspectives on the “law of nature” and the “state of nature were  diametrically opposed to Thomist-Catholic conceptions of a moral order sustained by a transcendent, eternal, and divinely decreed “natural law.”

This semantic analysis leads us to the conclusion that the “self-evident” nexus between “unalienable rights” and “natural law” is at best a spurious dodge resting – given the stakes – on insanely meaningless (asserted rather than demonstrated) assumptions about the first 35 words of the Declaration of Independence. If no logical and historical connection exists between ideas about unalienable rights and the central precepts of Catholic natural law, the entire political program of culture war Catholicism collapses. To fully appreciate the dimensions and import of this linguistic illusion, we need to dig more deeply into the roots and structure of natural law theology and philosophy.

Collegiate gothic citadel of learning in a historic, picturesque town roughly equidistant from New York and Philadelphia, from Boston and Washington, DC, Princeton University is proximate to urban centers of wealth and power, while remaining demurely provincial and unassuming (the town is a mere 5-minute ride from the Northeast Rail Corridor via the terminally adorable Dinky, a single-car train that departs regularly from the Princeton campus).

Perhaps unsurprisingly, then, Princeton (both the town and the university, actually) has a bit of a Stepford Wives quality, its refined academic patina and bland cosmetic perfection dissembling the extent to which rampant egos and unbridled wealth and power imperatives inflect the dispensation of emoluments and influence.

Which brings us to Professor Robert P. George of Princeton University, Catholic moral philosopher, ethical evangelist, social reformer, and influential whisperer to conservative U.S. intellectuals and politicians.

Introducing Robby George

Robby George holds the McCormick Chair in Jurisprudence at Princeton (an honorific also bestowed upon Woodrow Wilson back in the day). Somewhat owlish in appearance (with a square face, large head, and glasses), unfailingly formal (his uniform the three-piece suit), and possessing an intimidating academic pedigree (Swarthmore BA, Harvard JD, Oxford PhD) alongside aw-shucks, finger-picking-good, banjo-playing, West Virginia origins, George is disarmingly likeable. He professes to be (and by almost all accounts is) one of those rare souls who has been ravished by ideas.

Robby George’s commitment to the life of the mind and to the pursuit of truth, his passion for intellectual swordplay, has also famously coexisted with an abiding capacity for friendship with others (most famously, Cornel West) who may not agree with him on existential values or public policies, but who share with him a zeal for ideas (and for ideals), and for whom deep thought provides the ground of their being..

All the more reason to be clear that Robby George is a complicated fellow. Honoring that complexity means we need to hold in place what we might call his intellectual and emotional virtues. At the same time, we must be real about the extent to which George’s persona itself (no limpid pool of grace for R.G., as for the rest of us) might tactically serve as an agency of misdirection.

Indeed, Robby George’s facsimile of a decent, caring person diverts our view from his deep and complicit engagement with some pretty terrifying people, organizations, practices, ideas in the policy realms of family, marriage, gender, sexuality, women’s reproductive health, medical ethics, school choice, religious freedom, and foreign policy. Terrifying less because of the dogmatic and reactionary specifics of the policy commitments. More because of the bizarrely twisted and arbitrary ethical, theological, and philosophical premises and infrastructure of these commitments.

In other words, the revealed religion foundations of Robby George’s natural law worldview should terrify us because they misdirect our focus and resources away from escalating existential threats to our species, and to life on this planet. One must appreciate the enormous irony insinuated by this claim, of course, given the spiritually self-righteous and self-justifying In-God-We-Trust affirmations of this worldview.

But that tragicomic irony is the heart of the matter. Because the Abrahamic, creator-centric assumptions of this worldview beckon Robby George (and far too many of the rest of us) into a simple-minded, morally constrained, empirically empty, and logically befuddled deontological scheme that strips from humanity, generally, the actual grace inherent in its complexity as a species, crouched and confused, at the summit of an unfathomably remarkable creation that needs no justification beyond itself.

Christianity at Princeton

We’ll get to Robby George’s ideas about natural law, and subsequently dig even more deeply into the influence of revealed religion on concepts of natural law, and the implications of this influence for the future of our planet. For now, we simply need to consider that Robby George’s significance for the conservative insurgency in American politics has as much (or more) to do with the institutional empire he has built at Princeton than with the ideas he uses this institutional empire to disseminate.

A few relevant points about Christian worship and Christian ideas in Princeton. With one modest, main street Catholic church, several historically prominent and well-heeled Presbyterian and Methodist congregations, and, on campus, one gorgeous medieval-inspired, interfaith Gothic “chapel”, Princeton blandly accommodates a full complement of Christian dispositions and faiths, without hewing to any with any particular intensity.

Like most aspects of life in Princeton, churching is comfortable and expedient, and so an unlikely location for rigorously ordered and applied religious thought. Which perhaps explains why an Onward Christian Soldiers gestalt emerged, not from Princeton’s religious institutions (not, even, from the town’s renowned, and quite theologically conservative, Presbyterian seminary), but from the university’s Politics department.

Catholic natural law philosophy flourishes at Princeton via two institutions Robby George has birthed, nurtured, and funded from his perch within the Politics Department: The Witherspoon Institute and the James Madison Program in American Ideals and Institutions. Both of these organizations are the products of what we might call the right-wing, Catholic-infused “intellectual-industrial complex” spawned by nonprofit foundations that secure the tax-advantaged funds of incredibly (unspeakably) wealthy heartland businessmen and deploy them through a network of (mostly) east coast think tanks and advocacy institutions.

Multiple ironies accompany the attachment of these two benign-seeming namesakes – Witherspoon and Madison – to the straight-laced missions of these two programs.

John Witherspoon (son of the Scottish Enlightenment, renowned educator and moral philosopher, Princeton University president during the Revolutionary War era, leading light of the Continental Congress, signer of the Declaration of Independence, and tutor to James Madison) married a 24-year old woman at the age of 68 and subsequently sired two children with her (to accompany the 10 children he fathered with his first wife).

The other being that little Jemmy Madison himself, all 5’4” and 100 pounds of him, was a Deist whose contributions to the debates surrounding the Constitution illuminated for posterity an especially nuanced and flexible political mind, attuned to Enlightenment perspectives of natural rights emerging alongside civil society from the state of nature, but not particularly focused on or concerned with Christian-Classical concepts of moral philosophy and natural law.

The Witherspoon Institute

The Witherspoon Institute is “an independent research center that works to enhance public understanding of the moral foundations of free and democratic societies.” The Institute runs two education centers, each of which frankly and forthrightly declare what many people (particularly those not sufficiently initiated into the philosophical labyrinth of Catholic doctrine) might presume were obfuscatory prolegomena to a medieval counter-reformation not dissimilar to the Inquisition or, closer to home (closer to Harvard, certainly), The Handmaid’s Tale:

• The Simon Center on Religion and the Constitution – “dedicated to examining church-state legal doctrines in American constitutional thought and restoring and defending the understanding of religious liberty and the place of religion in American public life that our Nation’s founders set forth in the text of the Constitution.”
• The Center on the University and the Intellectual Life – which operates on the premise that the diseased foundations of higher education endanger a free society and thus require “faculty and programs within universities supported and supplemented by programs working independently but along-side the university—the university now requires outside help to live up to its highest ideals, not in competition but in a supporting and complementing role.”

Witherspoon also supports a myriad of (quite controversial) research and publishing projects (focused on Science and Ethics; Family, Marriage, and Democracy; Political Thought and Constitutional Government; Ethics, Culture, and Economic Development; and Religion and Civil Society), allowing the Institute to achieve the remarkable feat of combining within its modest (although not too modest) dispensation the research, publishing, and education initiatives separately pursued by the Heritage Foundation and Federalist Society.

The Witherspoon Institute exists independently of Princeton University, but still benefits from courses it offers that cater to Princeton undergraduate and graduate students (as well as to high school students during the summer months, including a seminar with the theme of Moral Life and the Classical Tradition scheduled for the summer of 2019, with separate units, in separate weeks, for men and women). Other summer seminars sponsored by the Institute include Medical Ethics: A Natural Law Perspective (for medical students); Natural Law and Public Affairs (for undergraduate and graduate students); First Principles Seminar (for undergraduate and graduate students); and The Thomistic Seminar: Practical Rationality (for graduate students in philosophy and related fields).

A 501c3 organization, the Institute’s 2017 Form 990 annual report to the IRS discloses support totaling more than $14 million between 2013 and 2017, along with net assets exceeding $9 million, and ownership of land, buildings, and equipment valued at well north of $2 million. A significant amount of this support comes from the Simon Foundation and the Bradley Foundation, where Robby George is a board member. The Board of Trustees for the Witherspoon Institute itself largely consists of very wealthy private investors, many of whom are closely connected to the Catholic Church.

The James Madison Program

By contrast the Politics Department at Princeton directly hosts the James Madison Program in American Ideals and Institutions, even while most of the funding for this program (from Olin, Bradley, Scaife, and other foundations) has been private (with a long list of very wealthy business and finance executives, including Steve Forbes and Paul Singer, and conservative academics from other institutions, including John DiLilio, serving on the Board of Advisors), which means Robby George, in his capacity as Director of the program, can exercise full autonomy over its direction and content.

The James Madison Society, a related international community of like-minded scholars with an interest in political thought, constitutional law, and the moral foundations of democratic governance, is strikingly Catholic and conservative, specifically on matters of religious freedom, bioethics, the family, marriage, and sexuality, with a governing board that includes Hadley Arkes, John Finnis, Leon Kass, Harvey Mansfield, and David Novak, and a member list that includes a large number of scholars from Catholic universities such as Notre Dame, Catholic University, and Villanova, and from Straussian strongholds such as the University of Chicago, Claremont McKenna College, and St. Johns College.

Robby George himself, along with most of the other prominent scholars and public figures associated with the Witherspoon Institute and the James Madison Program, bemoan “woke” shrillness and the collapse of civil discourse on college campuses. However, the generously funded and securely embedded cohort of conservative Catholics cosetted and praised from within the Politics Department at Princeton suggests just the opposite. Princeton, like most universities, will bend over backwards to accommodate “non-progressive” voices, especially if they arrive with deep pockets.

The central point being, perhaps, at this point in the conversation, that far from subsisting as a beleaguered fringe in the Siberian wastelands of the academy, opposed on all sides by hostile forces, Catholic natural law and moral philosophy is organized, engaged, well-funded, and firmly in control of the public conversation on the critical and fraught policy debates of our moment in time. For both his intellectual and organizational leadership, Robby George deserves most of the credit for this achievement.

In the next article of this series, we’ll consider some of the practical and political implications, ironies, and consequences of this triumph.

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Other essays in this series include:

1. The Creation Project: Revealed Religion, Natural Law, Western Civilization, and the Ends of the Earth, July 10, 2019

2. Culture War Catholicism and American Conservative Politics, July 12, 2019

3. Serving God and Mammon: The Rise and Influence of the Heritage Foundation and the Federalist Society, July 14, 2019

4. Unalienable Rights, Alien Populations and Natural Law: Unspoken Assumptions and Hidden Agendas of Mike Pompeo’s Commission on Unalienable Rights, August 2, 2019

In October 2015, Bloomberg further burnished Robby George’s reputation as the wise man of the Republican Party with an article headlined “Half the Republican Field Seeks Advice From This Princeton Professor.” During the earliest stages of the 2016 presidential campaign, Ted Cruz, Jeb Bush, Ben Carson, Marco Rubio, and Rick Santorum sought Robby George’s advice on how to think about and talk about wedge social issues such as religious liberty, same-sex marriage, and abortion rights (and wrongs), and other “key constitutional values.” Mike Huckabee, who did not meet directly with George, has also said that George is the thinker whose ideas have most influenced him.

