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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In 1996 Congress passed, and President Clinton signed into law, the Child Pornography Prevention Act. The Act prohibited what has been termed “virtual child pornography.” That is, it was directed not primarily at the distribution of sexually explicit material made with the use of actual children; such material was already illegal. Instead, its chief aim was to proscribe material devised by other means, such as the use of youthful-looking performers or digitally created or manipulated images, to appear as if these materials depicted minors in sexually explicit ways.

The Act was challenged by a consortium of “adult entertainment” businesses calling itself the “Free Speech Coalition.” One might be tempted to react with indignation that a pack of pornographers would try to dignify its activities under the venerable constitutional concept of freedom of speech. One would err, however, if one directed this anger only at the pornographers. For the Supreme Court itself has long invited such an understanding by holding—contrary to any plausible interpretation of the Constitution as it was understood by those who wrote and ratified it—that pornography is sheltered by the First Amendment. Of course, the Court has never abandoned its longstanding doctrine that “obscenity” is not constitutionally protected speech; but this has become nothing more than a kind of jurisprudential Potemkin village. The Court assures a still somewhat morally serious public that obscenity is not protected, even as it makes it almost impossible to demonstrate that anything, even the most blatant hardcore pornography, fits its highly technical definition of obscenity. Pornography is not obscenity, the Court holds, unless it can be shown to have no socially redeeming value at all—something that would be very hard to demonstrate of any pornography that includes even one scene or element that is not itself sexually explicit.

Having thus invited the Free Speech Coalition’s challenge to the Child Pornography Prevention Act, the Court continued down this same path in its 2002 ruling in the resulting case, Free Speech Coalition v. Ashcroft. So long as it is produced without sexually exploiting any actual children, the Court claimed, even child pornography is not necessarily obscenity. That is, even child pornography may have socially redeeming value and is therefore entitled to the protection of the First Amendment.

By this ruling, the Court contributed to a public culture that encourages the sexual exploitation of children. Most obviously, it gave constitutional protection to material that feeds and strengthens the desires of pedophiles and thereby makes it more likely that some of them will act them out. More subtly, by preventing efforts to prohibit such material, the Court helped create a culture that undermines the pedophile’s own sense that his desires are wrong and to be resisted. A pedophile without access to child pornography is simply alone with his perverted thoughts and is therefore unlikely to forget that society condemns his desires in the strongest possible terms. But a pedophile with legitimate access to child pornography, even if it relies on “virtual” images, is taught that there are others—indeed, lawful businesses and even parts of whole industries—that sympathize with his desires and will cater to them, and that in doing so they are even exercising a constitutional right. Human beings are naturally sociable creatures. They tend to think, feel, approve or disapprove, praise or condemn, in groups. Accordingly, the very existence of child pornography, especially if it is lawfully produced, cannot help but encourage pedophiles to believe that their appetites are morally legitimate, because shared and approved by others, and thereby push some of them to violate the law by sexually exploiting actual children.

Indeed, by its handling of these issues, the Court has introduced a kind of moral incoherence into American law that must erode the public’s, and especially the pedophile’s, appreciation of the immorality of the sexual exploitation of minors. According to the Court, laws forbidding the sexual exploitation of minors are legitimate, but laws forbidding the production and consumption of “entertainment” that encourages the sexual exploitation of minors are illegitimate. This is absurdity; if it is wrong to do something, then it must also be wrong to encourage it, and even to desire to do it. This is especially true if the wrong in question is criminal and indeed among the most reprehensible acts that can be imagined. Because of this contradiction, one or the other of the Court’s affirmations must be undermined: either the illegitimacy of child sexual exploitation will lead us to reconsider the idea of a “right” to child pornography, or the legitimacy of such pornography will undermine our sense of the immorality of the acts it depicts and encourages. Given the deep roots that sexual libertinism has already laid down in our culture, it is difficult not to fear that the latter outcome is the more likely. In any case, it is impossible to mistake the lesson that the pedophile will want to draw. Receiving such mixed messages from the culture, his will to resist his own impulses will be undermined.

