McGovern was married to Eleanor for 53 years (she died in January 2007) and kept his family intact. Reflecting on his family in a 1996 memoir, the original bleeding-heart liberal neither celebrated his role as a paterfamilias during the cultural upheaval of the 1960s and 1970s nor derided the hypocrisy of home-wrecking, religious-right politicos. Instead, McGovern explored his role in Teresa’s death on December 12, 1994, when she was found in a snowdrift outside a bar in Madison, Wisconsin.

Early in the memoir, titled Terry: My Daughter’s Life-and-Death Struggle with Alcoholism, McGovern ruminated that if he were given a second chance with his daughter, he would parent her differently:

It is not easy to live with alcoholics, but it is far harder to live without them when death steals them away. I do not regret one single act of kindness, patience, or support that I gave to Terry. What I regret is her slowly developing death and the feeling that I could have done more to prevent it.

Nor can I escape regret over the ways in which my political career and personal ego demands deprived Terry and my other children of time, attention, direction—and fun with their father. This was a loss to me as much as to them. …

It is sad for me to read passages in her personal journal describing the hurt and sense of loss she experienced as her dad became more and more caught up in public concerns and his personal gratification while having less and less time for her private needs. My other children have, I suppose, made similar notations.

As the passage suggests, Terry was not a score-settling, ego-boosting account of the Great Man’s life. It was a bracing, honest, mature, and empathetic meditation on the private cost of a public life. Like Helios in Ovid’s tale of Phaeton or David in the Biblical tale of Absalom, McGovern reckoned with his paternal legacy to profound effect.

McGovern’s willingness to own up to faults and shortcomings is not his lone virtue, of course. He is physically courageous, having piloted thirty-five bombing missions over Nazi-occupied Europe; he is a humanitarian, having made significant strides to stamp out world hunger; he is an inexhaustible worker, as his long career shows; and he showed moral courage in speaking out about the Vietnam War, particularly as the Democratic Party’s 1972 presidential nominee. But McGovern’s contrition, it turns out, is limited to his personal sins.

In his new book, What It Means to Be a Democrat, McGovern does not own up to most or even some of his political faults. Yes, he acknowledges his paternity of the post-1968 Democratic Party: its coalition of non-white, female, young, professional-class, and college-town voters; its cultural liberals, including pro-choice feminists; and a key provision of its presidential nominating system, that its party delegates be diverse in terms of race, gender, and age. Yet he is like a husband who left his first wife, got remarried, and fails to reflect on the impact the divorce had on the kids from both marriages.

Take McGovern’s depiction of one of his progeny, the eponymous McGovern coalition, which replaced the party’s blue-collar, Roosevelt coalition (1932–1968), and which every Democratic presidential nominee since 1972 has relied on to varying degrees.

He boasts that this political alliance “took the stage at Grant Park the night Barack Obama captured the election to become our nation’s first African American president.” But those are the coalition’s highlights, not its lowlights or its overall mark. What does McGovern think about the record of the party’s presidential nominees in the last four decades?

As a trained historian, McGovern knows the record better than most. The party has four wins and six losses. (And another loss may be coming: as Nate Silver of the New York Times notes, President Obama is a slight underdog in his bid for re-election.) Compare the record to that of the New Deal coalition. Its presidential nominees had seven wins and three losses. While the gap between .400 and .700 doesn’t sound like much, it is the difference between the greatest pitchers in baseball history, such as Whitey Ford (.693) or Sandy Koufax (.655), and the most pedestrian.

Unlike baseball, politics is about more than winning: it’s about what you do when you win. When Democrats had their Roosevelt or New Deal coalition, its victorious presidential nominees enacted the legislation of the New Deal, Fair Deal, New Frontier, and Great Society—a legacy that McGovern praises and accuses Republicans of seeking to undo. But since Democrats have had their McGovern coalition, its victorious presidential nominees have enacted … what exactly?

McGovern mentions most of the achievements, including family and medical leave (1993), the stimulus package (2009), and the health care law (2010). Yet whether those laws represent a proud legacy is unclear. Based on his frequent invocations of FDR’s and LBJ’s records, the reader can only guess. My guess is that McGovern wants it both ways: He pines for the achievements of the family that he divorced (the Roosevelt coalition) but can’t stop dreaming of the promise of his new family (the McGovern coalition). While his dilemma is understandable, his failure to reflect on the political consequences is neither mature nor wise.

Consider, too, McGovern’s depiction of another one of his progeny, the party’s activist-dominated presidential nominating system, which replaced the old boss system (1832–1968).

McGovern touts the party’s ideology as broadminded: “There are no official Democratic litmus tests … thank heavens!” This is misleading. After all, the party has an unofficial litmus test—the nominee must support abortion rights. Did McGovern forget that feminists prevented pro-life Pennsylvania Governor Robert P. Casey, Sr., from addressing the 1992 Democratic convention about legal abortion, and continues to block pro-life Democrats from doing so?

In addition, McGovern claims that his reform commission (1969–1972) made the Democratic Party more inclusive: “It made sure that, going forward, our delegates included not just middle-aged white men but women, minorities, and young people—any of the millions of Americans who felt they were outsiders to the political decision-making process.” Certainly, McGovern’s reforms helped make the party’s presidential nominating system more democratic internally, as party voters and activists choose the Democratic nominee instead of party bosses.

Yet McGovern’s boast about the inclusiveness of the delegate selection rule is misleading, too. The McGovern commission did more than guarantee non-discrimination for the groups he mentioned. It guaranteed an informal quota to them: State parties were required to choose minorities, women, and young people as delegates “in reasonable relationship to their presence in the state.” This rule change was not made to add to the Democratic family, but rather to divorce the old family and make a new one, which it did. Leaders of the emerging feminist movement of the early 1970s used the gender quotas to align with the Democrats rather than Republicans, and the feminists’ agenda alienated and eventually drove out the party’s cultural conservatives.

Finally, consider McGovern’s depiction of cultural liberalism. He writes that abortion “is essentially a woman’s issue, since none of us men can ever be pregnant or have an abortion.” For someone whose bid for the party’s presidential nomination in 1972 commanded the support of feminists such as Gloria Steinem and Bella Abzug, this statement is not surprising. But for someone whose own daughter had a horrible experience with abortion, it is not only surprising but also jarring.

In Terry, McGovern implies that when he and his wife learned that their 15-year-old girl was unexpectedly pregnant, they agreed with their family doctor’s decision that she should travel to Florida for an abortion. He describes the impact of the abortion this way:

An important part of Terry was devastated by the abortion. Her innocence, her fun-loving nature, and her self-confidence were all deeply shaken, first by an unpleasant sexual experience and then by a pregnancy that she feared and yet did not want to terminate. She later told me of these feelings and then added: ‘I thought that my special relationship with you was over.’ I never knowingly conveyed such an attitude toward Terry. I never expressed anger, nor did I ever hint at any concern about possible political consequences. But Terry felt shamed and reduced by this episode. In retrospect I wish I had gone out of my way to reassure her that for me she remained a ‘special person’ whom I both loved and admired despite her teenage mistakes.

McGovern’s dueling statements on abortion do not reflect well on his intellectual integrity. Publicly, he believes that pregnant women alone should decide whether or not to abort. Privately, he did not grant this power to his own daughter, who did not wish to abort.

Older and historically inclined readers might find it curious that this review has avoided discussing McGovern’s leadership of the opposition to the Vietnam War, the cause for which he is best known. I find it curious that McGovern does little more than broach the topic in What It Means to Be a Democrat. After all, McGovern’s main motive in fathering the modern Democratic Party was not personal glory or enrichment, but ideology: He wanted to end the war.

Almost everything McGovern did in the late 1960s and early 1970s was directed to that goal. His coalition was more likely to oppose the war strongly than Roosevelt’s coalition. Female, minority, and young delegates were more likely to oppose the war than their male, white, and older counterparts. Feminists were more likely to oppose the war than all but a few constituencies.

In short, George McGovern is one of the Democratic Party’s founding fathers—a man as important in party history as Thomas Jefferson, Andrew Jackson, and Franklin Roosevelt. Yet What It Means to Be a Democrat is much closer to being the equivalent of a long op-ed rather than Grant’s memoirs or a political analogue to Terry. For a man, now eighty-nine, who owned up so movingly to his familial legacy, it’s disappointing that he barely attempted to own up to his political ones.

Mark Stricherz, a reporter in Washington, is the author of  Why the Democrats Are Blue: Secular Liberalism and the Decline of the People’s Party (Encounter Books).

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The publication of Harmful to Minors: The Perils of Protecting Children from Sex promised readers a “radical, refreshing, and long overdue reassessment of how we think and act about children’s and teens’ sexuality.” The book was published by University of Minnesota Press in 2003 (with a foreword by Joycelyn Elders, who had been the U.S. Surgeon General in the Clinton administration), after which the author, Judith Levine, posted an interview on the university’s website decrying the fact that “there are people pushing a conservative religious agenda that would deny minors access to sexual expression,” and adding that “we do have to protect children from real dangers … but that doesn’t mean protecting some fantasy of their sexual innocence.”

This redefinition of childhood innocence as “fantasy” is key to the defining down of the deviance of pedophilia that permeated college campuses and beyond. Drawing upon the language of postmodern theory, those working to redefine pedophilia are first redefining childhood by claiming that “childhood” is not a biological given. Rather, it is socially constructed—an historically produced social object. Such deconstruction has resulted from the efforts of a powerful advocacy community supported by university-affiliated scholars and a large number of writers, researchers, and publishers who were willing to question what most of us view as taboo behavior.

Postmodern theorists are primarily interested in writing that evokes the fragmentary nature of experience and the complexity of language. One of the most cited sources for this is the book Male Intergenerational Intimacy: Historical, Socio-Psychological and Legal Perspectives. This collection of writings by scholars, mostly European but some with U.S. university affiliations, provides a powerful argument for what they now call “intergenerational intimacy.” Ken Plummer, one of the contributors, writes that “we can no longer assume that childhood is a time of innocence simply because of the chronological age of the child.” In fact, “a child of seven may have built an elaborate set of sexual understandings and codes which would baffle many adults.”

Claiming to draw upon the theoretical work of the social historians, the socialist-feminists, the Foucauldians, and the constructionist sociologists, Plummer promised to build a “new and fruitful approach to sexuality and children.” Within this perspective there is no assumption of linear sexual development and no real childhood, only an externally imposed definition.

Decrying “essentialist views of sexuality,” these writers attempt to remove the essentialist barriers of childhood. This opens the door for the postmodern pedophile to see such behavior as part of the politics of transgression. No longer deviants, they are simply postmodern “border crossers.”

In 1990, the Journal of Homosexuality published a double issue devoted to adult-child sex titled “Inter-generational Intimacy.” David Thorstad, former president of New York’s Gay Activists Alliance and a founding member of the North American Man/Boy Love Association (NAMBLA), writes that “boy love occurs in every neighborhood today.” The movement continues but has gone underground since NAMBLA found itself embroiled in a $200 million wrongful death and civil rights lawsuit filed in U.S. District Court in Boston. The suit claims that the writings on NAMBLA’s website caused NAMBLA member Charles Jaynes to torture, rape, and murder a 10-year-old Boston boy.

Not so long ago, the postmodern pedophiles had help in defining down their deviance from the American Psychological Association. In 1998, the association published an article in its Psychological Bulletin that concluded that child sexual abuse does not cause harm. The authors recommended that pedophilia should instead be given a value-neutral term like “adult child sex.”  NAMBLA quickly posted the “good news” on its website, stating that “the current war on boy-lovers has no basis in science.”

It appears that a number of postmodern pedophiles have taken the advice to heart. For a while, we lived in a culture in which man-boy sex was not only tolerated, it was celebrated. And while the furor over the allegations at Penn State and Syracuse reveals that male pedophilia remains contested terrain for most, women-girl sex, because of the power of the women’s movement, scarcely registers on the cultural radar screen.

“The Vagina Monologues,” for example, is still part of the standard dramatic repertory in student productions on college campuses—including Penn State and Syracuse. The original play explores a young girl’s “coming of age,” beginning with a 13-year-old girl enjoying a sexual liaison with a 24-year-old woman. Later published versions of the play changed the age of the young girl from 13 to 16 years old, and the play continues to be performed. Last year’s February production at Syracuse was enhanced by inviting an “all-faculty” cast to perform the play on campus.

While the anger over the recent sex abuse allegations would suggest that the deviant label will remain for pedophilia, the reality remains that powerful advocates with access to university presses will continue their semantic and ideological campaign to define down this form of deviance.

Anne Hendershott is Distinguished Visiting Professor at The King’s College, New York, NY.  She is the author of The Politics of Deviance (Encounter Books).

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Fr. Miscamble notes that my critique is “hardly original.” Without a doubt: He cites as precedent the work of Anscombe, Grisez, Finnis, Boyle, and Veritatis Splendor. I had quoted Gaudium et Spes, but could have instead quoted Pius XII, or any major figure from the Catholic tradition who had considered the matter. Aquinas, for example, writes that it is “in no way lawful to slay the innocent” (ST, 2–2, q. 64, a. 6, c.). The condemnation of the intentional killing of the innocent is as firmly taught a moral precept in the Catholic tradition as any.

In fact, this utter lack of originality points to my deepest underlying worry with Fr. Miscamble’s book, at which I gestured toward the end of my review. The question I put to Fr. Miscamble is whether the demands of pro-life, and indeed Catholic, integrity should call forth more than the casual dismissal that the teaching of Veritatis Splendor receives in his essay. Because I think it renders both absolute opposition to abortion and any demand to absolute obedience to the Church incoherent, I am deeply disturbed by his willingness, also displayed by other Catholic reviewers of his book such as Fr. Michael Orsi or Michael Novak, selectively to abandon Church teaching on the ethics of killing when the good of the nation is at stake.

Miscamble rests his defense of Truman, it seems, on a willingness to accept that Truman pursued the least of the evil options available to him. Miscamble’s judgment is that the atomic bombing was “in isolation … a deeply immoral act.” Because it resulted in the least loss of life and ended a bloody war, however, Miscamble apparently believes Truman’s decision to have been justified.

At the same time, Miscamble denies that he accepts a utilitarian approach to morality, “in which good ends can justify certain immoral actions.” But either Miscamble believes that the bombing was not immoral precisely because it brought about the least bad state of affairs, in which case his reasoning is indeed utilitarian, or he thinks that Truman’s action was both immoral and somehow justified. His advertence to Machiavelli suggests the latter; but here again we have something deeply contrary both to the Catholic moral tradition and, I think, to sound reason.

The insistent voice of the New Testament is one demanding moral perfection: “as my Father in heaven is perfect.” Such demands are met with astonishment by the apostles: “if that is true, better that no man should marry.” But Christ never backs down from these demands, never softens them with the counsel to choose the “lesser” evil.

Nor does subsequent tradition embrace “lesser evil” thinking; rather, with St. Paul, it embraces the principle that evil is never to be done that good—including, surely, the good of avoiding a greater evil—come about. How that tradition can be squared with the idea that anyone, anywhere, could be “forced by necessity to enter into evil” eludes me entirely, and we are given no indication in Fr. Miscamble’s essay of how to square this circle.

Rather, we are given the red herring that my approach is too “abstract,” and the accusation that I have offered “no serious proposals regarding a viable alternative.”

The charge of “abstractness” is truly a red herring. If there are moral absolutes—principles asserting that certain kinds of acts are never to be done—they are unavoidably general, and their applicability is not changed by circumstances, so long as the kind of act in question remains the same. No amount of “getting into the head” of the adulterer or abortion-seeker, no amount of attention to the “hard circumstances” of the contraceptor, will change the moral judgment of the licitness of adultery, abortion, or contraception. Such sympathetic engagement is certainly necessary in order to avoid unwarranted judgment of the person; but that is a different matter, and I did not, I should note, ever “denounce Truman as a ‘mass-murderer.’”

Moreover, I deny the responsibility to give much consideration to viable alternatives in this case. What the best options were for Truman, once immoral options had been ruled out, was a matter of military expertise and prudence. I am doubtful that those options would have been whittled down to doing “absolutely nothing.” After all, it is something of an historical contingency that the atomic bomb was completed when it was, and Truman should have been prepared to do something, again within the bounds of the moral, without it.

I want again to reiterate my admiration for Fr. Miscamble and his pro-life witness; it is because I share with him a recognition that this most radical cause is also today’s most important moral issue that I am as “forthright” as I am in voicing disagreement with his judgment about Truman’s choice. For the reasons I have detailed above, I do suspect that the pro-life garment is in danger of unraveling, a suspicion that seems confirmed by consideration of the record for human life in the years since World War II. “Forced by necessity to enter into evil” has been a justification every bit as available to private individuals as to heads of state, with lethal consequences for the unborn.

Matthew O’Brien joins the debate over the intentional killing of the innocent to make a more general point about moral absolutes: They cannot be “justified” without belief in a divine legislator.

O’Brien holds this view while also holding that it can be known without such a belief that certain acts are intrinsically evil. I take this to mean that in themselves—apart from their consequences—such acts do nothing but damage human beings or their basic goods. One can know, according to O’Brien, that such acts are intrinsically evil, but without belief in a divine law-giver, one will not be able to know that such acts are never to be done.

Let me identify a thesis, similar to O’Brien’s, with which I agree: Without situating our practical understanding of, and adherence to, moral absolutes, within a larger theistic framework, I think it unlikely that many people, today or ever, will have the moral fortitude to maintain their allegiance to such absolutes in the face of strong temptations. Refusing to lie, though one’s life will be forfeit; refusing to kill an innocent man, though the nation will suffer; or refusing to make use of modern technologies for baby-making or baby-avoiding when great goods and evils are at stake—the price, in many people’s minds, will be felt as simply too high, and they will lose their grip on the moral absolutes. (Robert Miller makes a similar point in his response to O’Brien.) Remembering that, as Christian tradition teaches, for example, our good acts will be redeemed in the Kingdom of Heaven is, I think, essential for most, if not all, of us to keep a motivational grip on our allegiance to moral absolutes.

But recognizing that an action is intrinsically evil seems to me to involve recognition that therefore it is not to be done unless a rational justification for doing it can be provided. And this is what seems impossible. If deliberately killing tens or hundreds of thousands of innocent Japanese is itself “intrinsically evil” (quoting O’Brien) or “deeply immoral” (quoting Miscamble), then there is in it, as such, no good. So it must be justified, if at all, only because the good of its consequences promises to outweigh the evil of the act itself.