At this time, George indicated he would not publicly anoint any of the Republican candidates. In March 2016, however, Ted Cruz announced the endorsement of “Dr. Robert P. George,” his friend, professor, and adviser since his undergraduate days at Princeton, and “an intellectual powerhouse who never cowers to liberal academia.”

It doesn’t really matter whether Robby George dissembled. What we clearly know is that by March 2016 conservative Christians were in a full-out panic about Donald Trump’s Godzilla-like decimation of the rest of the Republican field. Ted Cruz became the candidate around whom they determined to make their last stand. Hence the birth of the “Never Trump” movement.

A “Never Trump” Appeal to Fellow Catholics

In the week prior to Robby George’s Cruz endorsement, The National Review published “An Appeal to Our Fellow Catholics,” a brief but remarkable document, drafted by George and signed by more than 30 conservative Catholic intellectuals, that savaged Donald Trump as a simian – vulgar, retrograde, decivilizing, and “manifestly unfit to be president of the United States.”

There is much we can parse from this compact cri de coeur. Let’s start with the obvious point. No matter how offensive and deranged they might have found Donald Trump to be, these religious conservatives made clear they understood why Americans would prefer Tump to the elitist commissars of the Democratic Party, whose legacy included: “wage stagnation, grossly incompetent governance, profligate government spending, the breakdown of immigration law, inept foreign policy, stifling political correctness – for starters.”

We need to continually bear in mind this caveat to the critique of Trump, because the animus of these Catholic conservatives to the Democratic Party is eternal and absolute and literally knows no bounds, while their opposition to Trump has proven to be entirely contingent, conditional, and transactional. Hence – as we’ve recently seen with Robert George’s hand-in-glove partnership with Mike Pompeo to launch the State’s Department’s new Commission on Unalienable Rights – the oleaginous ease with which most Never Trumpers almost instantaneously fell in line once it was clear any influence in the new administration required kissing The Donald’s ring.

The Wiggle Room

To more clearly assess the wiggle room the Appeal leaves for working with Donald Trump, we also should highlight the fantastic compendium of grievances and goals (sometimes it is difficult to distinguish between them) at the beginning of this document.

In recent decades, the Republican party has been a vehicle — imperfect, like all human institutions, but serviceable — for promoting causes at the center of Catholic social concern in the United States: (1) providing legal protection for unborn children, the physically disabled and cognitively handicapped, the frail elderly, and other victims of what Saint John Paul II branded “the culture of death”; (2) defending religious freedom in the face of unprecedented assaults by officials at every level of government who have made themselves the enemies of conscience; (3) rebuilding our marriage culture, based on a sound understanding of marriage as the conjugal union of husband and wife; and (4) re-establishing constitutional and limited government, according to the core Catholic social-ethical principle of subsidiarity.

This statement elucidates the lineaments of Catholic conservatism. These enumerated values and precepts are the essential program – the irreducible policy output – of Catholic natural law philosophy. What we need to emphasize, then, is that when conservatives (and, in fairness, others who do not think of themselves as conservative), discuss the idea of Western Civilization, what it represents and what is valuable about it, they are largely talking about these values and precepts as the condition for human civilization as we know it – as the basis, in other words, for what makes us fully human, what connects us to God, what separates us from the beasts, and what resolves and restores to harmony the heart arrhythmia of our fall from grace.

We’ll have lots of time to dissect these precepts at the heart of Catholic and conservative social and political philosophy. For now, it is probably sufficient to make just a few points that elide the consequential undertow of this philosophy.

Whose Culture? Whose Death?

First, the list of those subject to the “culture of death” reduces itself to human individuals – the unborn, the disabled and handicapped, and the “frail” elderly – who are physically or cognitively limited, vulnerable, damaged, and marginal. In other words, those among us who require protection are developmentally incomplete, limited, or partial.

I’m sure teleologically (and theologically) there is much one can do with this concept of protection for those humans who are spiritually complete but physically insufficient. But the concept is even more striking for what it categorically leaves out – limitations, disabilities, damage, and marginality that are the result of social, historical, or environmental circumstances – the circumstances and matters that engage us collectively.

This distinction is no accident. Robby George himself will argue, and has argued, that most life outcomes for humans, those conditioned by “mundane” issues such as healthcare, poverty, race or gender, are vagaries, matters perhaps subject to policy debates and political contests where “reasonable and well-informed people of good will” can uncomfortably but with civility disagree. These matters, embedded within history, are not of interest to George because they are not subject to the higher-order, fixed and eternal moral imperatives, associated with natural law moral philosophy, pertaining to “human life” and “human dignity” questions, with non-negotiable answers that are decreed by Israel’s god and enforced by Aaron’s rod.

Primitive Feeling States

Second, the apocalyptic tone of this appeal – with references, flying like flapjacks, to a culture of death, unprecedented assaults, every level of government, and enemies of conscience – is characteristic of the Christian conservative mindset – that almost requires grievance as a goal in itself.

In other words, despite his own alleged commitment to reason as the essence of the imago Dei in humans, in this Appeal to Catholic voters, Robby George deploys language that is so linguistically extreme and emotionally charged and bereft of evidence (because presumably self-evident) that it resembles the communication style on the huskings of Donald Trump himself, whose dark assertions have had nothing to do with logic and persuasion, and everything to do with the activation and confirmation of primitive feeling states. How these primitive feeling states connect to and resemble primitive religious experiences requires further exploration.

Subsidiarity and Integralism

Third, please note the coy reference to “the Catholic social-ethical principle of subsidiarity,” which we learn, almost as an afterthought, is the basis for reestablishing constitutional and limited government in the United States. Some might blanch at this notion of a Catholic-derived constitutional jurisprudence (which escalates the scope of “religious liberty” by several orders of magnitude). However, Robby George’s use of this term merely echoes recent tenets of natural law scholarship from legal conservative stalwarts such as Federalist Society founder, Steven Calabresi, who have deployed some not insubstantial sleight of hand to reimagine the economic concept of subsidiarity in legal and political terms.

Cooptation by Catholic conservatives of the Dorothy Day / Social Justice commitment to subsidiarity is not unrelated to full-throated embrace by many of these same conservatives (in the magazine First Things, and elsewhere) of the far more medieval and sinister concept of integralism, a Catholic revanchism suddenly in fashion that posits a traditionalist, “thick culture” religious extremism that would entirely destroy the “thin” civic space that Robby George reserves for the “less important” policy debates and political contests.

I am thinking here, specifically, of esteemed Harvard Law School professor Adrian Vermuele, who has since his 2016 either/or Catholic conversion moment (hailed by a “Welcome home!”shout-out from “Brother” Robby George) has unhinged himself on behalf of integralism. I am also thinking of another recent convert, Iranian-American journalist and enfant terrible Sohrab Amari, whose scorched-earth auto da fe of fellow Christian conservative David French, enthralled the intellectual architects of our contemporary Counter-Reformation, clearing space for unapologetic embrace of a tear-down-the-house integralism not unlike the permission Donald Trump gave to his base to abandon democracy and embrace autocracy.

The Stage is Set

Contemporary politics endlessly fascinate, and it is deeply tempting to continue to wander into every dark alley that presents itself in our metropolis of fear and loathing. But this series of essays has probably laid sufficient groundwork to allow for the step backwards, across time and space, that allows us to examine directly and remorselessly the Catholic philosophy of natural law that today supports, not merely the politics and jurisprudence of Robby George and other conservatives in the United States, but the very idea of Western Civilization. The defense of this idea – as the highest and most profound expression of a Christian God’s plan for the human species created in his image – buttresses and justifies and provides political cover for nearly every significant moment and movement of European and American history in the past millennium.

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Other essays in this series include:

1. The Creation Project: Revealed Religion, Natural Law, Western Civilization, and the Ends of the EarthJuly 10, 2019

2. Culture War Catholicism and American Conservative Politics, July 12, 2019

3. Serving God and Mammon: The Rise and Influence of the Heritage Foundation and the Federalist Society, July 14, 2019

4. Unalienable Rights, Alien Populations and Natural Law: Unspoken Assumptions and Hidden Agendas of Mike Pompeo’s Commission on Unalienable Rights, August 2, 2019

5. God and Religion at Princeton, August 6, 2019

6. Robby George’s Primer on Natural Law, August 12, 2019

In 2007, Professor Robert George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, delivered the John Dewey Lecture in Philosophy at Harvard Law School. George himself received his legal education at Harvard, and was there introduced to ideas about the relationship between law and morality, the study of which, as he happily tells us, became his life’s vocation.

George’s 2007 lecture, entitled “Natural Law” (and subsequently published in the Harvard Journal of Law and Public Policy), for our purposes serves beautifully as a primer on the intellectual foundations of philosophies of natural law. The lecture is broad and basic enough to initiate the unwashed, yet sufficiently subtle and nuanced to entice those already fluent with natural law and other Western moral philosophical traditions (specifically, utilitarianism and deontology).

I hope to further distill from this natural law primer the ideas on which the logical coherence of natural law philosophy depends. From that foundation, I’ll launch an exploration of the political and moral challenges presented to us in the 21st century by natural law philosophy’s subordination, itself, to the precepts of revealed religion.

George’s language in this lecture/essay is probably more turgid and formal than it needs to be, even for an august institution such as Harvard, but as we shall see, this pontifical style conforms to the vaulted sense of purpose that generally characterizes Catholic moral philosophy (for other examples, read pretty much anything from First Things, the Catholic-inspired journal of religion and public affairs). One of the challenges in addressing this elaborate, high-sounding (almost Counter-Reformation Baroque) language is to avoid its seductions and attend to how easily its curlicues can blandish us into a kind of nodding, soporific submission that muffles some of the philosophy’s underlying nastiness. Anyway, let’s get into it.

Key Terms

The precepts of natural law moral philosophy both absorb (from revelation and scripture) and communicate (into public discourse and legal practice) a quite specific understanding of the human individual as the summit of God’s creation, shaped in the image of God himself. The vocabulary of natural law philosophy organizes itself around this concept of the imago Dei. Here are some key terms, all of which we’ll consider throughout this series of essays: Revelation, Character, Creation, Creator, Freedom, Human Dignity, Human Flourishing, Imago Dei, Individuality, Nature, Reason, Self-Evidence, Virtue.

Human Flourishing

George associates rights and justice with a moral account of human flourishing that encompasses intrinsically human goods. George’s stipulations organize this moral accounting around a human telelogy. That humans, as a species and individually, should flourish, is a noble end in itself that requires no justification outside of itself. In other words, it is in our nature to know and to seek the goods that allow us to flourish.

Against this concept of flourishing, George says, both individualism and collectivism risk becoming dangerous subjunctives that reduce human individuals and human associations to merely instrumental currencies of value or exchange. In this balance between our inner life and individual fulfillment and our external relationships and social happiness, George locates an Aristotelian golden mean toward which we must constantly strive, with Natural Law the carpenter level that trues our behavior in relation to this moral constant.

Practical Reason

George also emphasizes, repeatedly, that reason is the means by which humans can identify and pursue the goods that support the flourishing of the species (with the exercise of one’s rational faculties itself one of the highest types of flourishing). George specifically emphasizes the singular gift to humans of “practical reason”, the quality of mind that allows us to discern the goods humans all seek, as well as the virtues attached to this seeking, and the flexibility to accommodate and adapt to the diverse circumstances of our existence in order to pursue these goods.

What would be examples of these intelligible, intrinsic goods toward which we are guided by the laws of reason and nature? Christopher Tollefson is philosophy professor at the University of South Carolina, a buddy of Robby George’s, and a fellow member of the new State Department Commission on Unalienable Rights founded by Robby George. Tollefson tells us these intelligible, intrinsic human goods include: “life and health; knowledge and aesthetic experience; skilled work and play; friendship; marriage; harmony with God, and harmony among a person’s judgments, choices, feelings, and behavior.”