Moreover, the Court has introduced such moral confusion into our culture not only through its First Amendment jurisprudence, but also through its invention and expansion of the “right of privacy.” In 2003, in Lawrence v. Texas, the Court found that the privacy right prohibited a Texas law against homosexual sodomy. Whatever one thinks of the outcome of the case, the Court’s reasoning was radical in its implications. In effect, the Court held that a mere moral conviction on the part of a political majority was not a sufficient basis for law. A law with no better foundation, the Court suggested, was no better than arbitrary and irrational, and was probably rooted in disreputable prejudice. As Justice Scalia pointed out in his scathing dissent, the Court’s doctrine called into question a whole field of long-established morals legislation, from prohibitions on prostitution to proscriptions of incest. Scalia’s observation also applies to laws against the sexual exploitation of minors. It would be difficult to contend, after all, that such laws are not deeply rooted in the moral convictions of the majority.

None of this is to suggest that most pedophiles are readers of Supreme Court opinions. But they don’t have to be. Almost all of them are certainly aware of the cultural establishment’s libertine conviction that an individual’s sexual desires, whatever they are, are none of the law’s business; and most of them are surely aware, at least in some dim way, that the Supreme Court has repeatedly used its authority in defense of such a view. From there it is only a short step for some of them to convince themselves that their desires really are harmless so long as they can find a child to seduce, while escaping the detection of laws that now seem to have no real moral authority.

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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This is the thought that springs to mind when one hears of the conduct of the Westboro Baptist Church, whose members make public spectacles of their fellow citizens’ funerals—even and especially those of warriors killed in the line of duty—in order to highlight ideas that could otherwise command little attention. Westboro continues to maintain a busy schedule of funeral protests.  Earlier this month Westboro leaders tweeted their intention to picket the funeral of Steve Jobs, and just last week they made known their intention to protest at the upcoming memorial of an Army Staff Sergeant killed in Afghanistan.

Although it is a natural response, to wonder whether nothing is sacred is perhaps an overreaction. After all, every society has a small class of zealots who, in their self-righteousness, think they may ignore even the most minimal standards of human decency. The conduct of such people in no way defines the character of the larger society.

This thought—“Is nothing sacred?”—is, however, a reasonable reaction to the behavior of America’s federal courts, which have given undeserved dignity to Westboro’s conduct by declaring it within the protection of the Constitution. Westboro’s abusive demonstrations, the courts tell us, are sheltered by the First Amendment’s prohibition on laws abridging the freedom of speech. Such judicial pronouncements do reflect on the nation’s character, because they are made under the authority of the United States and in the name of its fundamental law.

This problem first came to light last March, when the Supreme Court announced its decision in Snyder v. Phelps, ruling that the First Amendment barred Snyder—the father of a U.S. Marine killed in Iraq—from suing members of Westboro for the emotional distress caused by their protest at his son’s funeral. Last week, in a different case, the problem resurfaced in the United States Court of Appeals for the Eighth Circuit. The Appeals Court’s ruling is even more troubling than the Supreme Court’s because it threatens more judicially created restrictions on society’s ability to protect decent standards of public expression.

In striking down the suit for emotional distress, the Supreme Court reassured the nation that states still had tools by which they could protect the dignity and privacy of those burying their dead. A number of states, it noted, had passed or were considering laws requiring protesters to keep their distance from funerals. The Eighth Circuit ruling last week, however, cast a serious cloud of judicial doubt over such laws.

To be sure, the Eighth Circuit’s judgment does not definitively settle the constitutional issue here. The Nebraska Funeral Picketing Law prohibits funeral protests within 300 feet of the site and within an hour before and two hours after the funeral. Shirley Phelps-Roper, a Westboro member, challenged this law in United States District Court by seeking an injunction against its enforcement while it was under challenge. The District Court judge denied the injunction, but, on appeal, the Eighth Circuit panel agreed with Phelps-Roper that it should have been granted. Such a procedural ruling does not, again, give a final ruling on these laws’ constitutionality. The panel’s reasoning, however, is ominous for their future.  For the three-judge panel granted the injunction on the grounds that Phelps-Roper’s constitutional challenge is “likely to prevail” in the end, a fairly clear signal that she eventually will win relief not only in a temporary injunction but in a judicial decision to strike down the Nebraska law.