In the specific case of Hiroshima, say, as in all other cases of absolutes, I deny that such an outweighing is possible. What, for example, in the lives of Americans saved was as such a greater good than the lives of the Japanese women and children who were killed? Did the lives of those Americans leave the world with all the good of the lives of the killed Japanese and more? Surely not: Those Japanese lives were lost, never to be recovered on this earth. The idea of a “greater good” here makes no sense.

So no justification exists for asserting that something intrinsically evil may or should be done. But some will deny this; should they be convinced if they come to believe that God has commanded that such acts be avoided? I do not see, in O’Brien’s essay or elsewhere, why God’s command should suffice to justify, unless (and here again I admit to an argument that is “hardly original”) it were independently intelligible—justified—that God’s commands were not to be flouted. Otherwise, God is merely being appealed to as someone with the biggest stick, who can offer sufficient rewards and incentives to make doing something otherwise foolish become desirable and rational.

O’Brien makes a second point about the need for God: to hedge against the possibility of tragic dilemmas. I understand such dilemmas, if there are any, to be circumstances in which, whatever an agent does, he will do wrong through no previous fault of his own. Here is where it is essential that moral absolutes are always framed in terms of what is not to be done; positive obligations—to feed one’s family, to show reverence to one’s country, to care for the poor—by contrast, are not, at an abstract level, absolute, and are always limited by the need to comply with the negative absolutes. If feeding one’s family requires murder, then one may not feed them.

Can universal, negative, absolute moral norms ever conflict? O’Brien says that I do not argue for this. But I ask whether anyone has ever shown that not lying means that one will thereby intentionally kill an innocent, or that not intentionally killing an innocent means that one will forswear one’s faith, or that not committing adultery means that one will thereby contracept, and so on. It seems clear that in the limit case, refraining from willing and doing that which would violate every applicable moral absolute will always be a possibility, even if the consequences threatened by other bad men will be awful and such that, in some other set of circumstances, one might have a positive responsibility to prevent them.

There is much else to say here, but, alas, the stocking is full. Disagreement with my pro-life friends is no treat in itself, but I am grateful for their patience, and for a forum such as Public Discourse where internal differences can be aired with honesty and civility. I wish nothing but the best for Fr. Miscamble, Matthew O’Brien, and all others with whom I have had constructive and truth-seeking conversation here over this past year.

Christopher O. Tollefsen is professor of philosophy at the University of South Carolina and a visiting fellow in the James Madison Program in American Ideals and Institutions at Princeton University. He is the author, with Robert P. George, of Embryo: A Defense of Human Life, the second edition of which recently has been released. Tollefsen sits on the editorial board of Public Discourse.

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O’Brien is clearly right that theists such as Robert P. George and Christopher Tollefsen eschew theological premises in moral argument in order to win a hearing among non-believers. In so doing, they follow a tradition going back at least to St. Paul at the Areopagus. Not all theists follow this line, however. Tim Tebow, for instance, explains his moral views in expressly, even flamboyantly, Christian terms.

The difference here is not merely one of temperament or rhetorical strategy or intellectual sophistication; it goes much deeper, even to the very foundations of morality. For some people—including many Protestant Christians under the influence of Martin Luther—believe in what might be called a divine command theory of morality. On this theory, it is not that some actions are right and others are wrong, with God commanding us to do the right ones and avoid the wrong ones, but that right actions are right precisely because God has commanded them and wrong actions are wrong precisely because God has forbidden them. God’s commanding or forbidding makes actions right or wrong. On a theory like this, it is obviously impossible to argue that a particular action is wrong without invoking the divine command, for there is nothing else to which to appeal. No wonder, then, that people who accept a divine command theory are quick to invoke God and His commands in moral argument.

But divine command theory is in many ways unlovely. Suppose God had commanded us to slaughter our firstborn sons and feast on their roasted flesh marinated au jus; would this be morally permissible? On pain of inconsistency, the divine command theorist must say that it would be not only permissible but obligatory. If his good sense takes over and he says that God could not or would not command such a thing, then there must be some reason for this, and that reason almost certainly is a reason why such actions are morally wrong. But if there are reasons independent of the divine command why certain actions are morally wrong, then divine command theory collapses. Thus, philosophers going back to Plato in the Euthyphro have generally rejected divine command theory.

Now, even without divine command theory, most moral philosophers prior to the twentieth century, theists and non-theists alike, have held that there are some actions that ought always to be avoided, regardless of the consequences or the circumstances. Aristotle and Kant, who agree on very little else, agree on this. I suppose O’Brien could say that the accounts that these philosophers offer all fail and only an appeal to divine legislation will suffice, and, to be sure, the idea that only theistic ethics succeed is trendy nowadays, as in the work of Michael Perry and Nicholas Wolterstorff. I, however, am not convinced.

Consider O’Brien’s treatment of Aristotle on this issue. Noting that Aristotle thought that adultery, theft, and murder are always wrong, O’Brien says that Aristotle does not try “to demonstrate the truth of such absolute prohibitions by appealing to some more basic set of moral reasons.” Rather, “for Aristotle … the grounds for absolute prohibitions bottom out in the perception of actions as base and shameless.”

This makes Aristotle sound rather like G. E. Moore, and O’Brien quite aptly describes the view he attributes to Aristotle as “intuitionism.” But as far as I can see, this account bears no relation to what Aristotle actually says. In the relevant passage in the Nicomachean Ethics (1107a8–1107a27), Aristotle makes no mention of perceiving the baseness of these actions but rather produces a substantial argument about why such actions are wrong. Appealing to his doctrine that virtuous actions lie in a mean between opposing vices, Aristotle says that actions such as adultery, theft, and murder connote vice (i.e., either excess or defect), and so to say that these actions could be right (i.e., lie in the virtuous mean) would be to say that there could be a mean of excess or a mean of defect, which he evidently regards as a contradiction in terms. Whether this argument for absolute prohibitions on such actions succeeds is, of course, open to debate, but Aristotle clearly intended it as an argument, not an appeal to intuition, and Thomas Aquinas accepts and repeats the argument in his commentary on the passage.

Aristotle’s doctrine of the mean is an unhelpful metaphor, but, in the larger context of Aristotle’s moral theory, it can be interpreted in a straightforward enough way. Aristotle is a eudaemonist, meaning that he thinks that man has a natural final end and that actions are right or wrong depending upon whether they are ordered as means to that end. Now, for any given end, an agent’s action may fail to advance that end for any number of reasons, e.g., because the agent does the wrong thing, or acts at the wrong time or at the wrong place, or performs the action in the wrong way, etc. In order to advance the end, the agent’s action must simultaneously be the right kind of action, done at the right time, in the right place, in the right way, etc. When Aristotle says that the virtuous action lies in a mean relative to the agent, he means primarily that a virtuous action must be right in all respects in the totality of the actual circumstances if it is to advance the agent’s natural final end.

In a theory such as this, it is not hard to see how some actions will be absolutely prohibited. For, given any end whatsoever, if the end be sufficiently specified, we can identify actions that will never advance it, regardless of the circumstances. For instance, if the end is delivering medical services in a hospital, embezzling the hospital’s funds for personal consumption will never advance that end. There is nothing mysterious about such claims; they are ultimately causal claims that certain causes (i.e., certain actions) cannot produce certain effects (i.e., the given end). Thus, if the final natural end for man is sufficiently specified, there will be some actions that cannot be means to that end, and these actions are thus always wrong and so absolutely prohibited. That is how Aristotle, at least as interpreted by Aquinas, thought about the matter. And if this is right, we can indeed know that some actions are absolutely prohibited without relying on the divine command.

This is good news, for if we had to rely on the divine command even for the limited purpose of explaining why some actions are not merely usually wrong but always wrong, we would involve ourselves in all the unloveliness of divine command theory. Why, after all, does God prohibit certain actions absolutely, even if on balance their consequences are so good? Is it just because He hates consequentialism the way He hated Esau? This would be a hard saying. In my view, if God prohibits some actions absolutely, regardless of the circumstances, He does so not arbitrarily but for a very good reason—for instance, because such actions cannot be ordered to the final end for man. And if this is the case, then the absolute prohibition can be justified without reference to the divine command after all.

That said, I think O’Brien is on to something important here. For, in our fallen state, when we are faced with an action that, although absolutely prohibited, has consequences that seem to us to be on balance very good, we are sorely tempted to ignore the absolute prohibition or to rationalize some exception to it and proceed with the action. Recall that Tollefsen, to whom O’Brien was responding, was arguing that the nuclear bombing of Hiroshima and Nagasaki was morally wrong because it involved intentionally killing the innocent, even though it likely saved tens of thousands of American lives that would have been lost in an invasion of the Japanese home islands. I agree with Tollefsen on this point, but I do not judge President Truman harshly, for I recognize how easily even a good man might make the decision he did.

Some actions are incapable of being ordered to our final end, and these actions are always and everywhere wrong. God absolutely prohibits such actions, but the divine legislation functions not to ground the absolute prohibition but to enforce it.

Robert T. Miller is a Professor of Law at Villanova University, and starting in 2012 he will be a Professor of Law and Sandler Faculty Fellow of Corporate Law at the University of Iowa.

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1. The ultimate question about the recognition of same-sex marriage is for the whole society to decide, not for judges on putatively “constitutional” grounds. It is a “constitutional” question in quite another sense—that is, it is a constitutive question, about an institution and a relationship that is pre-political, foundational of society itself, and even more basic than our constitutions or political institutions. Therefore the question should always be referred to the people themselves at the polls—and not decided by their legislators, let alone by judges.

2. In deciding the basic question, people should ask themselves, what is marriage? For it is a thing with a nature, and a purpose. Marriage has always been understood, throughout human history, as a comprehensive union of a man and a woman, grounded in their complementary natures—a couple of the kind that is capable of generating offspring, and being father and mother to them. The law of marriage has always fostered and protected this singular kind of relationship that is capable of natural parentage, and the only relationship fully capable of parentage of any kind, if “fathering” and “mothering” are understood as distinctive contributions. Were it not for the fact that the sexual union of men and women regularly produces children, marriage would not exist at all. Its existence and its character are in accord with the nature of that union.

3. Same-sex marriage advocates have so far been unable to give an answer to the question “What is marriage?” that does not result in the complete collapse of all shape and form to the institution. That is to say, if men can marry men, and women marry women, we no longer know what the institution is, or what it is for, or what its boundaries are, or who is to be ruled in and who is to be ruled out as eligible to participate in it. Polygamy is back; polyamory is in; even incestuous relations are impossible to condemn. This is not a slippery-slope argument. It is the observation of an explosion bursting a levee with a wall of water behind it.

4. Such a change to the institution of marriage does indeed affect everyone. Our society has already done great damage to the institution of marriage thanks to easy divorce; thanks to abortion, contraception, and a widespread moral relativism about relations between the sexes; and thanks to social policies that make fatherhood optional when children come along. Marriage needs shoring up, not a “redefinition” that is actually a destruction.

5. Some advocates of same-sex marriage are “marriage abolitionists,” who see the ultimate goal as a legal order that has no category called “marriage,” and same-sex marriage as a way station on that road. They at least know where they are going. But it is not a destination we should seek. Marriage between men and women makes families, and it is right and proper for the law to foster and protect it.

6. A common argument in favor of same-sex marriage is that laws against it are just like the old Jim Crow laws against interracial marriage. In 1967, the Supreme Court struck down such laws, calling the right to marry a “fundamental freedom.” But those laws interfered with marriage by introducing an irrelevant ingredient—race—as though it were a necessary one. That is, those laws used state power to redefine marriage, a natural institution, for artificial purposes. Now, it is the advocates of same-sex marriage who wish to use state power to redefine marriage, to make the word mean something new and thus change its nature, by removing its central ingredient, the coming together of a man and a woman to make a family.

7. That 1967 decision of the Supreme Court was universally accepted, practically without a peep of protest, because every decent person would have been ashamed to argue that blacks and whites cannot marry. No denunciations of the decision came from any pulpits. It will not be so if same-sex marriage is nationalized by the Supreme Court. It will be Roe v. Wade all over again. Every growing, thriving, and theologically flourishing religious community in America today is part of the movement to defend the historic understanding of marriage, and they won’t be surrendering their principles. Their theologies may differ, but they share a common moral reasoning about the nature of marriage. And the defense of marriage can hardly be called an “establishment of religion” when it is agreed to by evangelical Protestants, Catholics and Orthodox Christians, and Mormons, Muslims, and Orthodox Jews alike.

8. These diverse believers also share a quite reasonable fear that in a country that has adopted same-sex marriage, their religious liberty is threatened. For believing what their traditions have always believed, they will be condemned as bigots, and subject to discriminations and pressures. Religious dissenters from the new dispensation, in many tens of millions, will be second-class citizens, and will be chased out of many professions and avenues of business if they will not abandon what their faiths teach them about marriage. Their hospitals, schools, and charitable organizations will be pressured to drop their religious scruples, and to silence their moral witness.

So, I concluded, the destruction of marriage as an institution, its replacement by we-know-not-what, and a mortal blow struck at the religious freedom that our country has always prized, are prices too high to pay for this revolution in the law of marriage. The American people know this, and that’s why they’ve gone to the polls and defended marriage every time they’ve been asked. We should keep asking them, I said.

One of the other speakers on the program was Hayley Gorenberg, an attorney with Lambda Legal, which actively litigates on behalf of same-sex marriage. Ms. Gorenberg spoke before I did, and in her prepared remarks said the following about the alleged injustice of “walling people out of central rights”:

The first [same-sex] marriage cases, if you look them up in law school textbooks, they’re short, they are settled in a matter of a couple of sentences, and you have judges saying things like “well, I looked in the dictionary, and this is what it said marriage was.” We’ve moved a long way from then. We have further to go. . . .

In terms of what the government may say about whether gay people can have their full rights, there is a core, very-easy-to-understand question about who’s getting hurt here and is anybody getting hurt, by giving people their equality. And the fact is, that nobody else’s marriage is going to be hurt or has been hurt by gay people having their equal rights to protect their families as others want to be protected, to protect their children as others want to protect their children. Tradition is not enough to sustain discrimination. Never has been, never should be, under the Constitution. It wasn’t enough to sustain discrimination in marriage based on race, it wasn’t enough to sustain discrimination in marriage that said women should be property, even though all of these things were traditional. Tradition falls when we truly engage with these factors and ask ourselves the question.

In the Q & A that followed prepared remarks by the seven speakers, I reiterated my third point above, that when marriage is destroyed and rebuilt in order to accommodate same-sex couples, there is no principled basis on which to limit marriage to couples. Particularly if the change comes about in courts of law, which prize consistent reasoning by analogy, the precedent of same-sex marriage will mandate, by parity of reasoning, the legalization of polygamy, polyandry, and polyamory.

Following this repetition of my argument, Gorenberg responded as follows:

With regard to the slippery slope, that’s the burgeoning [sic] of the dam, or you know, whatever it might be, if we draw out our metaphors about what it would mean to let same-sex couples marry, should they choose to, these rankings of incest and polygamy and where does it stop?—well, where it stops is when you actually look at the governmental definition of marriage, you know, as it’s laid out.

It is a binary institution, okay, it’s a two-person institution, which means that our marriage laws are drawn up to talk about all kinds of substitute decision-making, custodial choice, that kind of thing, so that if, for instance, there’s a couple that are married, and one of them dies, who gets custody of the children? Generally, you know, it’s the other person in the marriage. If there is somebody who dies intestate, and they don’t have a will, what happens? You know, you look to the other person in the marriage. If somebody’s incapacitated and decision-making needs to happen in the hospital, you look to the spouse. If there were seventeen spouses, that would be entirely unclear. That’s not how our marriage laws are drawn up. They’re drawn up, it’s a binary institution. Something else like polygamy is something else. So when we’re talking about something like entrance into marriage on an equal footing, we’re talking about entry into a binary institution, and a whole raft of laws that feed into marriage recognize that that is the case.

The attentive reader will already have noticed Gorenberg’s self-contradiction. Alas, time ran out in our brief program at Rutgers before I could regain the floor and point it out to her.

She had begun, in her prepared remarks, by calling on a standard of “rights” that cannot be defeated by appeals to “tradition.” And she had mocked judges who, in the early decisions on the case for same-sex marriage, had simply turned to a dictionary definition of marriage.

Yet, in her response to my point about plural marriages, Gorenberg herself turned immediately to tradition and to received definitions. Marriage just is a “binary institution,” she asserted, and changing that fact would entail all sorts of inconveniences. (The historic existence of polygamy in many places is proof that these inconveniences are not insurmountable, but this did not slow her down.)

Why mere tradition was now owed such automatic allegiance, she did not pause to explain. Now the prospect of altering a “whole raft of laws” associated with marriage filled her with horror and incredulity. She seemed quite oblivious of the fact that she was making my argument for me. Where was her concern about changing all the details and complexities of a forest of family law planted thick with assumptions about husbands and wives, mothers and fathers, always of opposite sexes?

In her nimble way, having shed the drag-chute of principled consistency, Hayley Gorenberg demonstrated the great strength of the movement for same-sex marriage. She did not have anything to offer in answer to the questions “What is marriage? What is it for? What are its boundaries? Whom should it include?” She does not need answers to such questions. All she needs is an argument for the moment, for the cause, for the victory she wants right now. If her argument is all sound and fury, signifying nothing, that is not her concern. The cause is self-justifying.

With the institution of marriage and the future of the family on the line, the rest of us don’t have that luxury. And perhaps the race will not go to the nimble, but to the slow and steady.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute.

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Santorum’s remarks led directly and predictably to a chorus of disapproval holding that we ought not to trash the Constitution even in the pursuit of national security. This reaction is understandable. Such profiling is distasteful to Americans. It necessarily involves treating some people as objects of suspicion simply because of who they are, and so it offends our better feelings.

While one may sympathize with this reaction, however, one need not go all the way with Santorum’s critics and hold that profiling necessarily violates the Constitution and is therefore always off-limits to American public officials charged with protecting the nation from attack. Not everything that offends our better feelings is unconstitutional, and not everything distasteful is to be unconditionally forsworn as a tool of national security.

Our inquiry must begin from whatever provisions of the Constitution plausibly may be held to prohibit racial and religious profiling. This is actually not as simple a matter as one might think. The most obvious place to turn in search of a constitutional prohibition on profiling would be the Equal Protection Clause of the Fourteenth Amendment. By its terms, however, that provision applies only to the states. Presumably, the opponents of profiling would not be satisfied with a principle that constrains only state law enforcement officials while leaving their federal counterparts completely free to use race and religion as factors in deciding whom to scrutinize as a possible terrorist.