Fair enough, one might say. But natural law philosophy here pivots momentously, by conflating nature and reason.

Nature and Reason

The background to this conflation of nature and reason – that which is natural and that which we can know – is the crazy-complicated intramural philosophical conversation about the naturalistic fallacy, which tackles questions about whether it is possible to establish an ethics or a deontology as natural, intrinsic, given, or self-evident. For our purposes, we need only emphasize that within the tradition of natural law philosophy (following Aquinas), nature refers to the fixed, unalterable essence of every living creature, generally associated with its capacities, those unique attributes or potentialities that allow it to know itself, to survive and to thrive.

Specific notions of human nature within natural law moral philosophy refers to the divinely bestowed rational capacities – unique to humans – that we use to locate and pursue those “intelligible, intrinsic” goods that are appropriate to our nature. In other words, the proper exercise of practical reason will unfailingly steer us toward that which we are by nature, and toward that which God intends and wants us to be. Hence the depths of the consternation among Catholic proponents of natural law moral philosophy concerning those humans who deviate from these norms (who are deviant), who behave in a manner, promiscuous or otherwise, that violates the natural order created by God, and who are thus monstrous in the eyes of God.

So the term natural law itself might actually, and more accurately, mean “the law of reason,” that sense of the intrinsic order and essence of things we can observe empirically and understand logically with reference to fixed attributes, essences, and teleologies. The Arisotelian foundations of this taxonomic/taxidermic perspective on nature’s creation are clear enough. However, philosophers of natural law are equally beholden to the tenets of Abrahamic revealed religion, which views nature – complex and rich though it may be – as a fixed order imposed upon the universe, from outside time and space, by a Creator God.

Imago Dei

Why does this conflation of nature and reason matter? Because for philosophers of natural law, reason is a highest-order capacity specific and unique to humans, one not possessed by other creatures, a capacity that we alone share with the God that created us. Hence the idea that humans are separate and special from the rest of creation because they are created in the image of God, that each human soul possesses within itself the imago Dei, the spark of God.

Robby George adds to our rational faculties an additional, distinctly human, attribute: the capacity for “freedom,” by which he means free will, freely choosing. Together, reason and freedom  grant to us capacities for deliberation, judgment, and choice. Both ontologically and epistemologically, we can imagine the operation of these capacities as pure mind apprehending itself and the world. And for George, this unique human potential to step outside of ourselves is what allows us to escape from the dependent status of other creatures enmeshed in the web of causation and to become ourselves, like God, uncaused causers.

According to Robby George, “These capacities are God-like [and] constitute a certain sharing – limited, to be sure, but real – in divine power. This is what is meant, I believe, by the otherwise extraordinarily puzzling Biblical teaching that man is made in the very image and likeness of God.”

Human Dignity

Consistent with Catholic theology, natural law moral philosophy cleaves mind from body, spirit from flesh – attaching mind/spirit to the Creator God and body/flesh to God’s Creation. The idea that God has distinguished humans from all other creatures by implanting within us the imago Dei, the divine spark, uniquely conjoins within us the spirit of the Creator and the flesh of the Created (an obviously salient point for interpreting the symbolism of the Christ story). The ultimate value emerging from this reconciliation within humans of the spirit-flesh dichotomy is the Catholic trope of human dignity, which was most clearly enunicated at the conclusion of the Second Vatican Council in 1965.

From legal and political perspectives, just laws and virtuous behaviors generally acknowledge and support the objective reality and intrinsic dignity and value of each human person. This more general sense of the term is mostly how Robby George discusses human dignity in the Natural Law essay. George emphasizes that human dignity derives from the human capacity for rationally motivated action (based on deliberation, judgment, and choice) free from the influence of external forces or internal emotions.

Of course, this is not a controversial view. Indeed, the concept of human dignity floods secular perspectives on social order and social justice. Most significantly, of course, in the 1948 United Nations Universal Declaration of Human Rights. But also more recently. For example, following the Ford-Kavanaugh Senate hearings of September 2018, New Yorker staff writer Masha Gessen observed, “When people are cast out of the political community—when they become stateless or lose their right to vote, or are simply marginalized to the point of becoming inaudible—they suffer the loss of dignity.” House Speaker Nancy Pelosi recently reported that on a visit to the U.S.-Mexican border, she and her congressional colleagues “prayed for those whose dignity is affected by the treatment at the U.S. border.”

Religious Liberty

However, the Catholic concept of human dignity specifically refers to “religious liberty” as free exercise of one’s conscience with regard to spiritual matters. In principle, this commitment to religious liberty as the predicate for human dignity extends across all religous persuasions and belief systems (presumably even those religious belief systems positioned ironically in opposition to Judeo-Christian traditions, beliefs, and practices, such as pantheism, satanism, or pastafarianism).

With free choice, we not only constitute/create a “reality” in the external world, we constitute/create ourselves as possessing a distinct, unique “character” we own and for which are responsible with reference to our words and deeds. As Robby George states, “morally significant choosing leads to a focus on virtues as habits born of upright choosing.” The culminating evidence of human dignity and human flourishing, then, is the upright behavior of rational individuals, according to a catalog of virtues, freely understood and freely chosen. Everything else is a falling away, a deviation, a deviancy.

In reality, of course, it is this risk of falling away, of deviations from God’s natural order, that concerns Robby George and other Catholic philosophers of natural law. In this sense, human dignity – defined as conformity to God’s natural order – superimposes and prioritizes traditional Roman Catholic beliefs about human sexuality, marriage, abortion, birth control, and biotechnology.  Contrary to what one might assume about the emphasis on religious liberty, control of the movements and behaviors of bodies to prevent violations of God’s transcendent natural law is at the hypersexualized heart of the New Natural Law postulated by Catholic philosophers such as Germain Grisez and John Finnis (Robby George’s dissertation advisor and mentor) in the aftermath of the Second Vatican Council.

Creator/Author

Robby George’s primer on natural law absorbs and reinforces conventional Western ideas about individuality and causal agency that may owe more to the Enlightenment project (and less to Aquinas and the teachings of the Catholic Church) than he would like to admit. By anchoring these ideas to the Biblical concept of Imago Dei, however, George apotheosizes the individual human as a freely choosing, creative, God-like power. An uncaused Causer.

The Promethean echoes here are notable, but for our purposes, the most important implication concerns how natural law sets humans, who alone share reason with God, in opposition to the natural world, which (George and other conservative Catholics would say) does not reason or possess consciousness as we ordinarily think about these ideas.

George takes pains to emphasize that the logic of natural law philosophy does not require a belief in a Creator God. However, his own belief in such a God suffuses the Natural Law essay and, truly, imparts to this essay its most intellectually radical and significant moment, when George identifies the creative potential of practical reason and free will as a God-like, “awesome” power.

Indeed, everything George communicates in this essay flows from this belief, fundamental to Abrahamic revealed religions, that an omnipotent God stepped into time and space to make humans the pinnacle and purpose of the entire creation. George’s subjective, personal faith (by definition, ungrounded in any sort of objective or scientific evidence) in the Judeo-Christian-Islamic God as the prime mover of the universe, and the moral plane on which the universe rests, depends on a simple causation model, inscribed in Genesis, that literally authorizes the anthropogenic dominion – the hubris about our singular, special place in the universe – that has spun the planet off its bearings.

As God creates and makes for his own pleasure and purposes, so shall we. So much for the carpenter’s level and the moral plane.

Creation/Nature

Three important points are worth making regarding the existence of an immanent and knowable Creation implicated in both geologic time and human history (what we might otherwise call Nature), as distinct from a transcendent and cryptic Creator/Author that exists beyond the horizon and that reveals himself to us as series of scripts, as a God of Law. Indeed, this perspective on natural law moral philosophy liberates us from requiring any focus at all on the inscrutable Creator God who spoke to Abraham. If one thinks about natural law as the laws of nature inscribed within the Creation, generally, without reference to the rational, free will of a Creator, one can deduce quite a bit of existential truth from these inscriptions.

• Laws of Nature. The idea of capacities as the source of a creature’s nature (as in, it is the nature of a human to reason or a wildebeest to run in a herd) helps us to think about how we can imagine the created world itself, taking it in its own terms (without any reference to a Creator God), as the tablature for the inscription of the laws of nature.

• Civil Society and Positive Law. Natural law, loosened from a necessary dependence on revealed religion in the past 500 years, may have provided the Christian West with an emergent flexibility that opened a space for civil society and positive law that still (despite the influence on Western thought of Averroes), remains largely unavailable to Islamic cultures.

• Revelation and Common Goods.When framed in the context of a revelation-dependent philosophy of natural law, which in Genesis radically separates the Creator from the Creation, we can see how the natural world provides the stage on which God-like humans act to fulfill the mandate to subdue the earth. It is far less clear, indeed doubtful, how the concept of a common good, as Robby George describes it, might include the goods of the non-human creatures of natural world itself, all that which possesses no imago Dei and hence is by definition subordinate and instrumental to the human creature.

Self-Evidence and Causation

Robby George does not use the term self-evident in his Natural Law lecture. But the idea of self-evidence is central to natural law philosophy as conceived by Aquinas, and remains historically important as a way to think about fundamental truths captured by natural law– the “unalienable rights,” for example, of the preamble to the American Declaration of Independence that natural law moral philosophers hold so dear. Robby George frequently quotes this preamble, and the idea of self-evidence is never far from the surface of most of his writings on natural law.  But the constitution of self-evident principles requires Robby George and other natural law philosophers to remain Creator-dependent and Scripture-dependent, which entirely handicaps their enterprise.

First, Catholic natural law philosophy requires a moral ground of being, the Uncaused Cause existing outside of time and space, to which self-evident truths can appeal. To be witnessed and known, these self-evident truths also require some revelatory experience – involving a scriptor, scripture, script, and scribe – to unveil the Creator God who manifests the Uncaused Cause, who stands apart from, authors, authorizes, and holds absolute authority over the Creation.

Unfortunately, the revelatory foundations of monotheistic Abrahamic faiths are preposterously and hilariously inadequate to provide this existential foundation. Not least because in a world governed by complexity (morally and biologically and otherwise), the idea of causation itself almost instantly break down. While it’s obviously become a reflex to say “correlation is not causation,” in reality, correlation is usually pretty much all we have. What complexity reveals is that our universe operates across an unfathomably enormous bandwidth of randmness. A vast amount of the life outcomes and human behaviors Robby George attributes to practical reason, free will, and human agency is stochastic.

Finally, the concept most crucial to Catholic law moral philosophy – the idea of the imago Dei – utterly fails to characterize the thickly and historically contextualized realities of “human nature.” Robby George and other natural law philosophers argue that practical reason captures self-evident principles of human existence that serve as  “guardrails,” the fencing that folds us voluntarily and consciously into God’s order. The imago Dei makes us human, distinguishing us from beasts and other forms of created life. Robby George fears that when we strip away this layer and live only in history, when we seek to be implicitly self-governing, we will subordinate reason to dark desires and instincts that know no limit.

The reality, of course – one that science further confirms on a daily basis – is that other forms of created life are impressively (even movingly) complex, with perceptual, communication, and adaptive capacities that in many instances dwarf our own, and against which the prideful claims of human agency and human morality badly fade. Moreover, complexity science continually adduces evidence that all life on earth exists within marvelously intricate webs of interdependence, governed by spinning whorls of logic and imperative that exceed by orders of magnitude the marvels of Biblical revelation, and that require no justification or understanding outside of ourselves. Against these claims, natural law moral philosophy has no answers.