Rulings such as these do not arise merely from the preferences of liberal judges inclined to side with offensive malcontents against ordinary citizens. Snyder v. Phelps was decided 8 to 1. Justice Alito alone dissented, while the rest of the Court’s conservatives joined with all of its liberals to forbid the emotional distress suit in the name of the First Amendment. Similarly, the appellate panel’s decision was unanimous. And the Eighth Circuit, well-stocked with Republican nominees, is no haven of liberal judicial activism.

On the other hand, neither do such rulings stem from the real requirements of the Constitution. They are instead the fruit of well-established but still erroneous constitutional “doctrine” created by courts and wrongly acquiesced in by the public. Such doctrine, though decades old and now accepted by both conservative and liberal jurists, must be reconsidered if our governing institutions are to maintain any ability to enforce reasonable standards of public discourse.

The First Amendment, as originally understood, provides no shelter for Westboro’s antics. America’s founding generation—both ordinary citizens and legal elites—drew a distinction between liberty and license. That is, they recognized a difference between, say, the use of freedom of speech, on the one hand, and its abuse, on the other. There can be no genuine doubt that they would have classed Westboro’s outrageously lacerating rhetoric—“Thank God for Dead Soldiers,” “You’re Going to Hell”—in the second category and would have accordingly judged it outside the protection of the First Amendment’s speech clause, which was intended to protect a robust public debate, conducted according to civilized standards of decency.

As recently as a century ago, this Founding understanding was at least tolerably expressed in the Supreme Court’s approach to free-speech cases. This approach was governed by the “Bad Tendency Test,” which applied a standard of reasonableness—or what came to be called “rational basis review”—to laws regulating speech. The courts did not think themselves authorized to strike down speech laws if they suppressed speech that the legislature reasonably could  have considered socially harmful, or as having a “bad tendency.” The Bad Tendency Test was guided by the courts’ presumption that duly enacted laws were constitutional and that the burden of proof rested on those who sought to overturn them, a presumption that informed American judicial review from the beginning. Thus citizens who challenged speech laws were obliged to argue their unconstitutionality by showing that they were merely arbitrary or that they lacked any reasonable relation to a legitimate government responsibility.

The Bad Tendency Test, however, has long since been discarded by the Supreme Court and replaced with other standards, which make it almost impossible for the public to enact laws protecting reasonable and decent standards of public speech and conduct. In the early and middle twentieth century, the Court moved to the “Clear and Present Danger Test,” first devised by Oliver Wendell Holmes, Jr. This test held that government could only restrain speech when it was accompanied by a clear and present danger that would lead to other evils—evils that the government has a right to prevent. This test was then superseded by one even more protective of speech, the Imminent Lawless Action Test, which held that speech only could be controlled if it were uttered in a context where it was likely to lead to an unlawful act.

Moreover, the rise of these tests was accompanied by the Court’s rejection of the traditional presumption of constitutionality in a growing number of areas, including that of laws that regulate speech. It embraced the view, first developed by liberal free-speech absolutists such as Hugo Black and William O. Douglas, that speech enjoys a “preferred position” in our system of constitutional values. Accordingly, the Court began to apply various kinds of “heightened scrutiny” to laws impinging on speech, demanding more and more that the government demonstrate their necessity.