Fortunately for such opponents, the Supreme Court already has rejected such a disproportion. Unable to tolerate the possibility that the Constitution prohibited racial segregation undertaken by the states but not by the federal government, the Court has held that the Due Process Clause of the Fifth Amendment, which restrains the federal government, contains an “equal protection component.” Guided by this interpretation, we must ask, then, whether the wording of either the Equal Protection Clause or the Due Process Clause forbids profiling.

The Equal Protection Clause provides that government shall not “deny to any person within its jurisdiction the equal protection of the laws.” Does profiling violate this principle? The case that it does is not as powerful as it first appears. To be sure, a law that enacted classifications detrimental to some classes of citizens would be highly suspect. Profiling, however, creates no such issue. Even the most vehement proponents of profiling do not hold that it should be written into the laws; nor, for that matter, need it even be presented as any kind of standing, formalized government policy.

It is rather a matter of executive discretion, a limited decision of law enforcement officials to give greater investigative scrutiny in circumstances where they think there is greater reason for suspicion. The purpose of the exercise of such discretion is not to deprive anyone of the equal protection of the laws but precisely to afford everyone the laws’ protection. The aim is to catch terrorists before they can strike, with the effect of preserving the lives of everyone who might have been killed or injured, including innocent persons who were subject to investigative profiling.

Does such profiling violate the Due Process Clause? Certainly those who are subjected to profiling have something done to them by the government without due process of law. The decision to profile is a matter of executive discretion, a mode of decision-making far removed from anything resembling the formal inquiry implied by “due process.” Again, however, the due process case against profiling crumbles upon closer examination. The Due Process Clause does not require due process of law to precede every unwelcome attention of the government. It rather provides that “life, liberty, and property” may not be taken without due process of law. Persons subjected to profiling are certainly not deprived of life or property on that basis. No respectable voice in America’s public discourse has suggested anything like the idea that people should be convicted and sentenced on the basis of their race or religion.

Those subjected to profiling are not deprived of liberty in any sense serious enough to make a violation of the due process clause. No proponent of profiling would call even for the arrest of anyone simply on the basis of their ethnicity or religion. The most that profiling would involve is more careful investigative scrutiny, usually at security checkpoints related to the public safety, as at airports. Such heightened scrutiny cannot reasonably be viewed as a deprivation of liberty. If it were, then it would be equally unconstitutional to do it to anybody, even at random. Hardly anyone, however, would contend that the Due Process Clause prohibits random application of more thorough searches at airport security.

Any approach that is properly deferential to executive discretion would not find that limited profiling violates the Constitution. Critics of profiling might respond by pointing out that when the Equal Protection and Due Process clauses are arguably involved, the Supreme Court is in a mood to be anything but deferential. The Court instead takes a very dim view of any government actions that create “suspect classifications.” It insists that they be subjected to “strict scrutiny,” meaning that a heavy burden of proof for justifying them falls upon the government.

Even bearing this in mind, it does not follow that profiling necessarily would be held by the Court to violate the Constitution. Even under strict scrutiny, the Court has upheld government policies using suspect classifications. In 2003, for example, the Court affirmed the constitutionality of the University of Michigan Law School’s policy of race-conscious affirmative action. Under strict scrutiny, the government must demonstrate a compelling interest to justify its action. In the Michigan case, the Court held that the state’s desire to secure the educational benefits of a diverse law school class constituted a sufficiently compelling governmental interest to justify its race-based policy. It would be strange indeed if the Court, holding to that proposition, nevertheless claimed that investigative profiling, which is undertaken to protect the nation against violent attack, serves no compelling state interest.

None of this is to say that profiling is a good thing. Governments should not undertake it lightly, and citizens should not tolerate it tamely. It is not even to say that it is generally a useful expedient for protecting public safety. Even some of the most earnest proponents of domestic security hold that profiling is not very helpful. Nevertheless, those who claim flatly that it is unconstitutional are saying that it is simply impermissible in any circumstances. This goes too far.

It is not difficult to imagine a case in which the government has reliable intelligence that a certain kind of attack is being planned by persons of a certain ethnicity or sect. In such a circumstance, it would be a dereliction of duty for those charged with public safety not to weigh such information and to investigate accordingly. Whether and how to do so is a judgment of prudence that belongs in the first instance to those entrusted with the nation’s security. The Constitution does not utterly forbid such exercises of executive discretion.

Carson Holloway is a political scientist and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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Christopher Tollefsen’s recent argument in Public Discourse for moral absolutes flatters the expectations of today’s methodological atheism, because his argument purports to demonstrate on non-theological grounds that it is irrational ever to choose certain intrinsically bad actions. Although I agree with many of Tollefsen’s conclusions, and in particular his judgment that the WWII nuclear attacks were unjust, I think his argument is unsuccessful. Before addressing Tollefsen’s argument directly, however, I need to explain more precisely what aspect of moral knowledge depends upon knowledge of divine law, for a considerable portion of morality is demonstrable apart from knowing that God exists.

A moral absolute is an exceptionless norm against choosing a certain type of action that is intrinsically bad. Recognizing a moral absolute therefore involves two stages of evaluation: first, seeing that some act, such as killing an innocent person, is intrinsically evil, and second, seeing that one ought never to do evil. My contention is that a demonstration of this second stage of evaluation will need to appeal to God’s legislation against doing evil that good may come. This appeal of course assumes that God exists and that He legislates the moral law. Without this appeal, it remains logically possible for someone to think that there are intrinsically evil acts, and to think that virtuous people will habitually refuse to consider committing such acts, while yet refusing to infer that such acts must be avoided in every situation whatsoever.

It is instructive at this point to consider Aristotle. Aristotle thought that there were intrinsically bad actions that nobody ought to consider choosing, and although Aristotle was a theist, his conception of God was not as a providential creator or moral legislator. Aristotle’s example is noteworthy because it shows that it is possible to arrive at the conviction that intrinsically bad actions exist without appealing to God’s legislation. But Aristotle’s example is noteworthy also because of what he does not try to do, which is to demonstrate the truth of such absolute prohibitions by appealing to some more basic set of moral reasons. This is what Tollefsen mistakenly thinks he can provide, and on non-theological grounds. For Aristotle, however, the grounds for absolute prohibitions bottom out in the perception of actions as base and shameless. Such intuitionism is as far as I think non-theological ethics can go. Receiving the correct upbringing will get you to see that certain acts are intrinsically bad, and you ought never to choose them; but in order to go further and demonstrate why this is true, you need to be able to appeal to God’s legislation of the moral law, which is what proves the reasonableness of forbearing from evil in the extreme tight-corner situation.

It is not a criticism of Aristotle to say that his belief in exceptionless moral norms bottomed out in intuition. This is true of most ordinary people for the entirety of their moral convictions, which is unproblematic unless you share the widespread but mistaken view that everyone needs to be a philosopher and have demonstrative knowledge of whatever he believes. Aristotle was unable to demonstrate the exceptionlessness of moral norms because he lacked a philosophically adequate conception of God as a providential creator. Tollefsen may ultimately think that God is a providential creator, but because this thought is idle in his defense of exceptionless norms, the argument falters. Let’s grant his assertions that there is a list of basic goods such as life, friendship, religion, work and play, aesthetic experience, etc., and that these basic goods comprise human well-being and are the ultimate reasons for doing whatever we do. From the fact that we must choose between pursuing mutually exclusive combinations of these various and distinct goods, Tollefsen says it follows that:

one should be always and entirely open to all the goods, in all persons, and never act directly or intentionally against any of the goods in any persons. “Openness” here should be understood to encompass the demand of the goods that they be promoted and protected: one is not open to basic aspects of human well-being if one always does nothing. The goods call, in various ways, for action on their behalf. But in all such action, the core negative requirement of morality is that one never intentionally act so as to damage or destroy an instance of a basic good.

The first thing to note about this argument is that, if it is correct, it generates too many exceptionless moral norms. If the basic good of life generates a concrete norm against intentionally killing people, then does the basic good of aesthetic experience generate an exceptionless norm against destroying artworks or interrupting the contemplation of paintings? This would be an absurd consequence that is at odds with the “common morality” that Tollefsen invokes. But if this consequence doesn’t follow, then the generation of exceptionless norms from the list of basic goods becomes obscure, and the theory of goods fails to provide any independent guidance for identifying or justifying exceptionless norms.

A second weakness in Tollefsen’s argument is the bald assertion that genuine tragic dilemma is impossible. Tollefsen needs to rule out the possibility of tragic dilemmas, because otherwise it would be impossible not to choose to act against some basic goods some of the time, so he asserts without argument that “one can always refrain from intentionally damaging instances of basic human goods.” Why should we think this is true? This assumption might be at home in Aristotle’s metaphysically harmonious universe of eternal species and natural purposes, or in Aquinas’s cosmology of divine governance, but Tollefsen is otiose to front-load his ethical theory with this sort of ontological presupposition. From the bare fact that we perceive life, religion, knowledge, and so on as basic values, it does not follow that these values will never conflict unavoidably in concrete cases.

To many people, the choice faced by the United States during World War II, between invading Japan or attacking it with nuclear weapons, appeared to be just such a tragic dilemma. The common morality of the Judeo-Christian tradition rejects the possibility of tragic dilemmas because it trusts in a providential God who ensures that we will not face them if we always avoid doing evil. Many philosophers and ordinary people outside of this tradition also reject tragic dilemmas because they perceive the world as a gift, or, like many naturalistic scientists, they simply assume that the world is ordered rationally without vagueness or contradiction. But if the aspiration is to produce a demonstrative argument, beyond simple perceptions or assumptions, then the only route is via philosophical theology.

It is possible to demonstrate that practices such as lying, killing the innocent, and adultery are generically bad and that everyone should avoid thinking of engaging in them. And it may be that, as Peter Geach has argued, “the rational recognition that a practice is generally undesirable and that it is best for people on the whole not to think of resorting to it is thus in fact a promulgation to a man of the Divine law forbidding the practice.” But if this sort of inference to morality’s divine source gets ruled out or postponed, then I don’t see any other avenue to justifying the exceptionlessness of absolute moral prohibitions. Domesticating God by placing Him in the anthropological category of “religion,” as one good among many, enervates the normative force of morality.

Truman’s goals in ordering the bombing of Nagasaki and Hiroshima were noble: to hasten the end of the war and to avoid the terrible casualties that were predicted as the result of an Allied invasion of Japan. The means he chose for the sake of these noble goals included the murder of civilian populations, however, which Tollefsen is right to condemn as unjust. To demonstrate why such injustice must never be considered, even in wartime emergency, requires a philosophical theology of a providential legislating God.

Matthew B. O’Brien is a post-doctoral fellow at Villanova University.

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Of course, Tollefsen references the work of Finnis, Boyle, and Grisez on nuclear deterrence, but, in the end, he largely repeats the fundamental criticism mounted against President Harry Truman by Elizabeth Anscombe over a half-century ago: Violating the moral absolute against the intentional killing of the innocent is always wrong. The atomic bombs involved such killing and so should not have been used––end of story. It is all neat, and clear, and logically consistent. And, it now has the seeming added advantage of having Veritatis Splendor to back it up.

Yet Tollefsen’s critique is rather abstract and detached from a real understanding of the war against Japan in 1945 and the courses of action open to Harry Truman. Some philosophers undoubtedly see such an understanding as completely irrelevant. A good historian is more charitable, and so struggles to understand something of the world of policymakers such as Truman with its inevitable compromises and constantly competing pressures. (In this regard let me recommend Michael Burleigh’s recent Moral Combat: Good and Evil in World War II.) The historian accepts the complexity, the uncertainty, and the sheer messiness of policymaking during wartime and acknowledges the tense atmosphere in which policymakers operated. Before this particular historian condemns, he, at least, wants to understand what occurred and why, for this surely aids the task of moral analysis. Let me provide some sense of my book’s conclusions, and then I will present specific reservations about Professor Tollefsen’s argument.

By July of 1945, the Japanese had undergone months of devastating attacks by American B-29s. Their capital and other major cities had suffered extensive damage, and their home islands were subjected to a naval blockade that made food and fuel increasingly scarce. Japanese military and civilian losses had reached approximately three million, and there seemed to be no end in sight. Despite all this, Japan’s leaders and military clung fiercely to notions of Ketsu-Go: a plan that centered on inflicting such punishment on the invader in defense of the homeland that he would sue for terms. In fact, even after Hiroshima, Nagasaki, and the Soviet attack in Manchuria, the Japanese military still wanted to pursue that desperate option, but Emperor Hirohito broke the impasse in the Japanese government and ordered surrender. He came to understand that the atomic bomb undermined (as the brilliant historian Richard Frank has noted) “the fundamental premise” of Ketsu-Go “that the United States would have to invade Japan to secure a decision” in the war. Ultimately, the atomic bombs allowed the emperor and the “peace faction” in the Japanese government to negotiate an end to the war.

Of course, the United States eventually could have defeated Japan without the atomic bomb, but all the viable alternate scenarios to secure victory—continued obliteration bombing of Japanese cities and infrastructure, a choking blockade, the likely terrible invasions involving massive firepower—would have meant significantly greater Allied casualties and higher Japanese civilian and military casualties. These casualties would likely have included thousands of Allied prisoners of war whom the Japanese planned to execute. Notably, all of these options also would have indirectly involved some “intentional killing of innocents,” including the naval blockade, which sought to starve the Japanese into submission. Hard as it may be to accept when one sees the visual evidence of the terrible destruction of Hiroshima and Nagasaki, Japanese losses probably would have been substantially greater without the A-bombs.

Moreover, the use of these awful weapons abruptly ended the death and suffering of innocent third parties throughout Asia. Rather surprisingly, the enormous wartime losses of the Chinese, Koreans, Filipinos, Vietnamese, and Javanese at the hands of the Japanese receive little attention in weighing the American effort to shock the Japanese into surrender. The losses in Hiroshima and Nagasaki were horrific, but they pale in comparison to the estimates of seventeen to twenty-four million deaths attributed to the Japanese’s hideous rampage from Manchuria to New Guinea. The thoughtful scholar Robert Newman explains that “the last months were in many ways the worst; starvation and disease aggravated the usual beatings, beheadings and battle deaths. It is plausible to hold that upwards of two-hundred-fifty thousand people, mostly Asian but some Westerners, would have died each month the Japanese Empire struggled in its death throes beyond July 1945.” Surely these persons also are “innocents” deserving of some concern in our moral calculations?

Bluntly put, the atomic bombs shortened the war, averted the need for a land invasion, saved countless more lives on both sides of the ghastly conflict than they cost, and brought to an end the Japanese brutalization of the conquered peoples of Asia.

Subsequent to their use, Harry Truman maintained that dropping the bombs had been necessary, having ended the war and saved numerous lives. This conviction, however, did not stave off his own serious moral qualms about the action. He never again spoke of the atomic bombs as military weapons to which the United States could make easy resort. He rightly indicated some retreat from his pre-Hiroshima view that the A-bomb was just another military weapon.

Some evidence suggests that Truman also worried that he had blood on his hands. In this, of course, he hardly stood alone among the participants in the enormous, ghastly struggle of World War II. Well over fifty million people lost their lives in that conflict, which descended to new lows of barbarism in both European and Pacific theaters. Restraints that previously had directed soldiers to spare non-combatants were thrown off as the Allies battled to defeat their powerful foes. As a number of writers have noted, a “moral Rubicon” had been crossed long before Hiroshima and Nagasaki. Indiscriminate bombing had become the norm for the Anglo-American forces well before 1945: Churchill and Roosevelt both approved the harsh endeavors to break the morale of their foes, which they hoped would ultimately secure victory and save lives. The devastating Tokyo fire-bombings took place on FDR’s watch, after all.

Surprisingly, however, in the moral assessments of the war, Churchill and FDR escape much of the condemnation heaped on Harry Truman for using the atomic bombs. Truman’s critics should refrain from putting him in some singular dock of history. They might instead carefully consider the responsibility of the Japanese government for its people’s fate. In moral terms, the Japanese leadership had a responsibility to surrender by June of 1945, when there existed no reasonable prospect of success and when their civilian population had suffered so greatly. Instead, the neo-samurai who led the Japanese military geared up with true banzai spirit to engage the whole population as combatants of sorts in a national kamikaze campaign. Their stupidity and perfidy in perpetrating and prolonging the war should not be ignored.

Of course, the question remains: Was it right? I suggest that, in retrospect and within the privacy of his heart, Truman likely understood that he had been forced by necessity to enter into evil. And so, I argue in my book, he had. He ordered the bombing of cities possessing significant military-industrial value, but in which thousands of noncombatants, among them the innocent elderly and the sick, women and children, were annihilated. Evaluated in isolation, each atomic bombing was a deeply immoral act deserving of condemnation. The fact that the bombings entailed the least harm of the available paths to victory, and that it brought an end to destruction, death, and casualties on an even more massive scale, cannot obviate their evil; it should, however, satisfy those who accept a utilitarian approach to morality, in which good ends can justify certain immoral means. I am not in that number.

Yet I remain sympathetic in evaluating Truman and his decision. He was a person who knew that the confusing fog of war sometimes places the policymaker in circumstances where he has neither a clear nor an easy “moral” option. Perhaps Truman had his A-bomb decision in mind when he wrote fifteen years later, in a discourse on decision-making (in his Mr. Citizen), that “sometimes you have a choice of evils, in which case you try to take the course that is likely to bring the least harm.” That is how his decision regarding the atomic bombs should be assessed.

From the perspective of over six decades, Truman’s use of the bomb, when viewed in the context of the long and terrible war, should be seen as his choosing the least evil of the options available to him. Admittedly, he did not weigh these options in a careful moral calculus at the time and proceed forward with that understanding, but fair-minded observers will see that he chose what he might have termed a necessary evil—the one that did the least harm. Henry L. Stimson had it exactly right when he wrote in 1947 that “the decision to use the atomic bomb was a decision that brought death to over a hundred thousand Japanese. No explanation can change that fact and I do not wish to gloss over it. But this deliberate, premeditated destruction was our least abhorrent choice.” “Abhorrent,” for sure, but it must be understood, the “least abhorrent” as well so as to bring the bloodshed to an end.

Truman, along with many others, has blood on his hands, but he also stopped the veritable flood of blood on all sides. The reality that he prevented much greater bloodshed must be acknowledged. So, too, it must be appreciated that, in choosing to employ the atomic bomb, he did not turn his back on some obvious and feasible “moral” course of action that would have secured a Japanese surrender.