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Further Reading on Natural Law

Websites

• Natural Law, Natural Rights, and American Constitutionalism
• Heritage Foundation

Publications

• First Things
• Public Discourse

Articles

• Natural Law (Robert P. George, Harvard Journal of Law and Public Policy, 2007)
• Natural Law Theories (John Finnis, The Stanford Encyclopedia of Philosophy, 2015)
• The Natural Law Tradition in Ethics (Mark Murphy, The Stanford Encyclopedia of Philosophy, 2019)

Books

• After Virtue (Alasdair Macintyre, University of Notre Dame Press, 2007)

The Creation Project (Patheos)

• The Creation Project: Revealed Religion, Natural Law, Western Civilization, and the Ends of the Earth, July 10, 2019
• Culture War Catholicism and American Conservative Politics, July 12, 2019
• Serving God and Mammon: The Rise and Influence of the Heritage Foundation and the Federalist Society, July 14, 2019
• Unalienable Rights, Alien Populations and Natural Law: Unspoken Assumptions and Hidden Agendas of Mike Pompeo’s Commission on Unalienable Rights, August 2, 2019
• God and Religion at Princeton, August 6, 2019
• Aaron’s Rod: The Righteous Religious Rage of Robby George, August 8, 2019

The selections below illustrate the broad scope and application of natural law philosophy to Christian conservative perspectives on the issues that most divide the United States (and European nations) in this historical moment: a) how we think about and interpret history; b) the legacy and meaning of slavery and racism for national identity; c) migration, borders, empathy, and identity; d) Christianity, capitalism, and socialism; e) free will, self-ownership, and suicide; g) Western civilization as the mirror of God; h) tradition and nostalgia; and i) origins and manifestations of evil.

Human Reason and Its Discontents

The thread uniting these articles is the idea that humans all share an innate capacity to reason that allows each individual, when properly aligned to this rational capacity, to identify that which is true and good in our natures and in our goals, and to pursue those goods in the light of those truths, through virtuous acts that lift us closer to God – the “unchanging principles of conservatism” that Heritage Foundation president Kay Coles James enumerates (The Unchanging Principles of Conservatism Defined).

One of the strengths of natural law philosophy, generally, is its combinatorial power, the flexibility of its key tenets to span and in some measure unite otherwise disparate and contradictory ideologies. For example, libertarians of the Austrian economics persuasion base much of their epistemology on natural law foundations (as articulated by Murray Rothbard), which allows some of their adherents to align themselves with orthodox and traditional Christian precepts (An Answer to the Pope; Reason, Faith, and the Struggle for Western Civilization).

In the lovely post on migration in The New Inquiry, we see an application of the idea of natural law as the essence of the law of sea, in which maximal vulnerability to nature heightens human capacities for empathy and self-sacrifice (Liquid Border). Several authors, with varying degrees of success, enfold Christian natural law into the fabric of the American founding (America Wasn’t Built on Slavery). Other authors invoke natural law from a crouched, snarling, defensive posture that flattens and hardens the term into a cudgel, with an emphasis, on rooting out deviance and evil  (Ghost of John C. Calhoun; A World Without Globalists). Finally, most of these articles ultimately lean into scriptural and creedal foundations that subordinate the chaotic “rationality” of nature itself to the more inscrutable “reasons” of a Creator God.

One implication of this “lean” is the romance and nostalgia attached to rural locations and traditions, and the implication that natural law philosophy and virtues, and a “healthy order” will most “naturally” flourish within interior rural settings where “traditional values” and religious commitments remain central to local communities. By extension, of course, coastal urban centers are more turbulent and chaotic and deviant, more cosmpolitan, more open to “foreign” influence and corruption. In the truly strange article positioning British Catholic convert (and future Catholic saint) G.K. Chesterton as an “Old Dixie” fatboy-fanboy, for example, the author states:

When Chesterton wrote his book What I saw in America, he referred to the Northern Cities of the United States as “forests of brick” and a “labyrinth of lifeless things.” What may seem strange to many contemporary American conservatives is that Chesterton was not surprised to see progressivism, crony capitalism and urbanization running amuck in the Northern portion of the United States, as he saw this as the logical terminus of the apostate Puritan (G.K. Chesterton and Old Dixie).

Of course, Donald Trump’s 2016 election triumph, and the subliminal (and superliminal) discourse of conservatives and the Republican Party, before and since, has exploited the ethnic, racial, and cultural differences embedded within the rural-urban dichotomy. The Creation Project will frequently return to these dualistic (and dueling) pairings: the tension between farm and city, order and disorder, virtue and corruption, simplicity and complexity, and stasis and motion.

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The Unchanging Principles of Conservatism Defined (The Daily Signal, August 22, 2019)

The federal government is instituted to protect the rights bestowed on individuals under natural law. It exists to preserve life, liberty, and property—a mission that includes not only protecting the sanctity of life, but defending freedom of speech, religion, the press, and assembly, and the right of individuals to be treated equally and justly under the law, and to enjoy the fruits of their labor.

No, America Wasn’t Built On Slavery, But Faith That All Men Are Created Equal (The Federalist, August 21, 2019)

Slavery was and is an abomination. The ownership of one man over another is an affront to both natural law and our God-given inalienable rights as human beings. It is an evil part of America’s past—as well as that of nearly every nation on earth. The fact that slavery has a universal heritage does not absolve American slave owners, but it does provide a necessary historical context.

The Ghost Of John C. Calhoun Haunts Today’s American Left (The Federalist, August 20, 2019)

[Calhoun] believed instead that politics was the exercise of pure will, and that the scope and exercise of political power should be based on “scientific” principles, not natural law or inherent human rights. In that sense, he has far more in common with the modern-day left and the champions of leftist governance than he does with the GOP. As Jaffa has written, “Calhoun’s denial of natural equality is pro tanto and ipso facto a denial of man’s nature as a free and reasonable being. In this, of course, he anticipates the metaphysical determinism of contemporary behavioral science.”

What a bitter irony, then, that Bouie and the Times have come around to embracing the central tenets of Calhounian thought: that the American Founding was a monstrous lie, that natural law is pure folly, and that the promissory note is worthless.

Liquid Border (The New Inquiry, August 20, 2019)

The laws of the sea are different than those enforced on solid ground; they’re more essential. They apply in the confined space of a boat skimming the waves. The sea doesn’t have foreigners or citizens, illegal immigrants or refugees, just sailors and castaways. The former are obliged by natural law to rescue the latter because, in a mirror-like relation, all those shipwrecked were once sailors, and all sailors could become shipwrecked. This binary logic compels vessels at sea to rescue anyone in peril. All other concerns come second to this obligation. The sea doesn’t have its own laws; that’s why we have the law of the sea, which is both an extreme human attempt to control the dangerous situations in which we may find ourselves and, at the same time, a recognition of our inferiority to this powerful natural element.

An Answer to the Pope, a Leader of Libertarianism’s Critics (American Institute for Economic Research, August 18, 2019)

It is for this reason that the Catholic Church positioned itself against socialism at the very dawn of the idea in the modern world. In 1878, forty years before the Bolshevik Revolution, Pope Leo XIII wrote in Quod Apostolici Muneris that the socialists were plotting to “leave nothing untouched or whole which by both human and divine laws has been wisely decreed for the health and beauty of life.” Above all, he wrote, the socialists were wrong to “assail the right of property sanctioned by natural law; and by a scheme of horrible wickedness, while they seem desirous of caring for the needs and satisfying the desires of all men, they strive to seize and hold in common whatever has been acquired either by title of lawful inheritance, or by labor of brain and hands, or by thrift in one’s mode of life.”

Assisted Suicide: The Ethics, the Laws, and the Dangers (Public Discourse, August 17, 2019)

The clearest moral assessment of suicide arises from the Christian tradition. In his encyclical Evangelium Vitae, “The Gospel of Life,” Pope St. John Paul II reaffirmed the traditional Christian view, saying that “euthanasia is a grave violation of the law of God, since it is the deliberate and morally unacceptable killing of a human person.” He described this teaching as based on natural law, available to any reasoning person, as well as on the written word of God.

Book review: ‘Reason, faith, and the struggle for Western civilization’ by Samuel Gregg (Acton Institute, August 16, 2019)

Western civilization blossomed as three tectonic strands of thought converged. The Jewish diaspora familiarized the Roman Empire with monotheism and the ethics embodied in the Decalogue. Greek philosophy, which had reasoned its way to an embryonic and incomplete monotheism of its own, taught that an unseen wisdom, or logos, ordered all of creation and allowed the human mind to participate in the transcendent. Philo of Alexandria harmonized these two systems of thought as completely as Scripture and conscience allowed. Finally, Christian universalism taught that all people are children of one God and subject to one standard of truth. Thus, the rational order embedded in natural law revealed, in a rudimentary sense, the character of the Almighty. The notion of a rational God animated theologians, from the Christian Platonists and Augustine to Maimonides. In due time, when the civilization matured, it would have profound meaning for human rights and limited government. The rejection of a God Who is pure will leads to constitutional limits that constrict the arbitrary exercise of power.

G.K. Chesterton and Old Dixie (Abbeville Institute, August 15, 2019)

Within Christian and conservative circles, the great English writer Gilbert Keith Chesterton (1874-1936) is widely considered one of the most important authors of the Twentieth Century. As a poet, novelist, mystery writer, journalist and Christian apologist Chesterton excelled; presenting a formidable challenge to the encroaching progressivism and secularism to which the greater part of the English speaking world has succumb. In many ways Chesterton embodies the best of the conservatism of Edmund Burke together with the classical liberal democratic ideals of the old English Whigs. Among the pillars of the edifice constructed by Chesterton’s thought are: an emphasis on the classical Natural Law tradition, a tremendous respect for the old Roman Republic and civilization, and a devotion to orthodox/creedal Christianity.

What Would It Take To Build a World Without Globalists? (Alt-Market, August 14, 2019)

If you want to understand what evil is, you have to first have an awareness of natural law and the voice of conscience. Religions have their own guidelines for what constitutes evil, and some of these are valuable, but as religions become centralized and bureaucratic they can be twisted to serve evil purposes. Ultimately, wise people know evil when they see it because they listen to their inner warnings.

Evil seeks to violate every tenet of natural law. It seeks to turn every function of human stability on its head in mockery. It seeks to undermine love, hope, family, safety, and especially freedom. Evil seeks to corrupt or destroy everything in its path. It seeks to gain not through industry and invention but through theft. It seeks to take what it should not have; not only this, but it takes a certain detestable joy in subjugating or torturing the innocent.

• Natural law philosophy assumes intrinsic rational capacities of humans to properly perceive and pursue uniquely human goods.
• For centuries, natural law assumptions of intrinsic human rational capacities have been theologically agnostic. No Creator God required. Thoroughly optional!
• Beneath these open skies, natural law philosophy ranged broadly and proactively across the spectrum of evolving human circumstances and needs, to encompass international law, revolution and self-determination, social justice, and human rights.
• Since 1965, conservative natural law philosophers have systematically reverted to traditional Catholic, revealed religion, and God-dependent obsessions with sexual deviance and social disorder.
• The “New” Natural Law is actually “old” and “unnatural,” backward-looking, dogmatic, reactionary, and – by virtue of its sins of omission – extremely punitive.

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Catholic natural law precepts infused the 1948 UN Universal Declaration of Human Rights, the adoption of which represented in some sense an arrival of a Catholic moral perspective positioned to sweep away the more retrograde baggage of the Church associated in prior decades with the inversions of fascist and Nazi regimes across Europe. However, Catholic natural law moral philosophy swung hard right in the 1960s. This “New Natural Law” expressed a cramped and twisted conception of human universality that began and ended with sexual morality. With the traditionalist Catholic right having in recent years penetrated many of the nation’s most significant media, political, legal, and educational institutions, what may seem like merely a crank political and moral philosophy has had enormous consequences for millions of people around the world.

