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The Esoteric Benedict Option

Natural law and the US Constitution in the post-Christian era

Sorry that I’ve been away from the keys all morning; I’ll tell you about that shortly. I see that there’s been some talk on Twitter about Paul DeHart’s essay titled “What’s Wrong With Rod Dreher’s Straussian Narrative Of The American Constitution?”

My initial response was:


What I meant by that was that I’ve never read the political theorist Leo Strauss, and wouldn’t know a Straussian from a Seussian. DeHart allows for that:

While Rod Dreher may not have read Strauss, he seems to have absorbed and adopted a broadly Straussian construction of the history of Western thought.

What does he mean by that? Read:

I have in view the conservative appropriation of Strauss’s ancient-modern divide as the axis mundi. In this way of thinking, historical Christianity belongs on the premodern side of the divide. Modernity is a rupture with antiquity and classical thought and therefore with Christianity, which is an instance of ancient-classical thought.  

On this view, the political order established by America’s founders and framers stands on the modern side. The Constitution ratified in 1789 is considered the first modern Constitution. What matters most about it is that it stands downstream from the likes of Thomas Hobbes—downstream from the decisive rupture with classical western thought. 

For some influenced by Straussian history of thought (Patrick Deneen and perhaps Michael Hanby), to be on the ancient-classical side of the divide is good, whereas to be on the modern side of the divide is to be bad, allied with the unraveling of Western civilization. Since the American Constitution is a modern Constitution, it was conceived in sin; it is ultimately the progeny of the ultra-modernist theorist Thomas Hobbes, as mediated and moderated by John Locke.  

In the piece, DeHart contends that I reject the natural law, meaning that I do not believe that there are moral truths that can be reached without special revelation. That’s not really true, though it is true that I am ambivalent about the natural law, and totally skeptical of the efficacy of arguments based on natural law claims. The two are connected, as David Bentley Hart wrote in a 2013 essay that occasioned lots of contentious banter between him and Thomists. Hart began:

There is a long, rich, varied, and subtle tradition of natural law theory, almost none of which I find especially convincing, but most of which I acknowledge to be—according to the presuppositions of the intellectual world in which it was gestated—perfectly coherent. My skepticism, moreover, has nothing to do with any metaphysical disagreement. I certainly believe in a harmony between cosmic and moral order, sustained by the divine goodness in which both participate. I simply do not believe that the terms of that harmony are as precisely discernible as natural law thinkers imagine.

That is an argument for another time, however. My chief topic here is the attempt in recent years by certain self-described Thomists, particularly in America, to import this tradition into public policy debates, but in a way amenable to modern political culture. What I have in mind is a style of thought whose proponents (names are not important) believe that compelling moral truths can be deduced from a scrupulous contemplation of the principles of cosmic and human nature, quite apart from special revelation, and within the context of the modern conceptual world. This, it seems to me, is a hopeless cause.

Classical natural law theory, after all, begins from the recognition that the movement of the human will is never purely spontaneous, and that all volition is evoked by and directed toward an object beyond itself. It presupposes, moreover, that beyond the immediate objects of desire lies the ultimate end of all willing, the Good as such, which in its absolute priority makes it possible for any finite object to appear to the will as desirable. It asserts that nature is governed by final causes. And, finally, it takes as given that the proper ends of the human will and the final causes of creation are inalienably analogous to one another, because at some ultimate level they coincide (for believers, because God is the one source in which both participate). Thus, in knowing the causal ends of nature, we should be able to know many of the proper moral ends of the will, and even their relative priority in regard to one another.

So far, so good. But insuperable problems arise when—in part out of a commendable desire to speak to secular society in ways it can understand, in part out of some tacit quasi-Kantian notion that moral philosophy must yield clear and universally binding imperatives—the natural law theorist insists that the moral meaning of nature should be perfectly evident to any properly reasoning mind, regardless of religious belief or cultural formation.

The Thomist philosopher Ed Feser argued strongly against Hart. I don’t want to revisit all that now. As a practical matter, though, it ought to be perfectly clear that natural law arguments are impotent in the face of postmodern voluntarism and radical individualism. I remember thinking as soon as I read the last paragraph of Sherif Girgis, Ryan Anderson, et alia‘s What Is Marriage?, a natural law (that is, non-theological) defense of traditional marriage: “That was brilliant and airtight … but it’s not going to change a thing.”

Why not? Because it’s like trying to explain color to people who have lost most of their sight, or music to someone who has lost the faculty of hearing. Alasdair MacIntyre is right: most people today take moral arguments to be statements of how the person making them feels about a thing. He calls this emotivism. Most people these days, I believe, are emotivists, which entails the fact that they certainly don’t believe that they themselves are bound to change their position based on the argument made.

You don’t have to hang around the faculty lounge to see this. I have conversations with everyday people all the time in which logical discourse is not possible, and so do you. I had a political exchange not long ago with someone I know. I pointed out the illogic in his claim, showing that he was affirming contradictory positions — that both things cannot be simultaneously true. He looked at me uncomprehendingly. He knew what he wanted to believe, and he was not budging.

Clear thinking is in all times and places difficult, but it is especially so today because the sense that Truth is something outside ourselves, and that we have to discover, in part through reason, has largely been lost. This calamity has a hundred fathers, but I trace them all back, ultimately, to nominalism.

