Post
09.24.2019

I used to say of our late friend Justice Scalia that, in composing his opinions, he would offer the most handsome examples of the moral reasoning of the natural law, while professing up and down that such reasoning should not be offered by a judge. We have seen judges backing into the reasoning of natural law without apparently realizing it, and without realizing, as Molière had it, that they had been “speaking prose all their lives.”

I guess it should come as no surprise then, on the other side, that we find writers and lawyers backing into the premises of moral relativism, while insisting up and down they are not relativists. I found it hard to believe, myself, that David French would be absorbing the premises of relativism, and so I posed a simple question to him, based on his remarks during his debate with Sohrab Ahmari.

But I posed that question while raising a sharper challenge: to what extent was he willing to contest the “culture war” with arguments that really engaged the moral substance of the issues? Was French willing to use those measures at hand to start chipping away, and possibly scaling back, the decision of the Supreme Court in Obergefell on same-sex marriage? Or was he willing to follow the path of some conservatives, with a Burkean affectation, and regard that issue now as “settled,” and not worth the effort any longer to resist? On that central matter of abortion, was he willing to do more than follow the line of “conservative jurisprudence” and return the issue to the States? Might he join the efforts of some of us to restore the role of the political branches on this issue, and engage the powers of Congress to act under the 14th Amendment? The protections of the law have been swept away from a whole class of human beings, those beings found in wombs—does he really think that Congress has no rightful powers to act?

These are all practical questions of moment. But instead of responding to those rather precise challenges, David French devoted his whole response to a denial that he had fallen into moral relativism. The surprise, if not the shocking thing, is that this accomplished writer seemed utterly unaware that he was digging himself in more deeply in that relativism as he wrote—and that virtually nothing he was saying made contact with the argument. What he offered instead was a remarkable replay of the famous Monty Python sketch on “The Department of Arguments” with French playing the John Cleese role.

A Response Beside the Point

Let’s recall the question. French had cited a notable case on religious groups in a public university (Widmar v. Vincent) and celebrated what he took to be the cardinal point in that case as “viewpoint neutrality.” The Court had come down on the side of an Evangelical group, not because it recognized something legitimate and salutary about religion in the life of a republic, but because it would no more cast a moral judgment on the Christians than on the Leninists and the Nazis when it came to their rightful claim to use rooms on the campus. “My reading of French then,” as I said, “is that he would not have excluded Satanists from rooms at the University of Missouri.”

That reading seemed to follow because it was in line with the arguments offered by other friends who would indeed protect Satanists under the rubric of “religion.” They would recede from casting an adverse judgment on Satanists because they didn’t wish to make any moral judgments on the legitimacy of what any religion taught or practiced. But as I’ve argued, the radical affirmation of evil cannot be consistent with anything we have rightly considered “religion” in this country. It can hardly be reconciled with the God of the Declaration of Independence, the Author of the Laws of Nature, including the Moral Laws.

French, in his response, never rose to deny that reading. He has not responded to that simple query. He has not averred that his understanding of religion would contain the moral premises that rejected the affirmation of evil as a legitimate religious doctrine. On the contrary, he has found other ways of affirming that relativism by offering a parade of liberties and principles, proclaimed in the Constitution, and concluding that they were available to everyone without moral discrimination. And so he says, “the protection of individual and associational freedoms—as defined by the Bill of Rights and the Civil War Amendments—is not an act of moral relativism. It’s a powerful moral affirmation of the equal dignity and worth of citizens before the state.”

But surely French must know that these are protections and rights only for legitimate associations. The Constitution wasn’t offering a license here to cover criminal associations, like the Mafia, and serious challenges have been raised in the past to “associations” such as the Communist party and the Ku Klux Klan. What is running through French’s commentary is the refusal to recognize the oldest axiom of reasoning in classic thought and the American regime: the difference between liberty and license. We affirm liberty for those being called “moral agents” who have reasons for their acts; but every exercise of liberty is properly open to the question of whether that liberty has been used to engage in wrongful acts, as opposed to acts that are rightful or innocent of wrongdoing.

French seems to be under the curious assumption that the affirming of liberty for all commits us to withholding judgment on what is done with that liberty. And so he has curiously written,“I am not a moral relativist because I believe the liberty to disagree is a positive good.” Surely that is a non-sequitur that has no bearing on the subject. It is of course a good thing to be free to have arguments about what is right or wrong, just or unjust. But that cannot mean that we respect, in equal measure, every judgment that is reached at the end of that argument, whether it is a Nazi plea for genocide or the resistance to the killing of the innocent. As Chesterton remarked, “An open mind, like an open mouth, must finally close on something.”