What is “New” About the New Natural Law

The “New” Natural Law (NNL) that emerged from the religious and political turmoil of the 1960s – let’s call it the decade spanning Vatican II (1962-1965), Pope Paul VI’s papal encyclicals Dignitatis Humanae (1965) and Humanae Vitae(1968), and the U.S. Supreme Court’s Roe v. Wade decision (1973) – hardly resembled the less systematic and more discursive applications of Thomist natural law in prior centuries.

For nearly a millennium, natural law philosophy pursued positive, optimistic, forward-looking agendas that engaged and embraced the reality of social change. Natural law thinking had previously supported fresh perspectives about international law and the law of the sea (Hugo Grotius), the right to revolution and to national self-determination (John Locke), abolition of slavery (Frederick Douglass), Christian-Catholic notions of sin (Gilbert Chesterton), social justice (Antonio Rosmini), universal human rights (Jacques Maritain), and civil rights (Martin Luther King, Jr.).

By contrast, NNL returned to traditional Catholic obsessions with sexual deviance, family collapse, and social disorder. In this period, natural law philosophy shifted from a flexible and proactive set of ideas for adapting to evolving human circumstances into a rigid, reactionary, punitive, self-righteous, and disingenuous propaganda platform for the most conservative elements of the Catholic church and its intellectual apologists.

Austrian Economics Samples the New Natural Law: The Reviews are not Positive

Given their atheistic leanings, the lovable anarcho-capitalist avatars of Austrian economics at the Mises Institute in Alabama have evinced a surprising affinity for natural law. Their affection for its most optimistic precepts illustrates the combinatorial power of natural law philosophy as an open-ended meditation on the “natures” of things. In 1986, libertarian genius-nutjob Murray Rothbard published The Ethics of Liberty, a systematic effort to ground his concept of human liberty in the essential nature (hence eternal and outside of history) of humans themselves.

In The Ethics of Liberty, Rothbard threads the needle between the 4^th-century theology of Augustine and the 20th-century mechanics of science to align himself with the 13th century Thomist natural law tradition. Rothbard believed this centuries-old tradition had carved a philosophical space independent from both theology and mechanics that could on its own terms, without reference to either a transcendent Creator or an immanent Creation, discern a system of laws derived from the natural order.

And so Mises Society reviewer David Gordon reported the sympathy with which he encountered Robby George’s tome, In Defense of Natural Law, which Oxford University Press published in 1999.

Would it not be excellent to have a sophisticated defense of this moral theory? Further, the author, a professor of politics at Princeton, combines two qualities rarely yoked together. He has an extensive and sophisticated grasp of the literature of analytic moral philosophy. Nevertheless, he rejects contemporary liberalism’s usual defenses. Who could ask for more?

Unfortunately, it seems, David Gordon could ask for more.

Dr. George is not the philosopher for whom we have all sought anxiously. His political philosophy is resolutely statist, and his version of natural law is not the genuine article. Rather, it is a bizarre concoction brewed by Germain Grisez, John Finnis, and their many collaborators. In fairness to them, they think their position faithfully expounds and develops Aquinas. I hope their historical contention fails, as it would be a shame to think a great philosopher capable of such nonsense.

“Bizarre concoction” indeed. One need not accept the more lunatic or contradictory aspects of Austrian economics to appreciate this disturbing weirdness of NNL, a dubious set of propositions that, as we shall see, more properly deserve to be labeled the “Old Unnatural Law.”

Blame it on the Sixties

In it what might be remembered as one of the less defensible readings of recent history, 92-year old Joseph Ratzinger (the conservative Catholic prelate also known as Pope Emeritus Benedict XVI) has blamed the moral disconnection and sexual depravity of the 1960s for the priestly scourge of child sexual abuse ravaging the Catholic Church since at least the 1950s. Most people would probably respond that the flexible sexual sensibilities of the 1960s are irrelevant to decades of child sexual abuse in the Catholic Church, because the Catholic Church itself is a sexually self-consuming ouroboros.

The retired Pope may have a point in one sense, however, if priestly pedophilia somehow represented compensation for the emerging liturgical deficits of the Catholic Church in the 1960s. This perspective would certainly comport with traditionalist arguments for a return to the thick mesmeric layers of liturgy capable of weaving their own contraceptive sheath around the clergy.

So too with the New Natural Law of moral philosopher Germain Grisez, which represented a sexually charged philosophical expostulation against the abradement of received tradition that  shadowed Vatican II. A devout Catholic and professor of moral philosophy at Georgetown University, Grisez used this Catholic moment of institutional doubt to ponder the consequences of what he took to be ethical imperfections of Aquinas’s moral philosophy, resulting from the instrumental application of this moral philosophy to serve the ends of Aquinas’s true concern, which was systematic theology.

Whether this equivocation about Aquinas’s philosophical rigor is actually valid remains unimportant. For Grisez had also scanned the moral philosophies (truly, the guides for living) of those succeeding Aquinas in the centuries that followed and found them to be “a lot less impressive and a lot less philosophically viable than what you’ve got in Aquinas.” In the 1960s, Grisez himself – sensing opportunity in the rancorous debate about contraception within the Church – stepped in to fill this cavernous ethical breach, with a prodigious output of scholarship culminating some 30 years later in his The Way of the Lord Jesus, a compendium of pastoral guidance on all questions that touch upon the religious faith and obedience of Catholics (including weirdly specific and technically explicit sexual instructions for believers).

Ordered Love and Disordered Hate

For the origin story, let’s listen to Russell Shaw, Germain Grisez’s Boswell, whose essay based on conversations with Grisez was included by Robby George as the afterword of an edited volume about Grisez published by Georgetown University Press in 1998. We can start with a useful tell: “when the time came [for Germain] to go to school, the hurly-burly of classroom and playground struck him at first as an unpleasant change from the well-ordered atmosphere at home.” The psychic comforts of well-ordered environments pervade NNL, with the preeminent good the order that finds everyone and everything occupying their proper place within the great chain of being.

To honor the primacy of order, let’s call NNL, as first formulated by Grisez, a moral philosophy based on the vision of an “ordered love” governing the thoughts and deeds of humans. For Grisez, “Morality lay in the relationship between choice and action and the good of the human person: to be ‘for’ the different aspects of the well-being and full-being of persons was to be ‘loving;’ to be ‘against’ these human goods was to be ‘unloving.’”

Within the framework of NNL, the highest and most unassailable good is human procreation. For Grisez, then, “the choices to contracept” (and “to abort”) are disordered forms of hatred that violate “the human good of procreation and as such can never be justified.” In this foundation precept of the New Natural Law, Grisez anticipated and influenced Pope Paul’s Humanae Vitae, issued in 1968, which unconditionally condemned any use of contraception by Catholics (including those swallowing the bitter Pill).

In almost symmetrical counterpoint to the loosening of sexual morality in the 1960s, Grisez tightened the screws. Despite an ostensibly broad focus on the shared goods all humans might rightly seek, Grisez actually shrank and concentrated the scope of natural law moral philosophy to a sexual catechism serving this highest human good: species procreation. We can appreciate the population debates of the 1960s as context for the sexual liturgy Grisez unsparingly outlines for his readers. However, the implications of this focus extend far beyond the population conversation (although it remains relevant) to encompass wholesale philosophical and political mischief resulting from every other human good the New Natural Law has ignored and abandoned as irrelevant or counterproductive to its mission.

Upon this foundation of reaction to the promiscuity of the times, Grisez subsequently inspired and guided a significant community of like-minded philosophers (including Joseph Boyle, John Finnis, David Novak, Olaf Tollefsen, Christopher Tollefsen, Hadley Arkes, Robert P. George, and Neil Gorsuch) who in the past 50 years have dutifully served as his prophets, laboring to explain, improve, and proselytize tenets of the New Natural Law, fortifying it as a dam against surging global tides of immorality and debauchery.

Woe is Me

In a way, it makes sense that traditionalist Catholics bake despair into their conversations. After all, if the starting point for your worldview is that our earthly dispensation is a veil of tears; and you proceed from there to the actual history of slaughter, barbarity, and other random acts of mayhem that afflict our species (illustrating all too poignantly the point about the veil and the tears); and then you consider the inadequacy of our institutions, secular and sacred, to manage this flux (this flux without and this flux within); and then you consider how the world is filled with evildoers who relish and encourage the deviance and the disorder; and then you wonder, why the fuck is Jesus taking so long; well then, of course you’ve not got much choice but to routinely heave your guts into the dark and burly storm-wracked seas across which we blindly wander.

But still … it is striking the degree to which a convulsive capacity for self-pity and resentment has served as the condition for the enormous output of NNL philosophizing in the past 50 years. We witness this bitter brew when Germain Grisez tells Russell Shaw about the pervasive and unremitting hostility he faced from the academic establishment, dating back to the 1950s, in both non-Catholic and Catholic institutions, to the neo-Thomist framework of his ideas, and to the conclusions of his philosophical inquiries, as a Catholic believer, into the ethics of contraception. Grisez found himself at odds with and alienated from his colleagues, and from his culture, at every stage of his career.

The obsession with “religious freedom” of Catholic traditionalists betrays a similar preference for self-marginalization that has little to do with facts and a lot to do with a reactionary (yet disingenuous) inclination toward martyrdom. We see this propensity on display in Robby George’s remarkably tendentious address about courage to the Western Conservative Conference in Denver in August 2019. In this speech, George called on his audience to defy the assaults of “cultural elites deploying the coercive power of the government to force them to conform to progressive ideological orthodoxy.” He exhorted them to exercise their “courage” muscles, which for George meant “refusing to be bullied or intimidated into acquiescing to, or silently going along with, the dogmas that the progressive movement, via the exercise of its extraordinary cultural power, is attempting to force on us.” And he warned them of dire consequences for flexing these muscles. “Anyone who displays the courage I am describing will be smeared. He or she will be called vile names (‘bigot,’ ‘hater’). He or she may be placing at risk social standing, opportunities for educational or professional advancement, the future of the business he or she has worked hard to build, perhaps even treasured friendships.”

These are simply odd statements, at many levels, perhaps none odder than the notion that “hater” (a term that is often textured in interesting ways) is a “vile name.” The message is also rich with irony, given that the Christian right’s beloved Cyrus, Donald Trump, is president and we live in a time when cultural conservatives actually control key institutions in media, government, politics, law, and academics (yes, academics).

The Manhattan Declaration

But it is George’s Manhattan Declaration, published a decade earlier and signed online by more than 550,000 people, which crystallizes the degree to which a beleaguered fanaticism is integral to the philosophical scaffolding and political program of NNL. Charter signatories of the Manhattan Declaration included such Christian conservatives notables as Gary Bauer, Marjorie Dannenfelser, Patrick Deneen, James Dobson, William Donohue, Dinesh D’Souza, Stuart Epperson, Jonathan Falwell, Tony Perkins, Robert Sirico, and George Weigel. A motley crew.

Please note that George and his co-authors (one of whom was ex-Watergate felon and Christian evangelist Chuck Colson) drafted the Manhattan Declaration in October 2009, when President Obama had been in office for less than a year and when the United States was struggling to extricate itself from devastating conflicts in Iraq and Afghanistan and foundering domestically amidst the worst economic crisis in nearly 80 years. In this context, the preamble of the Manhattan Declaration seems at once bizarrely detached from the world in which most people are living, but entirely appropriate as a molotov cocktail initiating the culture wars that swept Tea Party candidates into Congress in 2010. Note the language of threat, jeopardy, promiscuity, infidelity, coercion, and compulsion in this document.