It is when one turns to alternate courses of action that the abstract nature of Tollefsen’s criticisms becomes apparent. He criticizes Truman’s actions as immoral but offers no serious proposal regarding a viable alternative. Elizabeth Anscombe had naively suggested that Truman alter the terms of surrender, but such an approach only would have strengthened the hand of the Japanese militarists and confirmed their suicidal strategy. Tollefsen concedes that “it might well be true that greater suffering would have resulted from a refusal to use the atomic weapons in Japan,” but he backs away from any genuine discussion of what Truman should have done and of what that “greater suffering” might have involved. He provides no evidence that he has considered this matter at all. But should philosophers be able to avoid outlining what they would have done in the demanding circumstances that Truman confronted? I have always thought that moral reflection wrestles with the awful and painful realities. Tollefsen seems to want to stand above the fray, to pronounce Truman’s actions as deeply immoral and to leave it at that. It would have brought greater clarity to this discussion if he had confronted the alternatives seriously.

If Tollefsen were to engage the military issues involved in the war in the Pacific, I suspect he would be forced to raise further objections to the American military practices pursued well before the Enola Gay flew toward Hiroshima. Take as but one example the early 1945 Battle for Manila, in which approximately one hundred thousand Filipino civilians were killed. Some were killed by the Japanese, but many of this large number were killed by aggressive American air and artillery bombardments used, without particular regard for civilian casualties, as the American forces sought to dislodge an established enemy that refused to surrender. These harsh tactics could not meet Tollefsen’s criteria with regard to means. Given his unbending approach on moral absolutes, I assume he would condemn the action; but just what military means would he support in trying to defeat a foe that considered surrender the ultimate disgrace and who fought accordingly? Similarly, Tollefsen could hardly approve of the military force utilized in the taking of Okinawa and the high number of civilian casualties that resulted.

I suspect that Professor Tollefsen would be willing to say that it would be better to do absolutely nothing and to live with the consequences, if I may use that word, than to use morally questionable tactics. But the decision not to act undoubtedly would have incurred terrible consequences. Surely such inaction would carry some burden of responsibility for the prolongation of the killing of innocents throughout Asia, in the charnel house of the Japanese Empire. Is it really “moral” to stand aside, maintaining one’s supposed moral purity, while a vast slaughter is occurring at the rate of over two hundred thousand deaths a month? Isn’t there a terrible dilemma here, namely, which innocent lives to save? Would Tollefsen really have rested at peace with the long-term Japanese domination of Asia? Would that be a pro-life position?

Let me confess that I would prefer that my position had the clarity of Professor Tollefsen’s. It is a large concession to admit that Truman’s action was the “least evil.” Arguing that it was the least-harmful option open to him will hardly be persuasive to those who see everything in a sharp black-and-white focus. Yet this is how I see it. If someone can present to me a viable and more “moral way” to have defeated the Japanese and ended World War II, I will change my position. I suppose my position here has some resonance with my support for the policy of deterrence during the Cold War. I could recognize the moral flaws in the strategy but still I found it the best of the available options, and the alternatives were markedly worse. Interestingly, I think the author of Veritatis Splendor thought the same thing and he conveyed that view to the American bishops as they wrote their peace pastoral letter.

I trust that my pro-life credentials will not be questioned because I refuse to denounce Truman as a “mass-murderer.” Unlike Tollefsen, I do not think that my position initiates the unraveling of the entire pro-life garment. I believe Truman pursued the least-harmful course of action available to him to end a ghastly war, a course that resulted in the least loss of life.

In closing, let me admit that I hold Harry Truman in high regard for his efforts during the Cold War, of which I have written at some length. I endorse my friend Alonzo Hamby’s view that “Truman’s mobilization of the Western world against the Communist challenge” was an achievement “Churchillian in its significance.” He was certainly worthy of the Oxford degree that Elizabeth Anscombe sought to deny him.

Wilson D. Miscamble, C.S.C., is a priest in the Congregation of Holy Cross and professor of history at the University of Notre Dame.

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For most of Europe’s political establishment, the eurozone’s shrinkage or implosion would represent a severe setback for their particular vision of European unification. Some government leaders, such as France’s Nicolas Sarkozy, are consequently pushing for massive bond-market intervention by the European Central Bank. Others, most notably Germany’s Angela Merkel, favor an approach with even farther-reaching implications: renegotiating the Treaty of European Unification so as to provide for common fiscal governance. That would necessitate a significant diminution of eurozone members’ sovereignty.

However, should the apparently unthinkable happen and the common currency as we know it come to an end, European governments will have a once-in-a-lifetime opportunity to rethink the type of monetary order they wish to embrace. But this would involve widening the range of political choices about Europe’s future they are willing to contemplate.

One such scenario is a three-way monetary division within the EU that reflects the differing political commitments and economic priorities of different nations. Germany and the more fiscally responsible eurozone members such as Austria, Finland, and the Netherlands could, for instance, decide to reconcile themselves to being the only ones with the necessary fiscal and monetary discipline to maintain a common currency.

Alongside this bloc would be two other groups. One would consist of those EU countries such as Britain, Sweden, and Denmark that have maintained their own monetary systems because of reservations about the euro’s implications for national sovereignty. Another group would include EU nations such as Greece, Portugal, and Italy that are simply unable or unwilling to embrace the disciplined monetary and fiscal policies required by a common currency; these nations would consequently find themselves outside the eurozone and reverting to their national currencies.

A more radical monetary opportunity for a post-euro EU would be currency competition. This was once proposed by Britain’s Margaret Thatcher as an alternative to the present common currency. Contemporary proposals for currency competition, such as that advanced by Philip Booth and Alberto Mingardi, involve the monetary authorities of different countries authorizing the use of currencies alongside the euro in domestic settings other than their own. Consumer choice rather than state sovereignty would thus ultimately determine which currencies were used.

Yet another option would be the embrace of what might be called a European gold standard. In the 1950s and 1960s, the German economist Wilhelm Röpke argued that European monetary integration could occur via a nucleus of countries agreeing to adhere to a gold standard, much as had happened somewhat spontaneously in the nineteenth century through a process of unilateral decision-making by individual countries. Once this had occurred, adherents of such a gold standard would have to insist upon all members maintaining monetary discipline as well as freedom and stability in foreign exchange markets. Countries unable to adhere to these rules would not be admitted to the European gold club. Those who failed to abide by the club’s rules would simply be expelled. There would be no “once-in, never-out” policy.

There are European precedents for this type of monetary union. In 1865, for example, Italy, Switzerland, Belgium, and France agreed to fix their currencies to particular weights of gold and silver, and to allow their currencies to be freely interchangeable. Other countries such as Romania, San Marino, Greece, Spain, and Serbia gradually joined this group to form what became known as the Latin Monetary Union (LMU). Over time, the LMU moved in the direction of a de facto gold standard as silver came to be used less and less. The LMU, like the international gold standard, eventually crumbled as a consequence of World War I, though it formally lasted until 1927. Greece, interestingly enough, was expelled from the LMU in 1908 for debasing the gold in its currency.

Needless to say, none of the monetary options outlined above is likely to gain much support from contemporary European politicians. Partly, this reflects awareness of each option’s particular drawbacks. There is no such thing as the perfect monetary system. The ability of gold standards, for instance, to function as regulative monetary mechanisms traditionally has been impaired by the slowness with which the gold supply adjusts to real changes in demand. In political terms, these options also demand a discipline from governments that will not necessarily help their reelection chances.

But a more important, long-term reason for political resistance to adopting any of these post-euro possibilities is that each would mean that the days of European politicians’ using the process of monetary and fiscal harmonization as a vehicle to cement continent-wide political integration from the top down would be over. That would, in turn, require significant rethinking of the very meaning and character of European integration.

Here we see how a lack of political imagination about the EU’s future on the part of much of Europe’s political class limits their economic imagination when it comes to Europe’s monetary possibilities. All of the present fiscal governance measures being proposed by government leaders such as Chancellor Merkel assume that the most appropriate response to the present monetary crisis is the centralization of fiscal policy.

In one sense, that is the correct response, if Europe’s leaders want a single monetary policy managed by a central bank for economies as different as Greece and Germany. This assumes, however, that Europe’s political and economic integration must involve the gradual centralization of monetary and fiscal policies managed by supranational European institutions that, by definition, diminish national sovereignty in the name of harmonization.

But why, one may ask, must this be the case? Certainly, there are good reasons for a gradual political and economic integration of European countries. It is easy to dismiss some European politicians’ insistence that a eurozone breakup would eventually lead to war as alarmist and as a way for convinced dirigistes to avoid giving substantial answers to critical questions about the EU’s direction. We should not forget, however, that the modern European nation-state’s development has not proven to be an unmitigated blessing. When mixed with forces such as fascism, nationalism, and communism, the nation-state has provided a potent means for oppression, not to mention violent aggression against other Europeans.

Yet achieving an integration of nation-states through gradually embracing a centralized supranational European state brings with it all the problems of political and economic centralization on a much larger scale, not least among which is the likelihood of a steady diminution of political and economic liberty. Not long before his death in 1966, Röpke maintained this would be the logical trajectory of any such European entity that directed a centralized monetary policy and sought to implement top-down fiscal governance.

But Röpke also took a dim view of such policies because he believed that the subsequent centralizing tendencies of Europe would have deeply detrimental effects upon the genuine pluralism represented by the vision of l‘Europe des patries—an idea, Röpke noted, articulated by modern Europeans ranging from Montesquieu to Charles de Gaulle. This alternative idea of Europe, Röpke maintained, translated into a federalism that emphasized market freedom and competition across borders, and that precluded any kind of centralized European economic planning precisely because top-down fiscal governance was incompatible with a highly decentralized form of political integration.

From this standpoint, most contemporary European leaders’ responses to the continent’s currency and fiscal problems underscore just how much they have lost sight of one of Europe’s great strengths: genuine pluralism amidst the many commonalities that have linked Europeans for centuries, since long before the Treaty of Rome was signed in 1957. Indeed, the present EU habit of hammering together policies at the top before occasionally submitting them (almost as an afterthought) for ratification by national parliaments or popular referenda helps to fuel dislike of the entire integration process, not to mention the legitimacy crisis that increasingly confronts Europe’s political classes.

There is, however, an alternative: that the process of European integration be primarily driven from the bottom up. Here the focus of integration would shift away from politics. Instead the emphasis would be individuals and businesses trading with, competing against, and investing in each other across borders. Governments would primarily limit themselves to removing barriers to the free flow of persons, capital, and trade between nations. One example of what such integration might look like is the European Free Trade Association (EFTA). Created in 1960, EFTA’s attention has always been upon liberalization of the movement of persons, goods, and capital between its member-states. It has never tried to impose fiscal, social, or monetary policies upon its members.

Of course, if the EU moved in such a direction, it would mean a much smaller role for European politicians and bureaucrats. It would also run contrary to their deeply ingrained dirigiste instincts. Nonetheless, it would allow for an escape from the pattern of one-size-fits-all approaches that tend to diminish the space for political and economic experimentation throughout today’s EU. In this respect, a willingness to explore post-euro monetary options that break away from the hitherto dominant European trend toward top-down centralization of monetary and fiscal policy would be a step in the right direction.

Samuel Gregg is Research Director at the Acton Institute. He has authored several books including On Ordered Liberty, his prize-winning The Commercial Society, Wilhelm Röpke’s Political Economy, and his 2012 forthcoming Becoming Europe: Economic Decline, Culture, and America’s Future.

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By a vote of 8–1, the Court held that the First Amendment’s Free Speech Clause protects religious speech and association by private speakers and groups, just as it protects speech by any other speakers on any other subject, and that the Establishment Clause does not authorize discriminatory exclusion of religious speech.

This was a signal ruling. The free-speech holding was hardly new to Widmar—many of the Court’s great free-speech cases of the 1930s, 1940s, and 1950s involved religious expression—but the Widmar case framed the issue clearly and stated the rule simply. The decision came at a moment in the Court’s history when the principle of free religious speech had become endangered by the encroachment of overreaching claims of church-state “separation,” claims that many took to suggest that religion must be affirmatively excluded from the public sphere and from public discourse. Certainly UMKC (and its lawyers) thought that religious speech, by private parties, must be kept off university grounds. Separation of church and state required exclusion of religious speech, they supposed. UMKC’s posture was not so much one of hostility to religion as one of ignorance about the First Amendment—though the consequence was much the same.

Widmar marked a decisive turning point. Of course, the disposition to suppress private religious expression—to exclude, to hamper, to discriminate—persists even today. But Widmar (with its many successor cases) stands firmly in the way of the view that such suppression is in any way justified, let alone required, by the Constitution. Widmar repudiated such First Amendment ignorance.

Here is what the Court held in Widmar: Freedom of speech forbids government from prohibiting, punishing, or penalizing speech based on its content. This was already an oft-stated principle. The Free Speech Clause of the First Amendment thus forbids government from excluding religious speakers and groups from forums for expression—or from any other benefit—on account of the religious content of their expression or the religious nature of their views or association. Furthermore, the Court went on to hold, the Establishment Clause of the First Amendment, so often unthinkingly invoked to wall off religion from the public sphere, emphatically does not authorize or justify discriminatory exclusion of private religious speakers and groups from public forums for expression, or from other public benefits.

While there are many important cases in the Supreme Court’s First Amendment oeuvre, none in the last thirty years captures as succinctly and correctly as Widmar so many basic, important principles of the freedom of speech and, by implication, the American freedom of religion generally. Few principles of the freedom of speech are more foundational or of greater practical importance to religious liberty than the proposition that religious speech is as fully protected as speech on any other subject: Religious speech, association, or identity can no more serve as the basis of exclusion from a public forum or a public benefit than can any other viewpoint or affiliation. Religious freedom might mean more but cannot mean less than full and equal inclusion in the public sphere and the right to share in First Amendment freedoms of expression and association.

Widmar’s free-speech holding is thus fundamental to the freedom of religion. It is the basis for the right of evangelism: Freedom of religious expression, and the equal status of religious ideas, keep government from suppressing religious discourse and debate. And Widmar’s free-speech principle is closely allied with the freedom to exercise one’s religious convictions in society generally: It is the principle that proclaims the equal status of religious views, religious arguments, religiously motivated actions, religious associations, and religious identity in American public life. Freedom of religion means, at bedrock, the right of religious persons, groups, and ideas to participate fully and equally in the life of the community and in the marketplace of ideas.

Nearly as important as Widmar’s embrace of the affirmative right to religious expression is its rejection of the mischievous notion that the Establishment Clause, which forbids government “establishment of religion,” somehow mandates, or justifies, government discrimination against religion. The Establishment Clause’s original meaning was to forbid official coercion in matters of religion, whether by direct state compulsion or by conditioning benefits or privileges on a citizen’s engaging in religious conduct favored by government. (That is the principle that makes the Court’s decisions of the 1960s striking down public-school official prayer exercises correct: Such practices employ the coercive machinery of the state to get schoolchildren to pray the government’s prayer.)

Unfortunately, a series of cases in the 1970s involving various state government programs of direct aid to private, parochial religious schools led the Court to devise a confusing “three-pronged test” intended to identify improper government sponsorship of religion. Like so many judicial interpolations into the constitutional text, however, the “Lemon test,” named for the 1971 case of Lemon v. Kurtzman that first used it, led the Court far astray. Soon, the Court’s decisions had transformed the Establishment Clause from a rule forbidding government coercion of religious practice into something approaching a rule requiring government exclusion of religion from the public square or from generally available benefits.

Widmar rejected such an understanding. Although the eight-member majority worked within the framework of the ‘70s’ Lemon test, it made clear that a policy of equal inclusion of religion does not violate the Establishment Clause. Equal inclusion has neither the purpose nor the effect of special state promotion of religion. It also avoids church-state tangles: A rule that required government to ferret out and exclude religious expression not only would violate core free-speech principles—Widmar’s free-speech holding—but also would entangle government terribly in matters of religion, in violation of religious freedom principles of church-state separation.

Widmar thus broke the Establishment Clause logjam that had become a barrier to true religious freedom. The former skewed thinking—that separation required discrimination—began to give way. Much as Brown v. Board of Education had broken the back of separate-but-equal state racial segregation a generation earlier, Widmar broke the back of separate-and-unequal official religious discrimination. Within a few years of Widmar, the Court held that tax arrangements providing neutral aid to families choosing private religious schools, rather than direct aid to the schools themselves, posed no special problem under the Establishment Clause (Mueller v. Allen, 1983). Decisions followed rejecting the idea that the Establishment Clause forbade vocational education benefit programs from being used for religious education (Witters v. Washington Department of Services for the Blind, 1986), or that disability services or remedial education could not be provided to children attending religious schools (Zobrest v. Catalina Foothills, 1993; Agostini v. Felton, 1997).

Widmar’s “equal access” rule was enacted by Congress in 1984 as a requirement for public secondary schools receiving federal financial assistance, in the important “Equal Access Act,” and was upheld by the Supreme Court against Establishment Clause challenges (Westside Board of Education v. Mergens, 1990): this means that high-school and middle-school religious student groups may form and meet on public school premises. The Court likewise applied the rule of Widmar to religious groups seeking to use or rent public-school building facilities after hours or on weekends, on an equal basis with other community groups (Lamb’s Chapel v. Center Moriches Union Free School District, 1993), and to after-hours religious clubs for children at elementary schools (Good News Club v. Milford Union Free School District, 2001). Religious worship, religious expression, and even child evangelism programs could take place on public school grounds, under equal-access principles.

In a dramatic and important extension of Widmar, the Court in 1995 held that student religious groups at state universities were entitled to equal access to student-activities funding by the university and that the Establishment Clause posed no barrier to such equal access. Thus, the University of Virginia was forbidden from denying funding to an evangelistic Christian student newspaper simply because of its religious content and viewpoint (Rosenberger v. Rector and Visitors of University of Virginia, 1995). Funding, the Court held, could be every bit as much a “forum,” from which student religious groups could not be excluded based on the content of their expression, as access to use of university buildings for religious meetings, worship, prayer, and Bible study. Given Rosenberger, it became a cinch that school-choice “voucher” plans that allowed parents to choose religious schools would be upheld against Establishment Clause challenge; and they were, in Zelman v. Simmons-Harris, in 2002. Widmar’s principle—that neutral inclusion does not violate the Establishment Clause—controlled.

These are significant results, with hugely positive consequences for religious freedom and equality in American public life. They would have been unthinkable had Widmar gone the other way, thirty years ago.