This modern approach to freedom of speech makes it almost impossible for our society to maintain a decent standard of public discourse and public conduct. Laws seeking to enforce such a standard must now face the Supreme Court’s rejection of presumed constitutionality. They approach the bar as constitutionally guilty until proven innocent, so to speak. Moreover, the substance of the modern speech tests tends to disfavor the very idea that society has any interest in protecting the moral quality of its public discourse. Civilized societies—even societies that must be regarded as free by any reasonable historical standard—always have recognized that some forms of expression are harmful to individuals and to the common good. Yet the Court’s modern approaches—preoccupied with clear and present dangers, or imminent lawless actions—deny such moral common sense, insisting instead that speech may only be regulated when it threatens some other harm beyond itself.

One is tempted to call Westboro’s conduct barbaric—until, that is, one realizes that this would be unfair to barbarians. For even the most unrefined societies in history would regard it as unacceptably disgraceful to make a political circus of the ceremonies by which a family buries its dead, all the more so when those dead are society’s defenders. It is sadly ironic, then, that the American practice of judicial review, itself a great achievement of civilization, has been turned into a tool for vindicating behaviors that are worse than barbaric—pornography, child pornography, and now Westboro’s profanation of funerals.

Most Americans, I think, sense this irony and wish it were otherwise. Indeed, the enactment and popularity of laws such as the Nebraska Funeral Picketing Law point to a public understanding that some forms of expression do harm and contribute nothing of value to our public discourse. Contemporary constitutional doctrine may impede the public from acting on such an understanding, but such doctrine, in this area at least, deserves none of the deference with which the public usually treats it. For, again, the Founders shared the commonsense view that some expression is an unjustifiable abuse of speech. And there is no reason to think that those who framed and ratified America’s Constitution intended to authorize a judicial review that treats laws protecting decent standards of speech and expression as presumptively unconstitutional.

In order to vindicate the public’s reasonable authority to protect the moral quality of our public discourse, citizens should seek to roll back the modern Court’s speech doctrines; they should elevate jurists who are guided by the Constitution and judicial review, as they were originally understood, rather than by judge-made doctrines whose application is virtually indistinguishable from judicial activism. If we do not do this, then the judgment implied by the question “Is nothing sacred?” will rightly fall not only on outrageous provocateurs and their judicial enablers, but on the country itself.

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

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This observation, of course, does not itself obviate the call for a balanced budget amendment, nor does it demonstrate that those who want it are not true disciples of the Founding. It is possible that circumstances have changed and that a balanced budget amendment is now necessary to realize those basic principles, such as limited government, to which the Founders were committed. Nevertheless, for those who respect the Founding and seek to be guided by it, the fact that such an amendment would take away or restrict a federal power that the Founders thought necessary should be a cause for hesitation and further reflection. Before deciding to support a balanced budget amendment, we ought to ask: why did the Founders empower the government to borrow?

Here we might turn with particular profit to that Founder most associated with the establishment of America’s public finances, the first Secretary of the Treasury, Alexander Hamilton. Upon taking office, Hamilton was confronted with an infant republic, saddled with considerable debt from the revolution and far behind in its repayment obligations. In late 1789, the House of Representatives charged him with devising a plan to put the nation’s finances back on a sound footing, and he responded with his masterly and much-admired Report on Public Credit; Congress subsequently adopted its recommendations. While the Report’s primary purpose was to provide a financial plan, Hamilton, seeking perhaps to educate public opinion and influence the views of legislators, opened the Report with some general reflections on the importance of public credit. It is here that we might gain some insights to enlighten the contemporary debate on the balanced budget amendment.

What, then, would Hamilton think about the balanced budget amendment? I think it is fair to say, on the basis of the Report on Public Credit, that he would not have approved of it. I do not intend here, however, merely to appeal to Hamilton’s authority. The Hamiltonian arguments for public credit have a force of their own, because they are based on the common experience of nations and on the wisdom of America’s founding principles themselves.