While the whole scope of Christian moral concern, including a special concern for the poor and vulnerable, claims our attention, we are especially troubled that in our nation today the lives of the unborn, the disabled, and the elderly are severely threatened; that the institution of marriage, already buffeted by promiscuity, infidelity and divorce, is in jeopardy of being redefined to accommodate fashionable ideologies; that freedom of religion and the rights of conscience are gravely jeopardized by those who would use the instruments of coercion to compel persons of faith to compromise their deepest convictions

The Manhattan Declaration included a tired rehash of the eternal philosophical debate about whether an unjust law is no law at all, alongside bromides about how Christianity throughout history, from Roman times through the American civil rights movement, has resisted and refused to submit to these unjust laws, with the weirdly insipid but dissimulating conclusion that a well-heeled, well-organized population of (mostly) white, conservative Christian activists must take to the barricades to defend medieval sexual assumptions and values that have little purchase in the modern world. In this sense, then, the primordial value assigned to “religious freedom” itself functions as a trojan horse for unleashing the culture war soldiers Robby George and other signatories have marshalled to defend the sanctity of marriage, family, and the rights of the unborn. Unfortunately, the Manhattan Declaration becomes a clarion call that the  sexual obsessions of NNL adherents fully cheapen and undermine.

Like much of what Robby George has written, especially in recent years, the Manhattan Declaration was a rearguard action that conveyed a defensive tone, unpleasant spirit, and stubborn instinct; the voice for a NNL movement that is doomed to fail, even when it succeeds, because it can only look back and never ahead; and that does not really care because the failures it knows are more interesting and safer to ponder than the successes it cannot imagine. The major question with which the Manhattan Declaration leaves us is whether George and his most censorious Manhattan Declaration disciples (who are definitely not interested in a Benedict Option retreat from the world) are prepared to destroy the mote in the eye of their brother without acknowledging the beam in their own.

Inverted Values

The National Organization for Marriage (NOM) provides one answer to this question, but it is a complicated answer, and not entirely the answer one might expect. Co-founded in Princeton by Robby George in 2007 to promote passage of California’s Proposition 8 prohibiting same-sex marriage in California, NOM has since opposed female reproductive rights (abortion and contraception access), civil union and same-sex marriage legislation, gay adoption, and the right for transgender individuals to use bathrooms that accord with their gender identity. Brian S. Brown, a formerly Quaker convert to Catholicism from Whittier, California has served as the president of NOM since 2010, and has since routinely topped the hit charts at People for the American Way’s Right Wing Watch for his globe-trotting missions to defend NNL conceptions of “natural marriage” and defeat the “inverted values” associated with contraception, abortion, LGBTQ rights, and marriage equality.

There is a lot of weirdness here, concerning the organizational and financial muscle of the Mormon Church backing Proposition 8; publication by the Becket Fund for Religious Liberty, in the aftermath of Prop 8’s passage in 2008, of an open letter in the New York Times condemning the allegedly “mob-like” behavior of gay opponents to the initiative; creation of a webpage, called NoMobVeto.org where those supporting the letter could add their signatures; and the subsequent devolution of this webpage, via some strange genealogy better left unexplored, into an online casino gambling website based in Muslim-majority Indonesia.

NOM remained cozy with the Mormon Church. Ender’s Game author Orson Scott Card served on its board for a number of years and the organization reportedly received significant funding from wealthy LDS backers. NOM also received significant amounts of seed funding from the Knights of Columbus, and (for the conspiracy-minded) allegedly maintained ties with shadowy Catholic lay institution Opus Dei.

The organization has more recently fallen on hard times, with reported annual revenues tipping precipitously, from more than $9m in 2012 to only $525k in 2017, and significant balance sheet red flags. Other signs of organizational decay include stale and dated content, and links to recent website documents that Google Chrome warns might be digitally compromised (typically evidence of a technology infrastructure to which no one is paying attention). Despite these concerns, Robert George remains a NOM director (as of the 2017 IRS filing).

And Brian Brown has certainly not lowered his profile. Brown has since 2016 served as president of NOM’s international counterpart, the International Organization for the Family, which organizes the annual conferences of the World Congress of Families, using this global platform to launch rancid assaults on the “forces of darkness” (led by Barack Obama and George Soros) that are attacking the “natural family” (a “term of art” that directly derives from NNL philosophy and theology).

All around the world, we see liberal secularists using the power of government to seek to undermine the natural family. Urged on by wealthy elites, western powers — especially Barack Obama — demand that nations change their laws and policies in profoundly unwise and dangerous ways to embrace the agenda of the secular left — abortion on demand, an abandonment of marriage, acceptance of polygamy, normalizing pedophilia, transgenderism, stripping children of their inherent right to a mother and a father, etc.

A recent New York Review of Books investigation of American dark money’s pivotal role in the rapid ascent of the hard right in Europe, Latin America, and the Middle East, places Brian Brown, alongside Steve Bannon, at the center of this carnival. Brown serves on the Board of the ultra-conservative Catholic petitioning organization CitizenGo and Brown’s associate, digital media political consultant Darian Rafie, regularly provides CitizenGo founder Ignacio with fundraising and technology services.

Brian Brown evidently shares both the “unalienable rights” convictions and the “heat-seeking missile” predilections of Mike Pompeo when it comes to authoritarian leaders. Brown frequently celebrates his relationships with right-wing autocrats (in Russia, Italy, Hungary, Poland, Moldova, Turkey, Israel, Egypt, Saudi Arabia, India, and Brazil) and has been particularly fulsome in his praise for and efforts to cozy up to Russia’s Vladimir Putin, Italy’s Mattheo Salvini, Hungary’s Victor Orban, and Moldova’s Igor Dodon. Most recently, following the January 1, 2019 inaugural address of Brazil’s new president, Jair Bolsonaro, which heralded his nation’s “liberation from socialism, inverted values, the bloated state and political correctness,” Brown drafted a fundraising letter to his suppporters that attained new heights (or depths) of obsequiousness with its praise for Jair’s “unabashed and brave defense of pro-family values” and Jair’s commitment to honor “God above everything.”

The Mote and the Beam

As the NY Review article emphasizes, the political fulcrum of the global radical-traditionalist Catholic insurgency has been logistical, financial, digital, and electoral support for right-wing parties with charismatic, authoritarian leaders who support the “life/family/freedom” NNL agenda of Robby George’s Manhattan Declaration. Which returns us to the New Natural Law, which must address the darker complexities of the answer to the question I posed at the beginning of this section concerning the mote and the beam.

In its most distilled form, NNL starts with Aquinas and ends with abortion. The recursive sexual loops of its logic are incredibly punitive, particularly toward women, but also toward the millions of vulnerable “unborn lives” the Robby George’s of the world have made it their mission to protect. Because the true contraceptive sheath wrapping the rhetoric of unborn rights – what we might call the “sins of omission” – are the human goods the New Natural Law excludes from its lexicon, the goods that post-partum human flourishing requires.

The beam in the eye of conservative Catholics such as Robby George is this sheath of separation between the circumstances of sexuality and reproduction and the circumstances of the lives each of us actually leads. The failure – indeed the active refusal – of the proponents of the New Natural Law to address directly these “circumstances of life” has had cataclysmic consequences for families and children, in the United States and globally. The beam in the eye of conservative Catholics is the conflation of “virtue” and “order,” and their compulsion to enforce order as the condition for virtue.

The fig leaf of the “natural family” as a proxy for these life circumstances will not do. Because this apolitical “focus on the family” as the location of virtue conceals a highly political “focus on the state” as the location of order. The beam in the eye of conservative Catholics such as Robby George, then, finally, is the shadow of the political alliances they are willing to make to enforce order at the expense of virtue. In my next Creation Project essay, I will explore the relationship between the politics of abortion and adoption to the illustrate these contradictions at the heart of the New Natural Law.

In recent years, I’ve written quite a bit about the ideas and influence of conservative legal scholar, political philosopher, and public intellectual Robert P. (Robby) George, who serves as the McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University. At the risk of inserting myself too directly into the intellectual fabric of the stuff I’ve written, it seems reasonable to account for this somewhat weird focus of my labors.

The specific prompt for this essay is today’s Washington Post article on one of Robby George’s many proteges, Neil Gorsuch, who is of course also a Trump-appointed justice of the U.S. Supreme Court. I’ll have a few things to say about Gorsuch in another essay. For now, it is worth mentioning that, in addition to Gorsuch, Robby George has mentored and advised many of the nation’s most ambitious and influential conservative jurists and politicians,  most notably Texas Senator Ted Cruz. The point being, if you pull a thread from Robby George’s impeccably tailored 3-piece suit, some fascinating unraveling is likely to occur.

From my perspective, Robby’s origin story, writings, influence, and prominence make him a terrific vehicle for exploring the more subtle and arcane significance of natural law moral philosophy. I care about natural law because its uses and abuses in the past millennium provide us with an enormously clear and penetrating framework for thinking about the relationship between religion and politics, and about the deeper structures of the history of western civilization, which after this millennium of ascendance is at a monumental tipping point on which it is not too bombastic to say the future of the planet may depend.

However, my own (massively less interesting and consequential) origin story also dovetails with Robby’s, and in the interest of full disclosure, deserves mention. I grew up in Princeton, New Jersey, less than a mile from the Princeton University campus where Robby has spent the bulk of his adult life. Like Robby, I also attended Swarthmore College, where I was two years behind Robby. I knew Robby indirectly, through mutual friends, although he surely did not know me, a shy and awkward student far more on the margins of campus life. Robby was a political animal even then, student council president (of course), earnestly engaged in the trivia of campus politics, and with his conservative fashion sensibilities, owlish formality, and seriousness of purpose, he distinguished himself to everyone on campus as a bird of distinct plumage, a kind of phoenix rising in the late 1970s from the fading embers of 1960s campus radicalism.

Robby and I have shared a few other data point in our lives. As he did for Robby, Swarthmore political science professor James Kurth served as a mentor who radically, tectonically shifted the entire scope of my thinking, both as an undergraduate and for quite a few years thereafter. Kurth is one of those rare people whom nearly everyone will acknowledge is the smartest person in any room he enters. When I knew him, his politics defied categorization, except to the degree he eschewed liberal pieties and blandishments of the sort that are commonplace on elite college campuses. Another student from my era Kurth deeply influenced, Peter Deutsch, attended Yale Law School and then served for nearly two decades as a member of the Florida state legislature and then as a member of Congress. Deutsch, who is Jewish, and George, a devout Catholic, could not have been more different, personally and politically, but like Jim Kurth, who was at the time having his own internal struggles with ultimate meanings, destinies, and commitments, and who subsequently joined an evangelical Protestant church, both Robby and Peter seemed to have found strength and solace in personal religious journeys and identities that seered within their minds disdain for the shallow, secular instincts of liberal American culture.

I did not accumulate Robby’s alphabet soup of advanced degrees (JD, MTS, DPhil) from the world’s most esteemed universities (Harvard, Oxford), but did receive a PhD in political science from Berkeley, where I studied political philosophy. Today’s Post article tells us Neil Gorsuch assumed his duties on the Supreme Court as if “shot from a cannon.” Robby George’s progress through the staid groves of academe was similarly incendiary and in some sense, of course, virtually preordained. While Robby, like many conservatives, likes to characterize himself as an outsider, he has also and always been very much been an insider. As someone who could rarely escape his own shadow, my academic career following graduate school almost instantly sputtered and died, an outcome that was also probably preordained.

So that is where any convergence between my origin story and Robby George’s origin story terminates. Robby went on to become Robby George and I went on to become an itinerant bumpkin. However, I never stopped thinking about the same foundational questions that have through the years (and in different ways) also absorbed Robby George, Peter Deutsch, and Jim Kurth. Which certainly could have carried me in a theological or spiritual direction, but which ultimately did not.