No argument makes sense unless it implies that there are standards of reason at work in reaching a judgment. This common sense of morality has applied to religion from the beginning in this country. As Harry Jaffa remarked,

There may not be a rationalist religion, but there is certainly a rational component of any religion comprehended by the protections of the First Amendment. The free exercise of religion does not include the right to human sacrifice, to suttee, to temple prostitution, to the use of hallucinatory drugs, or to any other of the thousand and one barbarous and savage religious practices that have been features of barbarous and savage religions.

When David French refuses to rule out Satanism under the rubric of legitimate religions, is it because he has receded altogether from the very possibility of judging practices as “barbarous” and “savage” as long as they are done under the name of “religion”?

The laws came to ban polygamy, and when that practice was purged from Mormonism, the Church of the Latter Day Saints had to be regarded as free to practice its devotions without the intrusions of the government into its teaching or into the arrangement of its Elders and officers. We cannot be bereft of moral judgment when it comes to judging the practices of religion, but it is a facile assumption on the part of David French and some of his friends that, in barring the wrongful uses of freedom, we are barring religious freedom altogether.

The same understanding was at work in the traditional doctrines on regulating speech before the Supreme Court took its first turn to relativism in 1971. Thugs could be barred from burning crosses outside the homes of black families even as people could still be free to publish racist diatribes. Mr. Rosenfeld could be barred from using “motherf—ng” in every clause he spoke without being barred from making the most searing critique of his schoolboard in New Jersey. Historically, the law in America has usually worked to bar the most egregious expressions of insult and obscenity, and nothing in that scheme, moderately and prudently applied, has prevented us from engaging in robust political argument.

Liberty is not License

H.L. Mencken once spoke of those who seem to think that if we’re reserved about demagoguery, we must be against democracy, and “if we’re reluctant to buy the cancer salve, it must be because we want Uncle Julius to die.” It is not fitting for a writer of David French’s caliber to suggest that if we insist on our capacity for moral judgment—if we reject, as we must, moral relativism—then we must be against freedom of speech and religion.

David French is denying he is a relativist while decrying, as an enemy of freedom, anyone who claims that we can distinguish between liberty and license—that we can actually judge at times that wrongful things are done and said through the exercise of freedom. But as the Monty Python troup reminded us with comic clarity, this mode of writing cannot meet the argument.

In the sketch, Michael Palin walks into the office of the Department of Arguments, and pays a trial fee for five minutes of argument. When he walks into the inner office, John Cleese says, “I told you once not to do that.” Palin says, “No you haven’t,” for he had just arrived. Cleese: “Yes, I have.” Palin: “No, you haven’t”—back and forth until Palin says “this isn’t an argument.” “Yes it is,” says Cleese. No, Palin says, “this is a contradiction.” An “argument,” he says, is a statement that is connected to a proposition [which can be judged as true or false].

David French remains my friend, but it is time for him to stop treating contradiction as though it supplied the reasoning of an argument. And beyond that, it is time to get past the caricatures, the straw men, and the affectations of moral relativism; it is time to get on with facing those challenges that were posed: Is he willing to wage the argument in the culture war by making the case for marriage again in the courts and the Congress? Would he have the conservative party appeal to the country over this matter of transgenderism, with its war on parents, its disfiguring of children, and its coercion of the rest of us? In the style of Lincoln, would he be willing to engage the powers of Congress on the matter of abortion to restore protections for those human lives residing for a while in wombs?

In short, what is it that French would wish to see conservatives doing if they would take seriously the moral urgency of the culture war, rather than receding with urbane resignation, and settling in with the regime that has been reshaped for us by the Left?

is Founder and Director of The James Wilson Institute on Natural Rights and the American Founding. He was the main advocate, and architect, of the bill that became known as the Born-Alive Infants’ Protection Act. Among other books, he is the author of Natural Rights and the Right to Choose (2002), and Constitutional Illusions and Anchoring Truths: The Touchstone of the Natural Law (2010), both with Cambridge University Press. A longtime member of the faculty at Amherst College, and The Edward Ney Professor of Jurisprudence, since 2016 he has assumed emeritus status.

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