DeHart is correct that the US Constitution, as an Enlightenment-era document, is based on natural law. I don’t think the Founders appreciated — or anybody of that era appreciated — how much their understanding of natural law depended on Christian presuppositions, or at least the widespread societal affirmation of the basic Biblical worldview. DeHart writes:

While Christianity appropriates ideas from classical antiquity, it also fundamentally transforms them. By contrast, even though modernity rejects classical Christianity, it does so by and large within a frame bequeathed to it by Christianity. Indeed, the notions that human beings are by nature equal, that by nature they are free from political subjection, that political order is created by human will and choice, that the community or commonwealth is authoritative or sovereign over government, that there are natural rights that government ought not infringe, that there should be separate jurisdictions of church and government and those who exercise political power should have no authority in religious matters, that human persons transcend and are not defined entirely by political association (be it the kingdom, the polis, or the empire) . . . These all are Christian ideas—or, at least, ideas that were first articulated by classical Christian thinkers.  

So, what happens when Christianity loses its primacy, or when the meaning of Christianity has become so diffuse in a highly individualistic and anti-traditional culture that it has no fixed meaning? We are living through the answer now.

Recall this passage from John Adams’s letter to the Massachusetts militia (1798):

While our Country remains untainted with the Principles and manners, which are now producing desolation in so many Parts of the World: while the continues Sincere and incapable of insidious and impious Policy: We shall have the Strongest Reason to rejoice in the local destination assigned Us by Providence. But should the People of America, once become capable of that deep … simulation towards one another and towards foreign nations, which assumes the Language of Justice and moderation while it is practicing Iniquity and Extravagance; and displays in the most captivating manner the charming Pictures of Candour frankness & sincerity while it is rioting in rapine and Insolence: this Country will be the most miserable Habitation in the World. Because We have no Government armed with Power capable of contending with human Passions unbridled by … morality and Religion. Avarice, Ambition … Revenge or Gallantry, would break the strongest Cords of our Constitution as a Whale goes through a Net. Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.

I leave it up to historians and political theorists to say for sure — I’m only an untutored layman — but it seems clear from this passage that Adams, at least, understood that the Constitutional order depended on strong religion. By “moral,” one has to imagine that he meant either Christian morality, or at least a shared moral code of some sort that bound individual passions.

What is this shared moral code today? I don’t claim that our Constitution is making us bad. I contend that having lost much of our metaphysical and moral foundations, we are adrift, and rapidly losing the capacity for self-government.

When DeHart says:

To underscore the point: the idea that some knowledge of right or of moral obligation can be apprehended by reason alone is not distinctive to the Enlightenment. Therefore, it cannot be used as part of an argument that the American Constitution is modernist and Enlightenment in origin rather than classical or Christian. 

… I would point him to this essay by Patrick Deneen, which would appear to address and to refute the point. What makes the thought of Locke different is its focus on the choosing individual:

As Hobbes’ philosophical successor John Locke understood, voluntarist logic ultimately affects all relationships, including the familial. Locke—the first philosopher of liberalism—on the one hand acknowledges in his Second Treatise on Government that the duties of parents to raise children and the corresponding duties of children to obey springs from the commandment to “honor thy father and thy mother,” but further claims that every child must ultimately subject his inheritance to the logic of consent beginning in a version of the state of nature, in which we act as autonomous choosing individuals. “For every man’s children being by nature as free as himself, or any of his ancestors ever were, may, whilst they are in that freedom, choose what society they will join themselves to, what commonwealths they will put themselves under. But if they will enjoy the inheritance of their ancestors, they must take it on the same terms their ancestors had it, and submit to all the conditions annex’d to such a possession.” Even those who adopt the inheritance of their parents in every regard only do so through the logic of consent, even if theirs is only tacit consent.

This is not to suggest that a preliberal era dismissed the idea of the free choice of individuals. Among other significant ways that preliberal Christianity contributed to an expansion of human choice was to transform the idea of marriage from an institution based upon considerations of family and property to one based upon the choice and consent of individuals united in sacramental love. What it is to suggest is that the default basis for evaluating institutions, society, affiliations, memberships, and even personal relationships becomes dominated by considerations of individual choice based upon the calculation of individual self-interest, and without broader considerations of the impact one’s choices have upon the community—present and future—and of one’s obligations to the created order and ultimately to God.

Liberalism began with the explicit assertion, and has continued to claim, that it merely describes our political, social, and private decision-making. Yet implicitly it was constituted as a constructive or normative project: What it presented as a description of human voluntarism in fact had to displace a very different form of human self-understanding and long-standing experience. In effect, liberal theory sought to educate people to think differently about themselves and their relationships. Liberalism often claims neutrality about the choices people make in liberal society; it is the defender of “Right,” not of any particular conception of the “Good.”

And it is the way of thinking prescribed by liberalism that has undermined the ability of moderns to perceive the natural law. To the ancients, and to the premodern Christians, liberty was meaningful because it enabled us to choose the good. It gave weight and dimension to our choices. To moderns, the choice itself — as distinct from what is chosen — is the point.

My ambivalence about natural law comes from my sense that it depends on concealed presuppositions more than its adherents believe. Doesn’t the feebleness of the natural law concept today serve as … well, if not quite its negation, then something close to it? As Hart says, it’s one thing to believe that there is a such thing as the natural law (I do, he does); it’s another thing to believe that it’s readily accessible. Even if we are wrong, though, again, as a practical political matter … so what? Few people today would give up their right to self-determination and self-definition because someone tells them it violates the natural law.

I’m not trying to be flippant. Anthony Kennedy infamous line:

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

… is as modern as it gets, and radically contrary to the concept of natural law. That single line from the 1992 Casey decision tells you more about the reality of contemporary American political and social thought than a stack of natural law books. I wish it weren’t so, but it is so. And it’s why the idea that we can argue our fellow Americans out of this dark wood we find ourselves in is an idea that makes more sense in a Princeton seminar room than in the post-Christian world in which we live.