In college, I wrote a 240 page honors thesis about the liberal response to the rise of the radical right in the United States in the early 1960s, with a special focus on right-wing Protestant fundamentalists who effectively seized the radio airwaves in a manner not unlike the later impact of conservative talk radio. My doctoral dissertation focused on the trial and execution of England’s King Charles I to explore what I took to be the psychological origins of what we now know as liberal democracy. The English Puritans were central to my research, and I subsequently extended my inquiries to the Puritan foundations of American identity (where I discovered and found rapture in the cathedral-like mind of Harvard historian Perry Miller).

If we jump forward several decades, nothing much had changed. I got married. I had a family. I started a company. I wrote a novel. But my sense of how the world worked remained in an undisturbed state of disturbance. I remained a Henry Adams pessimist, well aware of our need for redemption but entirely unable to believe in a God that might assist with the redeeming. And then everything changed. The 2016 election led me in directions that in some ways radically diverged from my previous research interests, but in other ways drove me far more deeply into this central quandary of my existence regarding redemption without a redeemer.

Ironically, perhaps, I give all credit to Steve Bannon, whose obvious importance for figuring out what the fuck just happened following the 2016 election required me to investigate the wellsprings of his dastardly, dangerous, but not un-Kurth-like mind. Going down that rabbit hole forced me to face directly the importance of the Catholic Church – Catholic traditions, Catholic theology, Catholic historiography, Catholic philosophy – for the irruption of illiberal democracy of a European fascist hue on American Protestant shores. Talk about a wake-up call.

So in that sense, the 2016 election was the depth charge in the water that exposed dimensions and layers of a seabed I’d never before considered – both archeologically and architectonically. I take very seriously the reality of anthropogenic climate change, and view this reality as the ultimate, imminent source of crisis for “western civilization” as we currently imagine it, from all angles – historical, political, philosophical, and theological. I now see the ultimate shape of this crisis of western civilization in terms of the complicated, combined influence of the major Abrahamic revealed religions (Judaism, Christianity, and Islam). And I have also grasped the enormous theoretical power of complexity science – of the sort studied at the Santa Fe Institute – to give us a lens on western civilization and western history that can expose and explode what I might call the non-liberal pieties of the Abrahamic faiths. Which is what brought me to Robby George and natural law.

The Abrahamic faiths – based as they are on divine revelation, sacred texts and prophetic moments – require a Creator-centric moral order that exists outside of time and space. Thomist natural law extends and refines, but in no way refutes, the central premises of the Abrahamic religions. By contrast, Creation-centric complexity science actually assumes a fantastic disorder, within time and space, that is random and stochastic, but also self-sufficient and self-sustaining (consider, for example, the distributed intelligence of the hive of bees, the swarm of ants, the school of fish). Complexity science, in other words, locates within Creation itself, the redemption without a redeemer for which I had been searching. The main argument of my Creation Project, then, is that these two perspectives on our existence – do we privilege the Creator or the Creation – are not entirely incompatible, but that they are virtually so, and we are at a moment in our history as a species where we have to choose decisively.

I have no personal animus to Robby George. I don’t know him personally. I only know him by reputation, by the company he keeps, and by his writings. But Robby is enormously influential in ways that I can, by personal dispositon and by professional training, fully appreciate. His views on natural law distill nearly everything about the foundational beliefs of western civilization that the lens of complexity science calls into question, and that require root-and-branch reassessment. I’ll say no more about myself, but the coming conflict between Abrahamic faiths and complexity science is the ultimate unraveling of the Robby George thread-pulling I initiated at the start of this essay.

Two Washington Post essays, spaced apart by 31 months, bookend the ascent and arrival upon the judicial mountaintop of Neil Gorsuch.

In February of 2017, following the nomination of Neil Gorsuch by Donald Trump to replace Antonin Scalia on the Supreme Court bench, Princeton professor Robby George wrote in a Washington Post infomercial that we should ignore the haters on the left. That Neil Gorsuch, his good friend and intellectual brother-in-arms, was “an intellectual giant – and a good man.”

We are now in September of 2019, and The Post has published another weirdly promotional article on Gorsuch, who is fronting for his new book, A Republic, If You Can Keep It. This profile assesses Gorsuch’s “cannonball” impact on the Court – the 22 questions he asked at his inaugural oral argument, the volume of his written dissents (more than any other justice), the 337 pages of opinions, the confident disregard for judicial precedent – underscoring the clear impression that Gorsuch is a new breed of justice, brashly lacking in deference to his elders and to tradition, fully comfortable with the power at his fingertips, the offspring one might imagine unfurling were Antonin Scalia and Clarence Thomas to produce a child together. As the Post headline tells us, Gorsuch is “everything conservatives hoped for and liberals feared.”

Along the way, he has established himself as one of the court’s most conservative justices and a reliable vote for Trump initiatives that have reached the Supreme Court — the travel ban on those from mostly-Muslim countries, adding a citizenship question to the census form and allowing a ban on transgender service in the military to go into effect. He has shown a willingness to overturn precedent and an impatience with more reticent colleagues. More than anything, he has displayed a supreme confidence that his originalist approach to the law is the most disciplined and principled way to go about his job as a justice. “I’m all in, and I wanted to explain that,” Gorsuch said in a recent interview in his chambers.

In reality, Gorsuch is worth studying because (far more than his old high school chum Brett Kavanaugh) he illustrates what a federal judiciary dominated by attorneys birthed and cossetted within the insular folds of the Federalist Society will look like as the Senate’s Sorting Hat speeds Trump-appointed judges to federal courts that each increasingly resemble the Hogwarts House of Slytherin. Imbibing from Day One the insinuating logic of “natural law” and “originalist” and “textualist” methods, Gorsuch heralds a new era that transforms judges into priests of the occult who examine the entrails of ancient texts on behalf of ancient concepts of order that have almost nothing to do with the rule of law or the values of justice and equity or the lived experiences of Americans inhabiting a tottering planet in the 21^st century.

Robby George Knows Neil Gorsuch

Some background is in order. In the letter of recommendation he wrote for Neil Gorsuch at the dawn of the Trump era, Robby George enumerates his friend’s qualifications to become a Supreme Court Justice. Here is what Robby George says.

• Robby George knows Neil Gorsuch. Because they are longtime friends and colleagues, George knows “firsthand” that “Gorsuch’s combination of outstanding intellectual and personal qualities places him in the top rank of American jurists.”
• Neil Gorsuch is an intellectual superstar. Measured by the “standards of intellect and education,” Gorsuch is an “off the charts intellectual superstar.”
• Neil Gorsuch is undogmatic. Perhaps sensitive to vague liberal unease about the Catholic intellectual undercurrents of the legal conservative movement, George hastens to tell us that Gorsuch “is not dogmatic, and his credentials explain why.” We learn these credentials include degrees from Columbia University, Harvard Law School, and Oxford University; Truman and Marshall Scholarships; doctoral thesis supervision from natural law philosopher John Finnis; Appeals Court and Supreme Court clerkships; and service himself for more than a decade as a judge on the 10^th Circuit Court of Appeals.
• Neil Gorsuch is a Boy Scout. “If Democrats are looking for a point of vulnerability in either Gorsuch’s integrity or impartiality, they won’t find it. He is basically a Boy Scout. He’s a faithful husband, a good father, a caring neighbor, a generous friend, a man of probity who holds himself to the highest ethical standards.”
• Neil Gorsuch is an Episcopalian. “Oh, and he will bring religious diversity to a Court that is entirely Catholic and Jewish: He’s an Episcopalian.”
• Neil Gorsuch fully conforms to the Scalia mold. Gorsuch greatly admires Antonin Scalia. Like Scalia, Gorsuch is fully committed to “textualism” and “originalism,” the conservative jurisprudential methods canonized within the Federalist Society that tell us “the Constitution should be interpreted in a way that is faithful to the text and guided, where the text is less than perfectly clear in its application to a question, by the original understanding of its framers and ratifiers.”
• Neil Gorsuch will uphold the law. Despite being a “conservative intellectual giant,” Gorsuch will not be “a ferocious partisan or an ideological judge.” Gorsuch understands that when the law diverges from his own views about right and wrong, justice and equity, politics and morality, he must side with the law, “as Scalia himself famously did in holding that the desecration of the American flag is political expression protected by the First Amendment.”

Here is what Robby George does not say.

• Merrick Garland. Robby George never mentions Merrick Garland, the judge on the DC Court of Appeals nominated by President Obama to fill the Supreme Court vacancy left following Antonin Scalia’s death. Neil Gorsuch was only ever in consideration for this slot on the Court because Republican Senate Majority Leader Mitch McConnell blew up more than a century of Senate precedent by refusing to hold confirmation hearings for Merrick Garland. George’s failure even to signal a recognition of the politics surrounding the Gorsuch nomination is actually a fairly startling sin of omission, and truly an act of bad faith, as one can be sure he would have viewed comparable behavior from the Democratic side as entirely delegitimizing to whatever nominee they might have put forward under similar circumstances.
• Knowing Neil Gorsuch. Robby George assumes we should trust Neil Gorsuch because Robby George knows him. But Robby George also “knows” people like Ted Cruz, along with some of the more extreme anti-gay bigots of the last 30 years, including Neil Gorsuch’s (and his own) dissertation advisor, John Finnis. So it might be good if Robby George also tells us why it matters, or why we should care, that he knows Neil Gorsuch when it comes to a lifetime appointment to the highest court in the land.
• Neil Gorsuch, Intellectual Superstar. Robby George tells us Neil Gorsuch is an intellectual rock star, but in a lapse that he would likely not let slide from his undergraduates, he does not show us (with evidence) that Neil Gorsuch is an intellectual rock star. I assume we are supposed to take him at his word because he knows Neil Gorsuch, but what we are left with are merely the “standards of intellect and education.” Whatever that means.
• Credentialing Neil Gorsuch. For reasons that are never explained, Robby George also invokes the heuristic of credentials to demonstrate that Neil Gorsuch is not dogmatic. Not coincidentally, these credentials (Harvard JD, Oxford D. Phil, John Finnis thesis supervision) are identical to Robby George’s most prized personal credentials. And because Robby George never fails to emphasize that he is not dogmatic, we are led by some unspoken but ineluctable transitive logic to the obvious conclusion that Neil Gorsuch must also not be dogmatic.
• Boy Scout. Two points worth mentioning here, because Robby George himself elides them. As we have seen time and again, the “Boy Scout” image is often carefully cultivated and not reliable. And as with achievements such as Marshall Scholar and Truman Scholar, the skill set required to create and burnish this Boy Scout image are more often than not a fastidious attention to “playing the game,” to “fitting in” and “conforming,” to “kissing ass” rather than “kicking ass.” Which isn’t to say being a virtuous fellow of the “Boy Scout” variety should disqualify anyone from being a Supreme Court Justice. But by the same token, the Boy Scout reputation should hardly be the first, or even the last, hurdle one must clear to become a Supreme Court Justice.
• Episcopalian. I was hoping Robby George was joking when he wrote that Neil Gorsuch’s religious affiliation as an Episcopalian would bring “religious diversity” to the Supreme Court. He was not. What Robby George does not tell us is that Neil Gorsuch was raised as a Catholic and that he attended Catholic Georgetown Preparatory School with that other well-known “Boy Scout,” Brett Kavanaugh. Given Gorsuch’s tutelage under John Finnis and Robby George and his commitment to natural law moral philosophy, it remains uncertain what sort of “religious diversity” his Episcopalian status in any way brings to the Court. Moreover, as George also surely knows, even if one excludes Gorsuch, 7 of the most recent 12 Justices appointed to the Supreme Court in the 33 years since 1986 have been Catholic, compared to only 6 of the 107 Supreme Court justices appointed in the 196 year span between 1789 and 1985 (the first being Roger Taney of Dred Scott fame in 1836). Which suggests that saying Neil Gorsuch is an “Episcopalian” instead of a “Catholic” is a distinction without a difference.
• Originalism and Textualism. Robby George repeats the clever conservative talking point about the Scalia vacancy, which is the presumption a seat on the court shall forever exist that requires a justice poured from the “Scalia” mold. An odd but useful premise. From this perspective, George tells us, no candidate is more qualified than Neil Gorsuch, who as Gorsuch himself says, is “all in” on originalism and textualism as the foundation methodologies of conservative jurisprudence. George does not mention the affinities between natural law moral philosophy and the fetish of the text implicit in originalist and textualist methods, an affinity that has led Clarence Thomas to impute providentially divine origins to the nation’s founding documents and that assign to them sacred status of divine revelation. To this point, as a useful Mother Jones article on Neil Gorsuch’s connection to natural law moral philosophers such as John Finnis and Robby George reminds us, Robert Bork himself warned in 1992 that fidely to natural law gives judges “rein to lay down their own moral and political predilections as the law of the Constitution. Once that happens, the moral reasoning of the rest of us is made irrelevant.”
• Flag-Burning and Chevron Deference. We all know Antonin Scalia believed the First Amendement must tolerate flag-burning as protected political speech. As have many other conservatives, Robby George trots out this belief as a transgressive act of courage which provides evidence that Scalia, who personally regarded burning the American flag as a desecration, was faithful to the rule of law, not to the rule of Scalia. By the transitive logic he applies elsewhere, George tells us that because Neil Gorsuch has admired and emulated Antonin Scalia, we can be sure Gorsuch, too, as an occupant of the esteemed “Scalia Chair in Supreme Court Studies,” will also eschew “ferocious” partisanship and ideology, and uphold the law, even when required to set aside his own personal moral commitments. There are many problems with this assertion, which time does not allow us to examine, but the short version of a response might be that George’s own institutional brand, burnished by a carefully cultivated reputation for flying above the fray, will not admit to the near-absence of any other examples, in his 30-year tenure on the Court, of instances in which Scalia, who was charismatic and pugnacious, but also closely tied to his Catholic origins, allowed much daylight to emerge between his personal beliefs and his reading of the law. Interestingly, the other major instance of self-restraint we can adduce to Scalia, was his famous defense in 1989 of Chevron deference, which other legal conservatives including Neil Gorsuch have since dismissed as a highly unwelcome capitulation to the administrative excesses of the New Deal and the regulatorys state. In the next section of this essay, we will explore some of the implications of Chevron, which Trump political appointees and judges are now systematically dismantling, for insights into how Neil Gorsuch is likely in the next three or four decades to comport himself as a Justice of the Supreme Court