Of course, there has been some backsliding through isolated decisions in tension with Widmar’s reasoning. For example, Locke v. Davey (2004) held, somewhat bizarrely, that a state scholarship program to help lower-income, high-performing high-school students attend public or private college could exclude students choosing programs in theology. The Court emphasized, consistent with Widmar—and with Witters, Zobrest, and Rosenberger—that such exclusion was in no way constitutionally required.  Yet Locke’s  holding that such exclusion is permitted is hard to square with Widmar and cases following it.  More recently, and even more bizarrely, the Court in Christian Legal Society v. Martinez (2010) held that a state university could insist that student religious groups not have religious-belief requirements for their members and leaders. Taken seriously, Martinez is hard to square with Widmar’s premise that religious groups may not be discriminated against because of their religious nature.

But given Widmar, these isolated decisions ought not have legs. Locke v. Davey now appears to be a blip or a hiccup, limited to its facts and (one hopes) destined to be overruled in a proper case. And CLS v. Martinez may be limited to its oddly hypothetical, unreal stipulated facts (insisting that all student groups allow all people—regardless of whether they share the aims of the group—access to leadership roles).

Despite exceptions and odd departures, Widmar states the bedrock rules: The Free Speech Clause forbids government from excluding or discriminating against private parties’ religious expression because of its religious content. The Establishment Clause does not authorize or justify such discrimination, ever. Where government has provided a program or a benefit on a general basis, it may not exclude religious persons or groups on the basis of their religious expression or identity. It is hard to think of a better, more succinct statement of the essentials of religious freedom.

Michael Stokes Paulsen is University Chair and Professor of Law at the University of St. Thomas, in Minneapolis, and co-director of its Pro-Life Advocacy Center (PLACE).

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Yet it is making some headway. To understand this, is it necessary to grasp how myriad family law developments over the last forty to fifty years have ignored or minimized children’s interests, thus paving the way for the arguments same-sex marriage proponents advance today. For example, as against the idea that marriage and child well-being go together, state laws approving no-fault divorce and normalizing cohabitation (by enforcing cohabitation agreements) do not take children’s presence in a household into consideration at all. Rather, they allow more and more children to be reared outside of households containing their married, biological parents. They also expose more children to instability in living arrangements, and to stepparents and new boyfriends, each of which is, on average, correlated with increased risks to children’s safety and to their emotional and educational achievement.

Against the notion that marriage is the place where society is born and formed, federal constitutional law concerning birth control and abortion from the 1970s through the 1990s stridently instructed us that decisions about procreation are about the individual, not the married couple and not the child. In the 1972 “birth control for singles” case, Eisenstadt v. Baird, the Court bluntly opined that “the marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” In the 1992 Planned Parenthood v. Casey abortion decision, the Court went even further, declaring that the liberty interest in deciding to abort one’s own child is, at its core, a matter of “defin[ing] one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”

Finally, against the idea that parental rights are derivative of parental duties to children, there are not only the counter-examples of no-fault divorce laws and the legal right to abortion, but also the fact that neither state nor federal law meaningfully regulates adults’ access to assisted reproductive technologies, including to donor gametes, deferring completely to adult desires for children versus children’s need to know and be loved by their own mother and father.

A look at the legislative transcripts or the judicial opinions or other sources that brought each of these legal regimes into being indicates how little children’s fates were considered from the very start. The legislative hearings leading to no-fault divorce, for example, are replete with references to children’s resiliency, or how the facilitating of their parents’ wishes for a divorce will indirectly lead to children’s happiness.[1] The California Supreme Court opinion that started the ball rolling toward many states’ recognizing and enforcing cohabitation agreements (Marvin v. Marvin, 1976) paid no attention to the possible effects upon children of the greater normalization of cohabitation. Some of the most popular assisted-reproductive technologies were not even tested on animals before being used to create thousands upon thousands of human children. And of course, nothing could have been further from the minds of the judges who gave us Roe and Casey than the well-being of the child on the other end of the abortion instruments.

Given this history, it should surprise no one that in the most recent family law controversy implicating children’s well-being, same-sex marriage proponents have devoted so little attention to the question of children. It shouldn’t surprise us when the Iowa Supreme Court relegates to a footnote its assurances that children will do just as well with a father or a mother as without one (Varnum v. Brien, 2009), or when that California district court opinion in the Proposition 8 case (Perry v. Schwarzenegger, 2010) concludes that opposite-sex marriage is merely an “artifact” of pernicious sex-role discrimination within marriage and society, a discrimination that is now passé. It should sound perfectly mainstream when members of the Massachusetts legislature (before refusing to allow citizens the right to vote on same-sex marriage) called marriage a “right” that “individuals” have, a matter allowing people to love one another, or of “guarantee[ing] the greatest amount of happiness to the most people.”[2]

Are these conclusions about marriage the inevitable follow-up to lawmakers’ recent dissociating of marriage and child-rearing? What about the vastly different concerns featured in over a century of Supreme Court opinions linking the state’s interest in marriage to children and their formation? There are several possible responses. Technically speaking, of course, the Court’s decisions from Reynolds to Lehr have not been overturned; they remain good law. But proponents of same-sex marriage could argue that the language in these cases linking marriage with parenting is dicta—i.e., not essential to their holdings—or even merely historically conditioned expressions of a moral sensibility bearing no relation to our current age. Maybe. Maybe today’s Supreme Court would accede to such a characterization. After all, look at its opinion (albeit over a stinging dissent) in Lawrence v. Texas (2003) granting constitutional status to sodomy, in response to perceived current trends here and abroad.

In light of the mode of reasoning adopted in Lawrence, then, those loath to see marriage and children divorced from one another would be wise to adopt an additional strategy. They should argue that the Supreme Court was more right than it even knew during the past two centuries, when it identified the state’s interest in marriage as children and their formation. In fact, today, more than ever before, we have a substantial body of literature linking children’s—and communities’—flourishing with the stable presence within a family of married, biological parents. Two additional developments also argue for reappropriating and reinvigorating Supreme Court precedents on marriage, rather than moving in the direction suggested by the last few decades’ retreat from child-centered marriage.

First, the most vulnerable members of society appear to be paying the highest price for this retreat. African Americans, Hispanics (our newest large immigrant group), the poor, and the less educated are suffering the most notable financial, emotional, and educational fallout. They now marry less, cohabit more, bear more children out of wedlock, and divorce more often than more privileged citizens, with the result that their children, and perhaps even their grandchildren, risk becoming part of an entrenched underclass in American society. To allow this to continue is to risk the rise of the perception that Americans are different from one another at very basic levels—in our fundamental needs for permanent and faithful love, for support when we are very young or very old, for harmony between the sexes and the generations. This is a very dangerous kind of separation between fellow citizens and human beings.

Second, it should be pointed out that the family law developments of the last forty to fifty years, described above, often proceeded on the claim that children would ultimately benefit from each of them. In other words, even those who were busy effectively dismantling family law’s orientation to children’s well-being were not deaf to the tradition embodied in the Supreme Court’s marriage and procreation cases. Rather, they argued that children would be happier when their parents were happier—because their parents were getting a divorce, or cohabiting, or living in whatever arrangement they chose. They argued that children would be happier if “wanted,” and what could be more wanted than a very planned, well-timed child, or even a “designed” child? They argued that cohabitation should lead to more stable marriages.

Now that each of these claims has been disproved, or at least called into serious question by respected research, there are proposals—for the first time in a very long time—to reform various family laws in order once again to take account of children. More scholars are proposing and more states are considering requiring sperm donors to provide information allowing their biological children to find out more about them. There are active efforts to promote legislation to slow down the divorce process, especially for parents of minor children. Scholarship about the dangers posed to children by cohabitation is gaining a national audience. In short, current reform efforts provide an additional reason to refuse to deem the last half-century of family law “progress,” let alone to take their “adults-first” or “adults-only” rallying cry any further, to its logical conclusion in same-sex marriage.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This is the second in a two-part series. Read the first installment here.

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[2] See, supra, Helen M. Alvaré, “The Turn Toward the Self in the Law of Marriage,” 174-176 and notes therein.

Those who champion marriage between a man and a woman would like to see the Supreme Court settle the matter according to a long series of precedents treating procreation and child-rearing as primary state-recognized goods of marriage. But given that one ought to be realistic about judicial willingness today to ignore precedent in favor of some perceived zeitgeist, an additional strategy to preserve the link between marriage and children in the Court’s reasoning is warranted.

This strategy would show, first, how the path of divorcing marriage from children—a path taken to its logical end by same-sex marriage—not only disadvantages children, but is already helping to effect troubling social divisions between the more and less privileged in the United States. The persistence of such divisions could begin to suggest, falsely, that the well-off and the poor, the more educated and the less educated, the majority and various minorities, do not share the same fundamental nature where marriage and parenting are concerned. Second, such a strategy would highlight the relatively recent willingness among scholars and lawmakers to come to grips with the fallout of “disestablishing” the interrelated goods of marriage and effective parenting, and to begin proposing reforms. This is not the time, therefore, to ignore or deny the robust empirical foundations of such reform efforts, via legally redefining “marriage” to exclude its intrinsic orientation to children. A brief look at our Supreme Court’s longstanding positions on the meaning of marriage (in this first of a two-part series), followed by a look at the whirlwind of family law developments from the 1970s to today (in the second part), will suffice to sketch the argument I am proposing.

A preliminary note: It is important to understand that family law is made in large part at the state level and, regarding marriage, consists not in lengthy disquisitions on the meaning of marriage, but rather in brief lists of the necessary preconditions for entering into it. States’ lists are similar. To enter marriage, there must be two persons: of opposite sexes (in the vast majority of states), of sufficient age, not related within prohibited degrees of consanguinity, free to marry, capable of marital consent, etc. On the one hand, state laws conditioning entry into marriage are fairly laissez-faire. On the other hand, all states signal the importance of marriage by refusing to acknowledge purely “private contracts” to marry. Rather, the state imposes terms upon marrying couples—a set of mutual rights and obligations with which they are not even likely familiar. Even when couples make prenuptial agreements, the state constrains their contents in the interests of fairness to the adults and solicitude for children.

The federal government tends to “make family law” when it feels threatened by developments in the states. Increasing rates of nonmarital births in the 1970s and 1980s, for example, and the resulting astronomical federal welfare expenditures, led to a series of federal child support laws, programs about preventing premarital sex and pregnancy, and later initiatives encouraging stable marriage and fatherhood. The latter, in particular, were grounded upon the growing body of data linking marriage with child well-being. The Defense of Marriage Act in the 1990s sprang from fears that one state’s approval of same-sex marriage would lead to demands for interstate and federal same-sex marriage recognition. For the most part, however, federal “characterizations” of the meaning and importance of marriage appear most often in a long series of Supreme Court cases concerning the constitutionality of various state laws affecting marriage or parent-child relationships. While a complete history of these rulings is not possible here, I will characterize their leading messages.

The first message, and the most plain, coming from the Supreme Court concerns the relationship between marriage and the birth of children. While it is impossible to disentangle completely this state interest from its interest in the healthy formation of children within marriage, still it is possible to discern it. In a late nineteenth-century case refusing to recognize a First Amendment right to practice polygamy, for example, the Court wrote that: “Upon [marriage] society may be said to be built” (Reynolds v. United States). Nearly 100 years later, in a case striking down a law banning interracial marriage (Loving v. Virginia), the Court referred to marriage as “one of the ‘basic civil rights of man,’ fundamental to our very existence and survival.”

In several cases from the late nineteenth century to 1967, the Supreme Court revealed in a different fashion its understanding of the link between marriage and children: in cases where only a right to marry was at stake, or only a right respecting childrearing, the Court would nevertheless speak of the two interests as a pair. The plaintiffs in Loving asserted a right to marry as against antimiscegenation laws, and still the Court referred to marriage as necessary for “our very existence and survival.” Skinner v. Oklahoma concerned a law punishing certain felons with forced sterilization, but the opinion spoke of “marriage and procreation” as basic rights. In Meyer v. Nebraska, the case vindicating parents’ constitutional right to instruct their children in a foreign language, the Court referred to citizens’ rights “to marry, establish a home and bring up children.”

The state’s interest in linking procreation with marriage is also shown by the history of laws discouraging sexual intimacy and procreation between the unmarried, while protecting it between the married. Today, laws punishing adultery, fornication, or cohabitation rarely exist or are enforced. Still, even in the 1965 Supreme Court decision granting married persons the constitutional right to access birth control, a concurring opinion could observe: “It should be said of the Court’s holding today that it in no way interferes with a State’s proper regulation of sexual promiscuity or misconduct. . . . But the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected” (Griswold v. Connecticut).

A second prominent theme in the Supreme Court’s marriage jurisprudence is the importance of the marital family for forming and educating the citizens necessary for the continuation of our democratic society. In the 1879 polygamy opinion Reynolds, for example, the Supreme Court opined:

For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, … than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement.

The Reynolds case also contains a less frequently noted observation linking the shape of marriage and the shape of society: “According as monogamous or polygamous marriages are allowed, do we find the principles on which the government of the people, to a greater or less extent, rests. … Polygamy leads to the patriarchal principle, and, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy.”

In 1943, in Prince v. Massachusetts, the Court not only affirmed parents’ authority over their children within reasonable limits (here, obedience to labor laws), but more importantly for our purposes, characterized their authority as a function of their responsibilities to children and to society, writing: “A democratic society rests, for its continuance, upon the healthy well-rounded growth of young people into full maturity as citizens, with all that implies.” An even more pointed expression of the economy of adults’ rights respecting children appeared in the case vindicating parents’ constitutional right to educate their children in religious schools. Nearly echoing John Locke’s observation in his Second Treatise on Government—“The Power, then, that Parents have over their Children, arises from that Duty which is incumbent on them, to take care of their Offspring”—the Supreme Court wrote in Pierce v. Society of Sisters that “The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

As recently as 1983, in the single father’s rights case Lehr v. Robertson, the Court even more explicitly stated that “the Court has emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” It furthermore linked marriage and marital parenting with facilitating citizens’ ability to self-govern. Refusing to treat a single father identically to a married father in terms of rights respecting the child, it wrote that “marriage has played a critical role … in developing the decentralized structure of our democratic society. In recognition of that role, and as part of their general overarching concern for serving the best interests of children, state laws almost universally express an appropriate preference for the formal family.”

In sum, our Supreme Court has time and time again, and in an axiomatic fashion, expressed the state’s interests in marriage as: children, their formation, and the building up of a society of citizens well-prepared for self-government. In the process of recognizing various rights claimed by parents respecting their children, the Court has further observed that to the extent parents have such rights, it is because they have duties toward children. Those who demand that the state recognize, as marriage, partnerships of two persons of the same sex, ignore or deny the long line of Supreme Court decisions affirming the links between the state’s interests in marriage and child-welfare and social health. Their insistence, however, that marriage is about the individual self, seeking satisfaction respecting matters related to sex, romance, and parenting, is not new to family law. Same-sex marriage proponents are only the most recent in a long line of voices urging American society to divorce children from marriage, and to vault adults’ interests over children’s needs. The second part of this article will treat this trajectory in family law.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute. This is the first in a two-part series. Read the second installment here.

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Yet judges and legal scholars rarely agree on what was the original meaning, understanding, or intent of controversial clauses of the Constitution. Perhaps no better example of this dispute exists than the slew of literature about the First Amendment’s establishment clause. Since the late 1940s, its ten words—”Congress shall make no law respecting an establishment of religion”—have probably been subjected to more detailed scrutiny and analysis than any other provision of the original ten amendments.

A number of different schools of interpretation have emerged since the 1940s, with the different schools usually more reflective of the differing policy preferences of their members than the kinds of genuine scholarly disputes that arise among philologists or classical scholars when disagreement emerges over the meaning of an ancient text. In the field of constitutional interpretation, ideology-driven conclusions are the norm, not the exception, and this is true even though the dispute under consideration may concern what seems to be the neutral assessment of the historical meaning of a dryly worded legal text. Too much is usually riding on the outcome in terms of current policy controversies for most constitutional scholars to display the disinterested cool and objectivity of, say, a Latin scholar interpreting the provisions of an ancient Roman law.

An exception to this ideology-driven, result-oriented historical scholarship is Donald Drakeman’s newest book, Church, State, and Original Intent. Indeed, this book may be the most honest, most comprehensive, most nuanced, and most illuminating scholarly study now available of what those ten words of the Establishment Clause probably meant to the many different Americans in 1789–1791 who would have read them. Drakeman has no obvious ideological or public policy agenda, and even the most discerning reader will be hard put to tell where he stands on the more controversial issues of the day regarding church-state relations. Drakeman clearly delivers on his promise in the book’s Preface to provide “an as-objective-as-possible analysis” of the history and original meaning of the Establishment Clause.

Drakeman first reviews the three most prominent ways of interpreting the Establishment Clause, most of which developed after the 1947 Everson decision that upheld amidst vigorous dissent state-subsidized bus transportation for parochial school students.

The strict separationist view is the first of these interpretations. Supporters of this view, including most Supreme Court justices, hold up Thomas Jefferson’s metaphor of a “wall of separation” between church and state. Strict separationists generally believe that the First Amendment’s establishment ban prohibits government not only from establishing a church or favoring one religion over another, but from favoring religion over non-religion, conducting prayer exercises or Bible readings in the public schools, sponsoring religious invocations at public-school sporting events, displaying religious symbols such as the Christian cross or nativity scenes on government property, opening legislative sessions with a prayer, giving school vouchers that go to students attending religious schools, or using the “In God We Trust” slogan on our currency or the “under God” declaration in the Pledge of Allegiance recited in public schools. On the strict separationist view, all of these prohibitions carry over to state governments through the Fourteenth Amendment’s Due Process Clause.

The second of these views, and the most forceful challenge to the strict separationists, comes from the non-preferentialists, a group that includes Justices Antonin Scalia and William Rehnquist and legal scholars such as Gerard V. Bradley. Non-preferentialists believe that the Establishment Clause aimed only (1) to prohibit the national government from establishing a single denominational church as the official church of the United States, and (2) to prohibit the favoring of one religion or religious sect over another. But the no-sect-preference principle, non-preferentialists say, was not designed to stop government support of religion over non-religion, or to stop the government from supporting piety, religiosity, and religiously grounded morality among the American people, as long as support was given on a sect-neutral basis. While the original understanding of the no-sect-preference principle was probably meant only to cover Christian sects (i.e., Christianity could be favored over Hinduism, Judaism, or Islam), today’s non-preferentialists generally extend their no-preference principle to all religions, Christian as well as non-Christian. Government can support religion and religious belief over its absence, they say, but not one religion or religious sect over another.