Neil Gorsuch and Chevron Deference

Early in 2017, shortly after the Senate confirmed his appointment to the U.S. Supreme Court to replace conservative judicial icon Antonin Scalia, Neil Gorsuch delivered a victory lap speech at the annual conference of the Federalist Society. Gorusch’s big applause lines concerned his: a) snide reproach to those who characterize the Federalist Society as a secret cabal scheming in darkness to infiltrate and control the federal judiciary; b) defense of of his controversial (and weird) “frozen trucker” dissent as a federal appeals court judge; and c) full-throated and triumphant affirmation of originalist and textualist judicial philosophies the Federalist Society and legal conservatives support as articles of faith.

Let’s consider these remarks in turn.

The Secret Cabal

This is what Gorsuch said about the idea that the Federalist Society is a “secret cabal.”

If you’re going to have a meeting of a secret organization, maybe don’t have it in the middle of Union Station and then tell everybody to wear a black tie. It’s not a shadowy cabal in need of Joe McCarthy.

Here’s the thing. No one believes the Federalist Society is a shadowy cabal. While not a large organization compared to its right-wing big brother, the Heritage Foundation, The Federalist Society is enormously well-funded and well-organized. One could infer the organization schemes and acts under cover of darkness, given its lack of emphasis on publishing research. And there is some evidence that its major domo, Leonard Leo, works furtive financial magic across a spectrum of shadowy right-wing organizations. However, the Federalist Society’s explicit mission has for decades been to function as an “activist” organization, with the clearly stated aims of: a) Recruiting law students to its conservative values, methods, goals, and practices; and b) Packing the federal court system with its acolytes.

Gorsuch’s remark is therefore a disingenuous red herring, but one fully consistent with the feckless line the Federalist Society has fed its suppoters and backers for years – that we’re small, beleaguered, disparaged, and maligned / but plucky, feisty, principled, and courageous.

The Case of the Frozen Truck Driver

In his victory lap speech, Gorsuch also archly revisited the controversey surrounding his bizarre (but revealing) dissent in Trans-Am Trucking v. Administrative Review Board, U.S. Department of Labor (2016). This is what Gorsuch said.

When it’s done everyone, who’s not a lawyer is going to think I just hate truckers … but so be it. In our legal system, judges wear robes, not capes.

Gorsuch and his black-tied cohorts at the Federalist Society extravaganza all got a good “let them eat cake” chuckle from his Trans-Am Trucking “dissent defense.” But if you read the majority opinion of the Court, and then Gorsuch’s dissent, the poverty of his analysis is striking, and its import vast beyond the scope of the decision itself.

The Details

In January 2009, Alphonse Maddin was transporting cargo through Illinois when the brakes on his trailer froze because of subzero temperatures. Maddin reported the problem to his employer, TransAm Trucking, and waited three hours for a repair truck. Lacking heat, losing feeling in his extremities, numb in his torso, and uncertain about when (or if) the repair truck would arrive, Maddin finally unhitched his cab from the trailer and drove away, leaving the trailer unattended. He was terminated for abandoning the trailer.

The Majority Opinion

The 10th Circuit upheld the final order of the Administrative Review Board of the Department of Labor. This order had ruled that Maddin had engaged in protected activity under the Surface Transportation Assistance Act (STAA) when he reported the frozen brake problem to TransAm and when he refused to obey his supervisor’s instruction to either stay with the trailer and wait for help or to drive the truck while dragging the trailer. This appellate decision turned on the ambiguities of the undefined term “operate” in the STAA, with some reliance upon the influential Chevron Supreme Court decision to affirm the authority of the Department of Labor, in this instance, to interpret its way through this statutory ambiguity.

The Court’s opinion pivoted on the protected status offered by the STAA to an employee who “refuses to operate” a vehicle that a reasonable person might conclude was unsafe  to the employee or the public. The Court dismisses TransAm’s assertion that because Maddin drove the truck after being told to “stay put,” he did, in fact, “operate” his vehicle and so could not claim protection under the “refusal to operate” clause. In the absence of a statutory definition of the term “operate,” the  10th Circuit resolved the ambiguity of the usage of the term (invoking Chevron) by affirming that the agency’s interpretation was “a permissible construction of the statute.”

The Gorsuch Dissent

The Gorsuch dissent in TransAm Trucking is striking for the smug, pedantic, patronizing, and gratuitous (yet labored) endeavour to undermine (if not strip away altogether) the “reasonable person” and “permissible construction” foundations of the opinion (one can easily see why his Supreme Court colleagues may regard Gorsuch as a smarty-pants). Here is the gist of the dissent.

For the Court, according to Gorsuch, it is irrelevant whether the TransAm termination decision was “wise” or “kind.” The Court’s only concern is whether the termination decision was illegal. The trucker did not “refuse to operate” his vehicle. He unambiguously “operated” the vehicle even when instructed not to do so. “And there’s simply no law … giving employees the right to operate their vehicles in ways their employers forbid.”

Chevron confers no administrative deference in this case. Absence of a statutory definition of the contested term (operate) is not sufficient basis for constituting “ambiguity,” given that one might adequately resolve any definitional uncertainty by turning to a dictionary. Which Gorsuch promptly does, providing his colleagues with definitions of the words “refuse” and “operate”.

In any event, Gorsuch tells us, the Department of Labor itself never claimed the statute was ambiguous and never invoked Chevron “step two deference” as the basis for its interpretation. With a rhetorical flourish that underscored his contempt for the administrative state (shared by many at the Federalist Society), Gorsuch reminded his colleagues that courts don’t normally make uninvited “forays” into case law on behalf of litigants, “least of all administrative agencies.”

Gorsuch instead placed upon Congress the burden for including language in it legislation that explicitly would allow the employee to “refuse to operate a vehicle in the particular manner the employer directs and instead operates it in a manner he thinks safe.” Without such explicit and declarative language, Gorsuch argued, there is no textual basis for the Court’s decision, and this remains true even if the stated purpose of the STAA, and the intention of its legislators, was to secure the “health” and “safety” of employees under circumstances of the sort experienced by Maddin. For Gorsuch, legislative intent and legislative history cannot override the plain and literal meaning of a statute.

His conclusion in the TransAm Trucking dissent is therefore that the 10th Circuit’s majority in this instance commited a “well-documented mistake” when it assumed a statute pursues its “putative (or even announced)” purposes to their absolute or logical conclusions (particularly for ends as “ephemeral and generic” as health and safety). The Court’s job is “to apply the law Congress did pass, not to imagine and enforce one it might have but didn’t.”

Law and Order

In his TransAm Trucking dissent, Gorsuch’s jurisprudential logic is so literal and so barren that one is left wondering whether, in his calculations, any meaningful role exists at all for the courts, and for judicial review (and, for that matter, for any administrative or regulatory body), given the burden of responsibility he lays upon the legislature to precisely enumerate, in all conceivable instances, what its laws permit and what its laws forbid.

Despite the nod he gives to intentionalism in his Federalist Society speech, Gorsuch clearly is only concerned with the intentions of the founders, not the intentions of the lawmakers. Which leaves us with troubling questions about how Gorsuch and his Federalist Society colleagues perceive the purposes and functions of government, generally. In other words, what does the rule of law encompass, ultimately, beyond the maintenance of “order,” of clear lines of authority and submission that brook no dissent?

Federalist Society Triumphalism

We can learn more about how Gorusch envisions the scope of the rule of law in his remarks about the triumph of originalist and textualist judicial philosophies his Supreme Court confirmation represents.

The duty of a judge is to say what the law is not what it should be. Tonight I can report, a person can be both a committed originalist and textualist and be confirmed to the Supreme Court of the United States. Originalism has regained its place and textualism has triumphed and neither is going anywhere on my watch.

Several points here.

As Gorsuch well knows, the distinction between what the law is and what it should be is not binary, but subject to gradations of ambiguity, nuance, and consequence. His statement about the duties of judges is therefore rhetorical and ideological, not substantive and meaningful, and more significantly relevant as an ahistorical rendering of the Constitution as revealed religion.

Originalism and textualism have likewise become ideological shibboleths freighted with meaning for those initiated to their mysteries. Federalist Society luminaries will tell us judicial review does not need knowledge or guidance assembled from legal precedent, legislative history, social science, natural science, or data science. Judicial review requires only the inert words captured in a small, fixed, and dated set of canonical “founding” texts (Declaration of Independence, Constitution, Federalist Papers, etc.). These “original” texts are a Procrustean bed, a Solomonic, incontrovertible measuring stick, no matter how anachronistically ill-equipped they may be for comprehending and adjudicating the most pressing matters and challenges of our time. Hence, legal conservatives such as Gorsuch will writhe around the unanswerable and possibly irrelevant question: What did this clause of the Constitution mean to the Founders? One might reasonably ask in return: Why not closely inspect entrails?

Gorsuch’s preening and strutting bombast reflects, generally, the triumphalist swagger of The Federalist Society, which for the past three decades has viewed itself as a government-in-waiting, now fully ascendant, and not in the least bit troubled by the need to saddle and mount the rampaging, caterwauling, bucking bronco they once swore never to ride.