Finally, the jurisdictional or federalism-enhancing view, supported somewhat by Supreme Court Justice Clarence Thomas and legal scholars such as Robert P. George and Steven D. Smith, argues that the Establishment Clause was, in Smith’s words, “simply an assignment of jurisdiction over matters of religion to the states—no more, no less.” At the time of the adoption of the First Amendment, jurisdictionalists point out, several of the states (for example, Connecticut, Massachusetts, and New Hampshire) had state and local church-state arrangements that many would call “establishments of religion.” The Establishment Clause should be understood, then, as an attempt both to (1) prohibit such an establishment at the national level, and (2) offer protection of each state’s right to maintain such an establishment within its own borders. A major purpose of the Establishment Clause, say the jurisdictionalists, was to protect a state’s prerogative to establish a religion or support religion in any way it chose, whether preferentially or non-preferentially.

Drakeman rejects the conclusions of all three interpretations, at least insofar as they claim to explicate the original meaning or intent of the Establishment Clause. The strict separationists, Drakeman says, have tried to read the clause as the result of Madison’s and Jefferson’s efforts to determine the proper church-state relationship for their home state of Virginia under the Articles of Confederation. But their views, Drakeman argues, hardly can be equated with those of the nation as a whole, of the majority of the representatives and senators who passed the first ten amendments, or of the majority of state legislators who voted to ratify the Bill of Rights. Moreover, whatever was considered the proper course for their home state of Virginia, neither Jefferson nor Madison, Drakeman shows, believed that the national government should dictate to the states their proper manner of church-state relationship.

Against non-preferentialism Drakeman’s critique is a bit more restrained. It’s not that non-preferentialists read into the Establishment Clause what clearly isn’t there, or that they take a local state battle to be paradigmatic for a non-existent national dispute, but that they fail to realize that the term “establishment of religion” meant different things to different people and had a wider range of meanings across the American public spectrum than simply an established state church such as the Anglican Church in England.

Against the jurisdictionalists Drakeman offers a partial concession. It is undoubtedly true, he says, that those who passed and ratified the Bill of Rights in the 1789–1791 period would have understood the no-national-religion principle embodied in the First Amendment to be part of the overall constitutional structure of federalism whereby states would be free to set their own policies regarding church-state relationships even if the national government were more restricted in this area. Drakeman calls this “plain vanilla federalism.” He distinguishes this from the “federalism-enhancing federalism” of the jurisdictionalists who see a specific intent on the part of supporters of the Establishment Clause in states such as Connecticut and Massachusetts (which had state establishments) to protect their state establishments from outside national interference. The clause is seen by the jurisdictionalists as deliberately intended to create an extra layer of federalism protection to secure existing state religious establishments against national encroachment.

The major weakness with the jurisdictionalist interpretation, Drakeman says, is that there is no evidence for it. No one in the 1790s thought the national government would interfere with state church-state relationships, he says, so it is not surprising that no one known to us today ever expressed support for the Establishment Clause in the way the jurisdictionalists or federalism-enhancing interpreters of the clause assert.

Drakeman’s own interpretation of the clause is minimalist:

While some aspects of the evidence can be employed to support each of the various conventional interpretations [of the Establishment Clause], the only reading of the clause that is persuasively supported by all of the relevant data shows that its original meaning was to forbid the establishment of a single national religion. It is unclear whether such prohibitions only applied to an entity like the Church of England or whether more ecumenical forms of governmental financial aid might also have been included within the original meaning of the phrase “an establishment of religion.” On this latter point, the record is (and probably always will be) too murky to tell for sure.

Drakeman’s book is indispensable reading for anyone interested in church-state relations in the American constitutional order. It is constitutional analysis at the highest level of informed scholarship and is written with an openness and humanity that jump out from every page. Nevertheless, Drakeman fails to do full justice to those who see a crucial difference between the no-national-religion principle of the First Amendment and the five personal freedoms (speech, press, assembly, petition, and religious worship) guaranteed by that amendment against usurpation by the national government. Drakeman can argue, correctly, that the five personal freedoms enumerated in the First Amendment were intended just as much to be part of the federalism structure of the government created under the Constitution as the Establishment Clause insofar as the prohibition on their restriction was intended to apply only to government action at the national level, not the state level. States under the pre-incorporated First Amendment were just as free, under the confines of their own constitutions, to limit freedoms of speech, press, assembly, petition, and religious worship as they were free to establish a church and tax their inhabitants to support it. Drakeman seems to take this to mean that the difficulties under originalist jurisprudence of incorporating these five First Amendment freedoms under the liberty provision of the Fourteenth Amendment’s Due Process Clause—and applying them to cover government action by the several states as well as the national government—are no less than those of incorporating the Establishment Clause. Since the courts have seen no problem in overriding the original federalism structure in relation to five of the six provisions of the First Amendment, Drakeman’s reasoning seems to be, why not with the sixth as well?

I think there are two problems here. First there is the problem that the non-establishment principle is not what usually would be thought of as a “liberty” under the meaning of the Fourteenth Amendment’s Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). It is a collective non-endorsement principle more than a personal liberty principle. But aside from this difficulty (which some would get around by simply reformulating and restating the non-establishment principle in a personal-liberty-enhancing way), there is the fact that in the 1790s most Americans would have seen the rights of free speech, free assembly, freedom of the press, freedom to petition the government, and freedom of religious worship as universal natural rights—or at least the rights of adult American white males—whereas very few would have understood there being any general or natural right of this kind to live in a state or a nation which did not officially endorse one religion over another or all religions neutrally. Even if it is true that the First Amendment left it up to the states to protect their citizens from serious state and local usurpations of the freedoms of speech, assembly, press, petition, and worship, it was almost universally believed in the 1790s that such usurpations were grievous wrongs and violations of basic rights. There clearly was no such consensus, however, against a state establishing a religion, preferring one religion over another, or subsidizing all religions on a no-sect-preference basis. The latter were not seen by most Americans (with important regional exceptions) as grave usurpations of fundamental personal liberties or natural human rights. Hence they do not fit easily into the Fourteenth Amendment’s understanding of hallowed constitutional liberties that must not be infringed upon by government at any level.

There really do seem to be serious problems, then, even if we read the First Amendment through the lens of “plain vanilla” federalism rather than the more supercharged “enhanced” variety, with incorporating the non-establishment principle under any reasonable reading of the word “liberty” in the Fourteenth Amendment, and this issue touches the one area where Drakeman’s otherwise magnificent work falls short. On “original meaning” grounds, the jurisdictionalists, I believe—even the plain-vanilla variety—have a stronger case than he supposes.

Russell Nieli is a lecturer in Politics at Princeton University.

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That startling assertion sheds light, I believe, on the abandonment or collapse of both community and solitude in our time. It warrants some explanation. Maritain notes, with Aristotle, that man is by nature a political animal, a being who thrives best in the context of a self-governing polis. This is not simply because man needs the assistance of others to provide for something better than mere subsistence—that he needs carpenters, masons, farmers, and so forth. It is also because he is made for friendship. He is meant to rejoice not so much in a private good, like a mansion with a tall hedge around it, but in those things that bind him in love with others. For Aristotle, the polis is the arena for our practice both of the practical virtues—prudence in educating our children, for example, or courage in defending our homes against enemies abroad—and of the intellectual virtues. The deepest friendships are forged when we share with others the truths we have beheld. With respect to this view of man, the pagan philosophers and the Christian theologians and contemplatives were at one.

In earlier times, even when a man seemed to have left the community behind, to retire in solitude to the desert, as did Anthony of Egypt, he was not abandoning social life so much as incorporating it into a way of life that transcends the social. So Maritain cites Thomas Aquinas, who argues that although the solitary contemplative, unlike almost all other men, has attained to a kind of self-sufficiency, his condition presupposes long exercise in virtues he could not have attained “without the help of the society of his fellow beings—with respect to the intelligence, to be taught; with respect to the heart, that harmful affections be repressed by the example and correction of others.” That is why, Maritain says, the ancient Christians used to drag the hermits from the desert to be their bishops. They were the ones who knew best the social and the individual good of man.

Whether that assessment was correct in every case is not the point. I mean rather to ask what happens when the conditions and assumptions that made the assessment possible no longer obtain: when self-government has been absorbed into the machinery of a vast, impersonal state, whose acts and ends are evaluated quantitatively according to a model of industrial efficiency (or inefficiency), and when people are taught that there is no objective moral or metaphysical truth, and no beauty of being, to provide the objects of contemplation. If solitude is the flower of life in community, then perhaps we may say, turning the equation inside out, that the terminus of a life that knows no contemplation, no higher good than the efficient pursuit of quantifiable objects, is isolation.

Here we need not consider the sadness at the heart of pleasure seeking—the profound loneliness that settles upon young people drinking at a party when there is nothing to celebrate, as they warily circle about one another, checking one another out, reckoning and being reckoned. It should be obvious that what is quantifiable is by its very nature finite and therefore—since man is never satisfied by the finite—felt as scarce. Thus the pursuit of such fleeting goods, as if they were the highest ends to which man can attain, is necessarily divisive. Here I mean more than that people compete for eminence in them. I mean that there is nothing in them that unites us; they presuppose that we are not meant for one another in love, but that at best we can get along beside one another, sometimes pursuing a pleasure we have in common, but otherwise acknowledging that people themselves are to be valued only according as they assist us in our own pursuits. And when their condition is such that they cannot do so—a child starving in Somalia, or a grandmother with a disintegrated mind—then we subject them to the merciless calculus of our utilitarian world. We tacitly say, “It will be better, all told, if they were to die quietly,” meaning that it will be more convenient for us, less of a reproach to our lives.

“No man is an island,” wrote Donne, but now we are all islands. That is the meaning of the word isolation—which has nothing to do, etymologically or existentially, with solitude. When the lover of wisdom retreats to the hills, he may commune with Socrates and Phaedrus under the plane tree on the country road from Athens, or he may recite to himself the poetry of Milton. He may open his heart to the fundamental goodness of the creatures around him, the trees, the animals, even the rocks and the dust. Solitude is thus often a retreat into relationship, a quieting of the noise of daily living so that we may live in the world and with one another the more richly.

But isolation—literally, island-making—is altogether different. If we say, “Because there is no transcendent good, we must each pursue what looks appealing to us, so long as we remain within the law,” we might as well invert the wisdom of Donne, affirming that we are not a part of the continent, a part of the main. If we say, “It is good that modern government provides for so many of our needs, so that we need not depend upon our neighbors,” we might as well reconceive our republic as a vast archipelago of individuals, delimited by the only freedom we acknowledge: freedom from one another.

So it is that a moral philosophy of isolation, of the autonomy of the individual pursuing his own pleasures, coincides with a politics of isolation, whereby individuals purchase that autonomy at the price of ceding to the state everything that people as social beings used to do for one another. We see this bargain implicitly in the ancient, apolitical hedonists, the Epicureans. They scorned political ambition, but ultimately for a suspect reason: it troubles a man’s life. Somebody, of course, would have to assume the burden of governing and soldiering, but it would not be the Epicureans. It is true that they wished, like the followers of Pythagoras and Plato and the philanthropic Aristotle, to promote the friendship of truth-seekers as the highest of human goods, but ultimately that hope had no solid foundation. For once one has said, “All things are only the collocation of atoms colliding in empty space,” there is not too much to say that can make the heart leap. Exalting pleasure to the highest good, as Cicero trenchantly noted in his treatise De Amicitia, reduces friendship to utility and the friend to an instrument. Friends do not love one another because they find the love useful to their pleasures—that is a contradiction. They wish rather to be useful to one another because of their love. Thus the Epicureans fail in both regards: their principles isolate people from one another and from any active responsibility for the common good.

It is important that we recognize the affinity between these forms of isolation. We may see it more clearly by imagining the converse. Whenever people unite in their devotion to a good that is not quantifiable, not reducible to pleasure, not deliverable by the state, and not subject to change or the drifts of human opinion, they stand against both the state and the hedonistic isolation it encourages. It must be so. They will affirm, if only implicitly, that there is something greater than the state, and that we are meant for one another, to share the beauty of what we behold, which, since it is independent of our beholding, allows our community to embrace those who came before us and those who will come after. Pleasure is bound to the moment and to the person experiencing it, but this joy beckons to the universal and the everlasting. The state is a fictive union, a faceless collective, but this joy is essentially personal and unitive. It casts land-bridges from man to man, from age to age. It is therefore suspected by statists and hedonists alike.

Anthony Esolen is Professor of English at Providence College in Providence, Rhode Island, and the author of Ten Ways to Destroy the Imagination of Your Child and Ironies of Faith. He has translated Tasso’s Gerusalemme liberata and Dante’s The Divine Comedy.

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Through it all, one voice of pro-life sanity—certainly not the only one, but a voice to take seriously—has been Fr. Wilson Miscamble, C.S.C., a professor in the history department. Fr. Miscamble vigorously protested the Obama honors; he has been an important figure in the history of the Center for Ethics and Culture, a pro-life bright spot on the Notre Dame campus; and he leads the campus chapter of University Faculty for Life. His pro-life witness at an essential moment in Notre Dame’s history has been exemplary.

So it is with no pleasure that I venture here to make some criticisms of his recent book, a short history of the atomic bombing of Hiroshima and Nagasaki. The Most Controversial Decision is, as history, a great read. Miscamble presents a concise but clear narrative of the events leading up to the attack, especially Truman’s elevation to the duties of the presidency after Roosevelt’s death, for which his preparation at Roosevelt’s hands had been, in Miscamble’s words, a “disgraceful failure.” The race to get Truman up to speed proceeded neck and neck with the race to get the first atomic weapons ready for use. Truman received word of a successful test while returning from the Potsdam conference with Stalin and Clement Atlee, Churchill’s successor. Before he had finished that voyage, Hiroshima became the first city to be attacked with an atomic bomb.

According to Miscamble, neither Truman nor his secretary of state James Byrnes “raised any questions regarding whether the atomic bomb was a legitimate weapon of war.” And, as he points out later, “indiscriminate bombing had become the norm for the Anglo-American forces well before 1945.” I believe that referring to the Japanese attacks, and indeed, previous attacks on Tokyo and Dresden, as “indiscriminate” misstates the matter, to the extent that the word suggests merely a lack of care. Rather, the cities were attacked precisely because they had not only military targets of value, but also because they were large population centers—and thus the label “terror bombing” was aptly applied. Truman himself would describe the atomic bomb as “far worse than gas and biological warfare because it affects the civilian population and murders them by wholesale.” Yet Truman remained ready to drop more bombs than the two that were necessary; and he remained ready to drop more into the future, while praying that “he would never have to make such a decision again.”

What are we to make of this, from a moral point of view? Miscamble rightly distinguishes the question of “necessity” from the question of “morality”; even if the use of the bomb were necessary to shorten the war and save many Americans, and perhaps even some Japanese and other Asian lives, was it a morally defensible decision that Truman made?

By the standards of what philosophers call “common morality,” the answer is clearly in the negative. Common morality is that part of morality that been articulated, developed, and promulgated by the Judeo-Christian tradition, but which also can be known by natural reason. By well before the twentieth century, common morality had coalesced around a principle of just war that those who pose no threat are absolutely not to be intentionally targeted or killed. This principle was acknowledged, but certainly not introduced, by the Second Vatican Council, in its document Gaudium et Spes: “Every act of war directed to the indiscriminate destruction of whole cities or vast areas with their inhabitants is a crime against God and man, which merits firm and unequivocal condemnation.” So common morality, and at least the Catholic Church’s magisterial teaching on the matter, agree that non-combatants should never be intentionally targeted for death.

And “never” means “never.” As John Finnis, Joseph M. Boyle, and Germain Grisez explain in their book on nuclear deterrence, “Moral impossibility is as absolute a limit on responsibility as is any other sort of impossibility, and there are kinds of actions which are of themselves wrong, whatever the circumstances and good intentions.” So, as I noted in a recent Public Discourse essay, if one is convinced of the truth of moral absolutes, one must completely rule out their violations from options for action.

No doubt Truman, like Roosevelt before him, was in a difficult position in considering the invasion of Japan. Some philosophers, like Elizabeth Anscombe, have pointed to the Allies’ demand for “unconditional surrender” as contributing to this difficulty: faced with such a demand, with its implied willingness to absolutely dismantle the Japanese state even if it were to surrender (for “unconditional” means, on its surface, that nothing was off the table), there could be little motivation for the Japanese to lay down their arms.

Miscamble directly takes up this challenge, and his portrait of the Supreme War Leadership Council of the Emperor suggests an astonishing willingness on the part of some members to continue the fight even after the second atomic bombing; change in the demand would, he argues, have been interpreted as a sign of weakness. But Miscamble does not, in criticizing Anscombe, address her more fundamental point: that Truman had “certainly decided to kill the innocent as a means to an end,” a claim for which the evidence is overwhelming; nor does he take on her moral evaluation of this as “always murder.”

Instead, Miscamble approaches the issue through a Machiavellian lens, suggesting that a statesman “must come to ruin” if he is not able to make the hard decisions and “learn to be able not to be good.” Miscamble writes of Truman: “within the privacy of his own heart and soul it is likely that Truman understood he had been forced by necessity to enter into evil. And, so indeed, he had.”

But the idea of being faced with and forced by necessity into doing evil—such as violating the moral absolute against intentional killing of the innocent, or indeed any other moral principle—is no part of common morality. In fact, moral absolutes are framed, as I argued in my previous essay, in terms of intentional acts precisely because it is always possible to refrain from an action whose intention would be contrary to a human good. The deliberate killing of “the innocent elderly and the sick, women and children” is precisely such an action: always and deeply contrary to the good of human life, always and everywhere to be avoided in one’s choices and actions.

The Machiavellian idea, in fact, is deeply opposed to common morality and the tradition of moral absolutes in its pretense that the life of the successful public servant is incompatible with adherence to such absolutes (and to other forms of virtue as well). Common morality does indeed identify acts that only public authorities can perform, such as taxation and imprisonment of felons, but never on grounds that public authorities are exempt from an absolute that governs all agents.

The Machiavellian position, like the position that accepts that moral absolutes must be violated in cases of “supreme emergency,” is also unstable. If no moral absolutes for public servants, who are, after all, only human beings, then no moral absolutes at all. So if one can be forced by necessity into killing the innocents on a grand scale for the great good of the state, then why cannot one be “forced” into such killing on a small scale for the sake of one’s career, education, mental well-being, or family stability?

Thus we come inevitably to the more immediately pressing issues of pro-life consistency and witness. Consistency because the pro-life view identifies a universal moral claim as underwriting its commitment to the unborn: all innocent human beings are to be held absolutely immune from intentionally inflicted harm or death. Snip that thread in the ethics of war, and the entire pro-life garment, covering the unborn, the disabled, and the elderly, begins to unravel. And witness because the pro-life cause is furthered not only by arguments, but by a willingness on the part of pro-life citizens to live out their commitments with an acknowledgment that sometimes those commitments require difficult choices: choices of personal, and even political, sacrifice.

It might well be true that greater suffering would have resulted from a refusal to use the atomic weapons in Japan, or to firebomb Tokyo, or Dresden before that. In fact, these claims cannot be known with certainty, and also could be false. Commitment to the moral principles of common morality, however, is not, and never has been, conditioned on the idea that adherence to those principles would never be demanding: witness all those killed for their refusal to foreswear their faith. To plead for greater “understanding” of the evils that Truman avoided, or the difficulties that he faced, is one thing; but to excuse his choices as “necessary” evils, required for the greater good, is to abandon our post as witnesses to the truth that pro-life principles are immutable and without exception.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a Visiting Fellow in the James Madison Program at Princeton University. He is the author, with Robert P. George, of Embryo: A Defense of Human Life, the second edition of which recently has been released. Tollefsen sits on the editorial board of Public Discourse.

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The contours of physicians’ conscience rights and their correlative obligations have been contested for decades. Indeed, the last half century has seen profound changes in both the practice of medicine and the state of law that necessarily implicate the position of the physician vis-à-vis the patient and the procedures that the physician may be asked to provide. As Azgad Gold notes, increasingly “the medical field became more ‘subjective’ than ‘objective,’ as reflected by the shift to measuring outcomes of treatments by ‘quality of life’ parameters rather than the traditional objective ‘morbidity’ and ‘mortality’ parameters.” This, coupled with the liberalization of abortion following Roe v. Wade, has increased internal and external pressures on the medical field to see abortion as simply another valid medical choice to which the patient is subjectively entitled, regardless of the ethical—or medical—views of her attending physician.

Nevertheless mainstream medical ethics maintains that physicians have the right to refuse service to patients. It is a professional prerogative that covers everything from a disagreement over the soundness of a requested procedure to wanting to avoid notorious bill dodgers. Furthermore, on a traditional understanding, “hospital employees have the right to refuse to participate in performing an abortion, and a hospital cannot dismiss the employee for insubordination. An employee can abstain from assisting in an abortion procedure as a matter of conscience or religious conviction.”

On the other side of this debate, there is a sense that the principle of “patient autonomy” should be paramount, and what is conscientious objection to one person is burdensome refusal to another. Under this view,

The widely accepted ethical principle that patients are autonomous individuals with the right to make the final decisions concerning their medical care, along with the corresponding principle that appears in all medical professionals’ codes of ethics that the ‘patient’s interest comes first’ leads to the following general rule: patient care decisions should be based on patient autonomy, as mediated by the clinician’s conclusion that the requested therapy (1) is not medically contraindicated (since it is both medically effective and not considered unethical within the profession’s generally accepted concept of ethical practice) and (2) is not illegal.

Prior to November 2007, the American College of Obstetricians and Gynecologists (ACOG) had not taken a definitive stance on the issue of conscientious objection. The organization had established ethical guidelines for the permissibility of abortion, but these included an acknowledgement of “physician autonomy” in the right of obstetricians not to perform abortions.

By 2007, ACOG massaged its view, issuing Ethics Committee Opinion #385, “The Limits of Conscientious Refusal in Reproductive Medicine.” While conceding that conscience is a question of “moral integrity,” the Ethics Opinion ultimately concludes “there are clearly limits to the degree to which appeals to conscience may justifiably guide decision making.” This gives precedence, ultimately, to the principle of “patient autonomy.” In the end, obstetric physicians who have a conscientious objection to performing an abortion or sterilization, or to providing contraception, must (1) provide notice to patients of this fact, (2) refer patients to other providers for such procedures if they are unwilling to provide them, and (3) perform the procedures themselves regardless of conscientious objection if referral is not feasible.

The likely result of such rules is clear to pro-abortion scholars: fewer pro-life doctors. As Professor Julie Cantor argued in the New England Journal of Medicine, “As the gate-keepers to medicine, physicians and other health care providers have an obligation to choose specialties that are not moral minefields for them. Qualms about abortion, sterilization, and birth control? Do not practice women’s health.” Likewise, Oxford ethicist Julian Savulescu opined in the British Journal of Medicine, “If people are not prepared to offer legally permitted, efficient, and beneficial care to a patient because it conflicts with their values, they should not be doctors.” When conscience rights are not a priority in medicine, purposeful exclusion of dissenting voices is the desired norm.

The danger of these associational norms comes from the enforceable ethics rules of the American Board of Obstetricians and Gynecologists, which still references ABOG’s ethics guidelines in its Bulletin for Maintenance of Certification (the rules by which obstetricians keep their board certification). Thus the threat exists that pro-life obstetricians could be decertified by their specialty board for any number of conscientious decisions: failing to notify patients that they don’t perform abortions, not referring for abortions, or even not performing them in certain cases.

While there are various legislative protections for such physicians through laws like the Church Amendments and the Weldon Amendment, they are attached to appropriated funds and it is unclear that any such protections will apply to the unique revenue streams of the Patient Protection and Affordable Care Act (so-called “Obamacare”). Likewise, while the previous legislative enactments were enhanced by conscience protection regulations under President Bush, President Obama revoked the lion’s share of those regulatory protections (in many ways specifically designed to prevent an ABOG decertification on conscience grounds).

While nurses are protected under traditional medical ethics, as well as the legislative conscience protections and the (mostly defunct) Bush regulations, they too have faced increasing pressure to assist with abortions. Unlike obstetricians who mostly worry about peer retaliation through their Board—and, through decertification, a loss of hospital admitting privileges—nurses typically face more direct consequences in exercising their conscience rights, such as disciplinary action by superiors or even termination.

As the UMDNJ case shows, a dozen day-surgery nurses were told to prepare to assist with abortions or be terminated. Likewise, a previous case in New York’s Mt. Sinai Hospital involved a labor and delivery nurse who faced discipline after refusing to assist in a late-term abortion on (well-known) grounds of conscientious objection. These are recent cases from high-profile hospitals in which the message is clear: nursing is (or ought to be) a pro-abortion field.

What effects do pro-life obstetric decertification and nurse termination have on the supply of such medical professionals? The enforcement of obstetric ethics norms that would require the performance of—or referral for—abortions would effectively exclude from the practice of obstetric medicine a substantial percentage of the population that either (a) identifies as pro-life or (b) would prefer non-complicity in abortion on medical grounds. The same would hold for hospital nursing should more institutions follow the lead of hospitals like UMDNJ. While the precise percentage of such objectors is unknown, the effects of such anti-conscience norms are not: by erecting a new barrier to entry into the practice of obstetric medicine—a pro-abortion norm—ABOG decertification for conscientious objection would reduce the supply of obstetric physicians; depending on the nature of the rule, an “assist or leave” rule would reduce the supply of nurses, potentially beyond simply labor and delivery (as in the UMDNJ case). A reduced supply, coupled with a static or increased demand, will result in a shortage of obstetricians and nurses.

There is already a growing physician shortage, affecting some communities more severely than others. The shortage will increase without any of the supply reductions that are likely to occur as a result of decertifying practicing obstetricians who refuse to perform abortions and deterring future obstetricians who will choose a different career or specialty rather than violate their consciences. While physician shortages have been most acute in the field of primary care, they are predicted to grow in both primary care and specialties, and have already been felt in obstetrics. Though the causes of these current and probable shortages are manifold, crowding out pro-life individuals from obstetric practice would surely exacerbate this problem.

Likewise we are in the midst of a nursing shortage. As the American Association of Colleges of Nursing notes, “The United States is projected to have a nursing shortage that is expected to intensify as baby boomers age and the need for health care grows.” The Bureau of Labor Statistics estimates that there will be over 600,000 more nursing jobs available in 2012 than there were in 2002. The need for nurses is so great that nursing is one of the few fields in which employers seeking to hire foreign labor do not need to file a labor certification with the Department of Labor; in effect, the government just assumes that medical employers need the nurses. And yet in the face of these persistent supply problems, UMDNJ says that a dozen nurses (and any number of others with similar beliefs) are not fit to practice nursing simply because they oppose abortion.

Such potential reductions in the supply of obstetricians (and further reductions of the supply of nurses) should be of particular concern to those interested in health care reform. It is particularly inconsistent with the underlying policies of President Obama’s health care reform measures. As the Office of Management and Budget noted, “The Administration will explore all serious ideas that, in a fiscally responsible manner, achieve the common goals of constraining [health care] costs, expanding access, and improving quality.” A reduction in the supply of obstetricians and nurses will, by definition, restrict access and increase costs as the supply diminishes. Likewise, even if an obstetrician decides to recertify in another specialty or practice generally, such a restructuring further disrupts the supply of physicians by imposing both transition costs as the obstetrician retrains and opportunity costs given the obstetrician’s potential to continue practicing in his or her chosen specialty.

These preventable supply-reduction outcomes are not consistent with goals (shared by liberals and conservatives alike) of constraining costs, increasing access, and improving quality in health care. If those shared goals truly are important, then conscience protection is a relatively simple policy to maintain the supply of needed health care workers: first do no harm.

Michael A. Fragoso is a student at Notre Dame Law School where he is President of Jus Vitae.  This piece was adapted from his Note, Taking Conscience Seriously or Seriously Taking Conscience?: Obstetricians, Specialty Boards, and the Takings Clause, 86 Notre Dame L. Rev. 1687 (2011).

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Similarly, there are, we suppose, certain powers that every government possesses, by the sheer fact of its being a government in place—the power to pass and enforce limited laws, for example. Consider a government so tyrannous, so violating of the moral limits on state power, that it has become illegitimate, a valid target for revolution and disobedience. Our intuition, I suggest, is that even such a government has not invalidated its laws against, say, fraud or rape. We may suspect that the judicial system has been so corrupted that we cannot trust it to enforce such laws fairly, but the positive laws themselves are not thereby rendered illegitimate regulations.

All that is shorthand, of course, for a much longer discussion. For the purposes of this argument, however, take it as read: far out on one side are powers we believe no government ought to have, and over on the far edge of the other side are powers we suppose every government has.

With some such understanding in place, however, I want to ask a question about the middle ground—the gap between what a government may never rightly do and what a government may always rightly do. The question is simply this: Are there powers that some legitimate governments possess, while other legitimate governments lack them? Phrased in another way, this is a question of authority: Do all allowable governments have the same levels of authority? Can they legitimately perform all the same actions?

Think of ancient Israel under the Judges and Ithaca under the long-delayed King Odysseus; of the Roman Republic, Golden-Age Spain, and the Papal States as ruled by Pope Gregory XVI; France, for that matter, during the reign of Prince-President Napoleon III, or the Swiss Federation after the anti-Catholic Sonderbund War of 1847; Russia during Kerensky’s brief tenure, Saudi Arabia under its current king Abdullah: legitimate governments all, one supposes (for certain values of the word legitimate). But are we willing to grant that each possesses—metaphysically, constitutionally, and logically—exactly the same powers as the others?

It seems obvious enough that, for a Christian thinker, not every government has the same metaphysical warrant or an equal theological status as an agent of God’s providence. All authority derives ultimately from God, yes, and no historical entity is entirely lost to God’s purposes. But not all authority is directly transmitted, and not every entity is a holy one. God has not said to us of Angela Merkel, chancellor of Germany today, what He said in scripture of David in ancient Israel: “I have laid help upon one that is mighty; I have exalted one chosen out of the people. I have found David my servant; with my holy oil have I anointed him.”

Neither do all governments hold the same powers constitutionally. The right to defend by force its own existence seems a natural authority belonging to every legitimate government, but perhaps the right can be surrendered in at least some sense. Article 9 of Japan’s constitution certainly imagines so, declaring that “The Japanese people forever renounce war as a sovereign right of the nation.” Modern interpretations of the U.S. Constitution prohibit even the individual states from any establishment of religion, but most countries in the Middle East openly declare themselves Islamic nations and are not generally thought to be illegitimately governed merely for that reason.

Finally, not all forms of government provide the same powers logically. His Faithful Majesty Richard the Lionhearted had a logical claim to the right to attempt to reconquer and reclaim the Holy Places in Israel for Christianity. Whether this was a genuine right a ruler could hold (or whether the actual attempt was wise) is an interesting question, but the authority to participate in the Third Crusade derived logically from the medieval Christian oaths with which Richard took his throne. Modern-day France, under its official policies of laïcité, has no logically imaginable claim to a similar authority.

One reason these distinctions may be important is, of course, the death penalty. Set aside, for a moment, the moral questions about capital punishment in America today, the practical concerns and the political problems. The question I want to ask is about the authority to execute criminals, for, I suggest, the question of authority gives us an entirely different way to look at the issue.

Now, some might feel capital punishment to be an illegitimate power that no government ought to possess. Some might think it instead an inherent power that all governments hold, whether or not they exercise it. (As far as that goes, there are even some who, further out on the edge, believe that a government loses a measure of legitimacy if it fails to use its power to execute—the only pro-capital-punishment position I, personally, find coherent. Bloody and inhumane, but coherent.)

The answer, however, may lie between these extremes. Perhaps some forms of government have a colorable claim to the authority to execute murderers, while others do not. Sorting all that out, I believe the United States is one of those that does not have the authority—at least, not in the form of an attempt to use execution as a way to do real retributive justice to the fact that a murderer has taken a human life.

The American state has a duty to maintain the social contract, certainly. To protect its citizens and preserve its own existence, of course. And under easily imaginable circumstances, a prudential judgment might legitimately demand the death penalty in fulfillment of these duties. Even to speak of prudential judgments about how best to defend the social contract, however, is already to have abandoned a certain sense of judgment—judgment as cosmic, metaphysical, and righteous; judgment as fulfilling the theological demands of the universe.

England’s and Scotland’s King James was wrong (one now imagines) when he declared in his royal manual that a king is “ordained for his people, having received from God a burden of government, whereof he must be countable.” Still, at least the premise of his theory of the divine right of kings allowed the conclusion that the king’s magistrates could impose not merely what lawyers of the time called the “low justice” of ordinary social punishment but what they called the “high justice,” in which the defendant’s life is in jeopardy. The theory of the divine right of kings is a metaphysical and theological claim about the state, and it has logical consequences.

But what high powers for justice—what balancing of the cosmic books, taking blood for blood—logically exist for a nation in which a supreme court can read its founding documents to say, for example, “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”?

Think of analogous situations in war. Do all forms of government possess—metaphysically, constitutionally, and logically—the same war-making powers? A Christian political theorist would have to hold that a modern, constitutional president lacks authority for military actions that Joshua righteously used in the conquest of Canaan. (For that matter, since the First World War, international law has grown very doubtful about the whole idea of legal authority to rule by right of conquest, although it is an idea of considerable antiquity.)

That is not to say modern states cannot justly go to war for any of several reasons, prudentially applied. But do they have authority to war for all the reasons that a religious state could go to war? In his famous poem about Don John of Austria, G. K. Chesterton mocks the Christian countries (especially France) that failed to send help to defend Christendom at the 1571 Battle of Lepanto—not because it was a bad prudential decision on their part but because they did not participate in what was essentially a crusade. Few would blame, say, the Czech Republic for a similar default today.

The modern interpretation of Just War Theory has almost completely put aside any jus ad bellum that could derive from the need to set right an international wrong; we tend to read Just War Theory as an entirely negative limit: a bar on going to war in certain conditions, rather than something that might, under other conditions, require war.

And, indeed, Just War Theory acts as such a negative bar for a modern democracy seeking to act within its proper authority for defending its citizens. When John Quincy Adams insisted that America “goes not abroad, in search of monsters to destroy,” he was not defining an American pacifism—for war will come, and the lower purposes of self-defense and self-interest may require military force. He was describing instead authority for a high reason to go to war, which he believed the United States lacked.

Some conservatives were extremely uncomfortable with the invasion of Iraq under President Bush and the air support for the Libyan revolution under President Obama, and they expressed some of their discomfort in terms of authority: Whatever the prudential judgments about such wars (with which they often also disagreed), the United States is not a crusader state; it lacks, they said, logical or theological authority to undertake war for ideals or general redress of evil.

Perhaps those conservatives were right, or perhaps not. That’s an argument for another day. But, by way of analogy, consider this: If you had doubts about the high authority of the United States to engage in those military actions, are you not required—for precisely the same reasons—to have doubts about the high authority of the nation to execute its convicted murderers in the name of retributive justice? To apply the death penalty because its killers deserve to die?


Joseph Bottum is a contributing editor to the Weekly Standard and author of The Second Spring: Words into Music, Music into Words.

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Some, particularly those who have witnessed student activity surrounding such significant social issues as the Vietnam War, civil rights, or apartheid, expressed surprise at such activity. Many observed in dismay the stark contrast between the rowdy protest and the deafening silence on campus for the children who were allegedly sexually assaulted on the hallowed grounds of the athletic facility.

Sadly, however, there are two main reasons that we should not find ourselves surprised by this juxtaposition of silent indifference for the child victims of sexual assault, on the one hand, and massive support for those whose reputations have been sullied by the subsequent allegations, on the other. This disturbing outcry is consistent with how we approach child sexual abuse.

First, this reaction of societal indifference to the reality of child sexual assault is not new. As any child abuse prosecutor will tell you, similar community reaction is par for the course. Often, community support is placed with the alleged perpetrator, a phenomenon whose roots are analogous to those of the Penn State protesters’ support for an allegedly complicit supervisor. Once a child has bravely disclosed sexual abuse by a public figure, the challenge for him or her is often not the trial, but the collateral public fallout; community members often respond hostilely to those who reveal the true nature of a socially integrated sexual offender, one who has gained the community’s trust in order to gain access to and assault children. Prosecutors find themselves preparing families for threats, bullying at school, protests in the media, public rallies in favor of the accused, and courtrooms packed with citizens who vouch for their accused pillar and ignore evidence that supports the accusation. In the face of such a societal reaction, the victim is lost, if not targeted.

Why does this occur? Perhaps it is public denial, fueled by the desire to believe that this could not take place in one’s community, that one could not so egregiously have misjudged the perpetrator. Perhaps it is the scheming of the offenders, who count on this indifference and often select and groom victims who are at-risk, more vulnerable, and unlikely to be believed or valued. It could be fear, incited by the personalization of what before were just numbers: some studies report that 25 percent of girls and 16 percent of boys experience sexual abuse during childhood. It also could be the attempt of ordinary people to distance themselves from the horror and insidiousness of child sexual abuse, modeling the diverting eyes of adults who suspect—or, in this case, witness—and ignore inappropriate contact between adults and children.

The second reason we should not be surprised by the callousness of Penn State’s protesting students may be a new one: they have been raised in a culture that has normalized children’s sexual objectification, defined by the American Psychological Association as “being made into a thing for others’ sexual use.”

This generation has so regularly witnessed the sexualization of children that they have become numb to it. This is not a general complaint on the place of sexuality in media today. This is a more refined concern about the unhealthy messaging portraying children “as commodity” available for the consumption of adults. As a society, we have bombarded them with so many images and messages through the internet and various media platforms that they are not shocked by it. They have developed in a society where the average age at which girls and boys become involved in prostitution is between 11 and 14, and where a multibillion-dollar child pornography industry thrives. They have attended schools where their objectification is omnipresent: recently, the American Association of University Women released a study indicating that 48 percent of 7^th- through 12^th-graders surveyed experienced sexual harassment in the 2010–2011 school year. We subject them to media that label cases of adults sending sexual pictures to children, or asking them to do the same, as “sexting” rather than calling it what it is: solicitation, luring, or grooming. We glorify the concept of adult-child sexual relations by using titles such as “barely legal” or by selling child-size “pimp” and “prostitute” costumes at Halloween.

This disturbing trend has developed despite alarms being sounded by organizations such as the American Psychological Association, which has warned of the many negative consequences of the sexual objectification of girls; the National Coalition to Prevent Child Sexual Abuse and Exploitation, which has issued a National Plan of Prevention calling for an end to the normalization of this behavior; and numerous researchers and authors who have written extensively on the negative effects of our “culture’s” shortening childhood and endorsing the sexual objectification of our children at younger and younger ages.

Having created and perpetuated this cultural climate, are we now surprised that some of the young adults it produced do not understand the true nature and gravity of the sexual abuse of children? Are we now surprised that some of these young adults express indifference to the kind of abuse that increases victims’ risk for short-term and long-term physical and psychological damage? How can we be? Not only have we groomed the victims for these offenders, we have groomed the generation for indifference.

There is much to be learned from the events unfolding at Penn State, regarding not the offense but the response to it. Some of the students at Penn State are missing the real story: that, at its core, this is not a case about personnel decisions or a game; this is a case about rape, about a young, groomed, weak, and vulnerable boy possibly being anally penetrated by a trusted adult against a shower wall; and about an allegedly indifferent community of professionals, lawyers, staff, and other officials, who found it easier to divert their attention from the abuse than to face its ugliness.

However, these college students are not the only ones missing the real story. The rest of us are, as well. The other real story is about responsibility and accountability, and not just of the individuals and institutions who considered these children expendable. We must acknowledge our collective responsibility for having created a society filled with negative, unhealthy sexual images that foster the sexual commoditization of children.

There is hope, however. It can be found in the students who held candlelight vigils to support victims of child abuse and in the courage of Penn State’s trustees to take dramatic steps to increase accountability, despite the expected resistance to this countercultural approach. More broadly, it can be seen in the Declaration of Rome, an action plan arising out of the recent international Forum on the Abuse of Children’s Rights, which recommends, among other things, that “citizens in every country be made more . . . aware regarding the abuse and sexual exploitation of children, and that they be urged to report.” Hope also can be found in the revival of long-dormant statutes to penalize adults for failing to report their suspicions of sexual abuse to the authorities.

If these students want a cause to get behind, let me suggest this one: raising awareness of the despicable reality of child sexual abuse. More tangibly, they can focus on the law, which reflects the values of a society. Demand that these mandated reporting statutes, which exist across the country, actually be enforced. Demand that such laws be paired with penalties to deter the indifference. Most importantly, demand to live in a society that reflects the inherent dignity of children and our communal responsibility to protect them.


Mary Graw Leary is an associate professor in the Columbus School of Law at the Catholic University of America.

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The need to provide shelter from the elements and serve everyday needs led to the construction of roofs and walls that defined spaces adapted to human use. Traditional buildings and cities were assemblies of such basic components, put together in ways that had been found to promote particular and overall functioning. The New York row house, the New England village green, and the Mediterranean arcade and plaza all suit the setting and way of life in which they grew up.

More importantly, going beyond mere function, those structures combined ornament and other details that somehow seemed necessary. Even when structures were designed as a whole, their form and organization followed the evolved principles that had led to successful construction in the past. The results included the great historical styles of architecture, and the most-loved and most functional buildings and cities East and West.

Times change, and not always for the better. The advent of architectural modernism in the first decades of the twentieth century suppressed traditional styles and complex evolved forms in favor of simple concepts and striking images. The result was an approach to the built environment that lent itself to public relations and propaganda—it played well in manifestos and glossy architecture magazines—but was less functional, less adaptive, and less human and engaging.

What happened, why did it happen, and why do people stick with an approach to building and design that evidently does not work to engage our complex faculties? The answer goes to the nature of science and of freedom: whether they have to do with understanding reality and living in accordance with it, or with the imposition of arbitrary will.

Our educated world does not distinguish science from technology, because it confuses understanding with arbitrary control. Modernism had to do with the latter. It was an attempt to liberate technology from reality that took the form of a massive but unscientific application of technology to shape the world into an industrial dream image. Hence the emphasis on unfamiliar invented forms, sharp edges, and gleaming surfaces. The effort was entirely unscientific because no thought was given to discovering how human beings actually interact with their environment, or whether we need certain specific geometrical features just like we need nourishment and air, or to understanding how human beings interact with each other to create a city. Modernist architects just drew forms on paper that looked like machines and those in power built them.

The motivation was essentially political and oriented toward domination. The revolutionary movements that followed World War I wanted a break with the past, and especially the look of the past. The world revolution would rebuild humanity through industrialization, so these movements embraced buildings that looked like the machines of the time: sleek, white, and metallic. States, both on the left and on the right, loved this depersonalized approach to building, where the individual no longer matters and everything is sacrificed to an imposed utopian vision. Aspects of architectural modernism are prominent in Nazi and Soviet architecture, and the capitalist state also turned the machine into an icon. When Le Corbusier died both Lyndon Johnson and the Soviets expressed their sense of profound loss.

The modernist architectural pioneers made up wild explanations for why the new designs and materials were supposedly superior, practically and ethically, and were rewarded with commissions, fame, and academic positions. Human checks and balances disappeared, the industrial system took over, and traditional construction techniques and a vast network of local building and craft traditions went out of business.

The outcome of these developments is something resembling a totalitarian system that unites immense financial and industrial interests with a pseudo-religious fanaticism. There are governments and corporations that wish to flaunt their power through monstrous and arrogant building schemes, industries that produce very expensive high-tech materials, developers who want to make their money work but have no moral constraints, and architects who are willing to do anything to obtain a commission. Politicians get pulled into supporting the ideology by the chance to gain media coverage and campaign contributions. And the gullible public naively believes all it reads in the conformist media.

There is something profoundly anti-natural about the results. By contradicting traditional evolved geometries, modernist and contemporary architecture and urban planning go against the natural order of things. When an architect or planner ignores the need for adaptation and imposes his or her will, the result is an absurd form—an act of defiance toward any higher sense of natural order. There is no room for God in totalitarian design. What religious believer is helped to greater devotion by a modernist Church? Who can love materials hostile to our touch and sight, surfaces and oppressive spaces that sometimes suggest violation and death? Architectural modernism implies a sort of cosmic rebellion against order and life.

One lesson of contemporary architecture is that there exists a basic need for religious belief. Ours is not the secular world everyone pretends it to be. Architects tend to follow a cult of images that arose in the early twentieth century from the desire to break with all elements of the past, especially inherited human culture. Contemporary architects professing to be atheistic champions are in fact promoting an ideology with religious overtones. Their buildings, we are told, are “iconic,” and the attempt to reshape the built environment in accordance with pure concept, as Le Corbusier proposed in his plan for Paris, is an attempt to reshape the world in which we live into an expression of will and inhuman rationality.

The ideology of contemporary architecture is detached from nature and from God. It creates buildings that are dangerously detached from human beings. Traditional religions, despite periodic failings and fanaticisms, arose out of the evolution of human culture, and are thus far more grounded in real human needs. More importantly, they celebrate humans as rich and complex beings, with capabilities far beyond those of a machine. This makes religions more rational, and less divisive, than pseudo-religions based on irrational will. A Greek or Hindu temple, a sixteenth-century mosque, or a Gothic cathedral connects us to each other, to the past, and to the world. A modernist building or urban design does not. Even someone from a different civilization and religious tradition can tell the difference.

For millennia, houses of worship focused the design and construction talents of the populations onto their love of God. Traditional religious architecture is above all an architecture of life, from the overall form down to the smallest ornamental detail, because God is identified with life and with love. After a cult of alien images supplanted God in the early twentieth century, churches were built to the glory of the cult, no longer to the God of living beings. Today we see merchants of an architecture characterized by a geometry that avoids living structure—the currently fashionable star architects—who are commissioned to build religious buildings totally devoid of humanity and love, and so of God. Is this the suicide of the Great Religions, intentionally suppressing their core values?

These observations on architecture have implications for social life. Structural rules developed for buildings and urban design cannot be applied directly to human society and political systems, but the same fundamental principles are at work. In general terms, evolved societal complexity needs to be respected. Politically, consideration of the nature of functional and adaptive systems points to traditional social values and the individual freedom to choose, and away from the cult of anti-intuitive expertise in the service of the globalized consumerist system. That means favoring traditional societal structures that grow up from the connections found in daily life and have proven their value over generations. This result is antithetical to the insistence on erasing tradition and creating a brave new society based on industrialized principles and untested utopian ideas that promise progress and liberation but deliver the precise opposite.

So what to do? Contemporary society has detached people from the real world, and especially from the traditional, spiritual world where a higher sense of order resides. Natural perceptions made concrete in tradition have been replaced by ideology and constructed images. Ordinary good sense and a human grasp of reality somehow must be restored.

New architectural theories developed by Christopher Alexander and his followers attempt to do so by giving scientific reasons for things, such as the need for small-scale ornament, that in the past were simply assumed. With ordinary people a brief introduction is enough for them to get the point and tune into living structure. The problem is with the educated. Architects in particular have been taught to block their own sensory apparatus so as to support approved products of modernity. That’s necessary because preferring cold, sterile, or absurd forms goes against our need to experience biophilic structures in our immediate environment. This aspect of education in the West is as effective in promoting ignorance as the fanatical indoctrination seen in other parts of the world.

It is hard to know how it will end. So far the results of our protests and denunciations have been more reminiscent of Cassandra than of the original Alexander and his generals. Perhaps the current situation will end with societal collapse when we run out of cheap energy? Or when the developing world realizes the deception? Already the West is hated through its architectural expressions: You cannot fool traditionally religious people into believing that monstrous buildings hostile to human sensibilities are good.

All is not lost, of course. Humanity is irrepressible, and thousands of buildings reflecting the human spirit are erected around the world today and in the recent past, even though we never hear about them. They are indigenous, vernacular, modest, many of them self-built, all expressions of human intuition about what a nutritive environment has to be. Even the buildings in third-world favelas have more life in them than prize-winning modernist or postmodernist structures. More formal buildings built in regional traditional styles also abound: Again, you don’t see them in the media. There are also quite a number of contemporary architects working with the classical form language, and many of their buildings are wonderful. Architects who relearn how to design classical buildings free up their intuition to perceive nutritive spaces, forms, and surfaces, and therefore their product is adaptive to human sensibilities.

In the end, perhaps after horrible upheavals, the defects of contemporary architectural movements will certainly destroy them. In the meantime, those who see the nature and effect of those movements must continue to do battle in season and out of season. They owe that to those who came before, to their fellow citizens, and to their posterity.

Nikos Salingaros is an architectural theorist, a long-time associate of Christopher Alexander, and a mathematical physicist by original profession. James Kalb is a lawyer and independent scholar. This article is adapted from an earlier interview.

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The natural law view that underlies much of what I have written for Public Discourse is rooted in the idea of St. Thomas Aquinas that the principles of the natural law are directives toward human goods that are aspects of human well-being. Moving beyond St. Thomas, we could say that each basic good gives to human agents a basic reason for action, rooted in those aspects of human well-being and perfection promised by instances of those goods. But there are many such goods: human life and health, knowledge, aesthetic experience, work and play, friendship, marriage, personal integrity, and the good of religion.

Faced with a plurality of goods, the moral question is this: what should one do when one is faced with competing options in the pursuit of goods, options that are not all mutually pursuable? The suggestion that I make here is that one should be always and entirely open to all the goods, in all persons, and never act directly or intentionally against any of the goods in any persons. “Openness” here should be understood to encompass the demand of the goods that they be promoted and protected: one is not open to basic aspects of human well-being if one always does nothing. The goods call, in various ways, for action on their behalf. But in all such action, the core negative requirement of morality is that one never intentionally act so as to damage or destroy an instance of a basic good.

To repeat, basic goods are aspects of human well-being, and nothing but such aspects. In themselves, as I have argued in my discussion of capital punishment, they give us always a reason to promote and protect, and always a reason not to damage. So an ethic of human goods, an ethic that takes human well-being as a touchstone notion, must establish some very strong protections of goods to be respected in human action, for damage to human goods is damage to human well-being or flourishing. An ethic that was concerned with human flourishing but paid no attention to whether an act was damaging or destructive of human goods would make little sense.

Yet it is impossible to go through life in service of human goods and human well-being without having some kind of negative impact upon basic human goods: even the choice to do this, rather than that, means that some goods will go unserved. In some cases, even fulfilling my obligations will have as a consequence some damage to basic goods: I thrust myself between my child and the attacker’s knife, for example, in order to save my child’s life; but I suffer grave damage to my own life in consequence. So a goods-based ethic rooted in human well-being cannot demand that whatever one does, one never in any way do anything that will bring harm upon instances of human goods. Such an ethic would be unworkable.

But one can always refrain from acting; and in this way, if in no other, one can always refrain from intentionally damaging instances of basic human goods. So we should conclude that the core constraint of ethics should and could be framed as a demand that one never intentionally damage or destroy an instance of a basic human good. This conclusion would only be strengthened were one to recognize that in many cases of positive action for the sake of some good, as in the case of my saving my child’s life, the unavoidable damage to the good—my life—is not intended. Rather, the harm I suffer is accepted as a side effect, but it is neither chosen as a means, nor willed as an end; in short, it is not intended.

This line of thought leads not only to the formulation of moral absolutes, but also to the so-called principle of double effect. With regard to absolutes, each will be framed as a negative requirement never to choose a particular kind of act that is always damaging to a basic good. So, a moral absolute regarding human life would be: never intentionally kill an innocent human being. (In fact, I believe that no human being should be intentionally killed, but we can put that aside for now.) 

However, recognizing that some acts that have as a consequence the death of a human being are such that the death is not intended, the principle of double effect teaches that under certain circumstances—if the agent has not been negligent and has no other way to address the problem, and if the goods at stake are great and gravely threatened—then the agent may do something (save my child’s life) that is morally good, even though that action has as a side effect a consequence (harm to my life) that it would be wrong to intend. Particularly where the good of human life is concerned, the principle of double effect has been thought central to the defense of moral absolutes; for example, without it—if we had only a blanket prohibition against doing anything that harmed innocent life—it would be impossible to refuse a medical treatment, no matter how onerous or costly, if the refusal would shorten the patient’s life.

What emerges from the discussion concerning moral absolutes, then, is this: First, moral absolutes are essential to the protection of human goods, and hence human well-being. They are not “mere” restrictions or commands, with no relevance to the goods that matter to us. 

Second, moral absolutes are to be understood as restricting certain kinds of intentional acts: intentional killing, for example. This leads, third, to the following important point: as so understood, moral absolutes are to be framed only by identifying a kind of act that, if it were chosen, would be such always as to involve the agent’s intending damage or destruction to a basic human good. Put another way, the acts picked out by moral absolutes do not themselves include a reference to their moral status; but they are such that they—acts of this kind—may be identified as always and everywhere wrong because of their negative relationship to human goods.

Descriptions of the moral absolute against murder thus go wrong if they identify the act that is prohibited as “unjust killing” or “killing one with a right to life.” Much better is: no intentional killing of innocent human beings. We may designate this kind of action by the name “murder.” And if, as I think, such acts as murder, so understood, are always directed against someone’s pursuit or enjoyment of basic goods, then one can conclude that the intentional killing of an innocent human being (murder) is always and everywhere wrong. Murder is thus not defined as wrongful killing (for then “murder is wrong” would be a mere tautology, trivially true). But, because all murder involves an intentional damaging of an instance of the basic good of human life, it is true that murder is always wrong.

There is, fourth and finally, an implication of the “absoluteness” of moral absolutes, an implication identified by every major figure of the Thomistic natural law tradition up until quite recently: absolutes are never to be violated, regardless of the consequences. This claim might seem almost comically obvious, were it not so routinely questioned, even by very serious proponents of the natural law, and even by members of faith traditions, such as the Catholic Church, who have accepted and promulgated the doctrine that there are moral absolutes. For routinely we find that even such persons of good will are doubtful that moral absolutes should be upheld in situations where many lives are at stake, or where horrible evils are threatened, or in situations, as they have come to be called, of “supreme emergency,” such as the Nazi threat against Europe, the Soviet threat against the free West, or the Islamist threat of al Qaeda.

As John Finnis and others have argued, even a conditional willingness to accept that moral absolutes may be put aside in such cases denudes the doctrine of moral absolutes of all its distinctive content: apparently, if such exceptions are to be contemplated, there will be situations in which the goods protected by the moral absolutes are outweighed or overridden by some conceivable set of harms or other achievable goods. But if such a possibility is available in principle, then not only are there no moral absolutes, there is also no reason to think that the boundary at which we meet restrictions against such actions as intentional killing of the innocent, false assertion, blasphemy, or adultery is far out, distant from our day-to-day considerations. Perhaps there are legitimate goods to be achieved and evils avoided, by, for example, killing a patient to relieve suffering, and not just killing non-combatants to destroy Nazi morale.

So the acceptance of the claim that there are moral absolutes makes a stringent demand on our practical reason: violation of such absolutes is never to be considered a real option for action, whether in hypothetical scenarios scared up to induce conditional violations, or in our day-to-day life, faced with the myriad of temptations to which each of us is subject.

Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a Visiting Fellow in the James Madison Program at Princeton University. He is the editor of Bioethics with Liberty and Justice: Themes in the Work of Joseph M. Boyle. Tollefsen sits on the editorial board of Public Discourse.

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