Before bringing to light the incompatibility of a balanced budget amendment with Hamilton’s arguments in the Report on Public Credit, it is worth noting that this incompatibility does not in any way suggest that Hamilton would approve, on the other hand, contemporary liberals’ approach to public borrowing. In the Report, Hamilton contends that public borrowing is to be undertaken to meet certain “exigencies” or “emergencies” that inevitably arise in the life of nations—exigencies including, but not limited to, war. Hamilton’s critics at the time regarded him as too complacent about public debt, but his position is certainly a far cry from the present liberal tendency to use public borrowing as an ordinary tool of policy, to be employed on a continual basis to fund government expenditures that are perfectly predictable. Indeed, Hamilton concludes his Report by admonishing those who think that a “public debt is a public blessing,” and claiming that it is only so if the debt is accompanied by means to extinguish it. Hamilton’s argument, then, does not point to a continually growing public debt. Indeed, he warns that a nation that finds itself more and more in debt over time will be imperiling the pubic credit and thus, by inviting higher interest rates, impairing the nation’s ability to borrow advantageously when genuine necessities arise. In this light, we can see that Hamilton’s arguments predict the kind of difficulty into which many Western governments have gotten themselves through undisciplined borrowing.

Why, then, do Hamilton’s principles seem to condemn a balanced budget amendment to the Constitution? Though Hamilton claims that public borrowing should be undertaken in response to unforeseeable “exigencies” or “emergencies,” he nevertheless claims that public borrowing is a “necessity.” This is the case because, while the exact nature of such exigencies cannot be known in advance, we can know, with great confidence, that they will arise, in one shape or another, and that they will overtax the ordinary revenues of the government. We know this, he indicates, from the experience of nations. Even the wealthiest of them find themselves, at times, in need of credit, especially in times of war. Here, again, is food for thought for the present proponents of a balanced budget amendment. Most of them regard themselves as conservatives. Conservatism, however, involves respect for what experience has to teach about politics, and as Hamilton observes—and he is surely correct—recurrence to public borrowing is an almost universal practice of modern states, a fact that should suggest, to conservatives at least, that the practice is to be disciplined by prudent governance but not forbidden by the nation’s fundamental law.

To this, the proponents of the balanced budget amendment might respond that it can be crafted in such a way as to allow for public borrowing in cases of war or crisis. As a matter of fact, such an exception is currently being discussed as part of any balanced budget amendment. Such an exception, however, would not solve the problem. Depending on how it were framed, it would accomplish either too much or too little. On the one hand, it would surely be foolhardy to write the amendment in such a way as to allow public borrowing only in cases of war, because it does not take too much imagination to summon to mind many potential crises short of war that might be addressed best through public borrowing. Hamilton spoke of public credit as a necessity in relation not only to war but also to other exigencies that might require the government quickly to raise a lot of money. Such exigencies are no less probable today than they were at the time of the Founding. To take two obvious examples: a violent natural disaster or a widespread epidemic might cause terrible damage to the nation unless met with a quick public response. Yet government might not be able to raise the necessary funds in a short amount of time in the absence of a power to borrow.

Moreover, an inability to borrow would not only hamstring the government in responding to grave public evils; it might also prevent the government from seizing positive opportunities that could produce public benefits for generations. America might, at some point, have a chance to purchase some valuable new territory, perhaps rich in natural resources, that will enhance the nation’s prosperity. Such a purchase, however, might require an immediate transfer of money that would be impossible without the ability to borrow.

One could, of course, try to avoid all of these problems by framing the necessary exception broadly enough in the language of a balanced budget amendment. The amendment might, for example, allow public borrowing not only in cases of war but also in cases of public crisis. But if a narrowly drawn exception accomplishes too much by preventing borrowing when it is really needed, a broadly drawn exception would accomplish too little and would, in fact, make the amendment useless for all practical purposes. To borrow Hamilton’s language from his critique (in the Federalist) of a constitutional protection for freedom of speech, there is no definition of public crisis that could be included in a balanced budget amendment that would not allow “the utmost latitude for evasion.” In other words, a definition broad enough to allow the government to borrow in all justifiable cases would equally empower it to borrow at will for whatever causes a majority of both Houses of Congress would approve.

In view of these Hamiltonian considerations, the balanced budget amendment appears misguided. The proponents of a balanced budget amendment might instead try to discipline borrowing by establishing a serious procedural obstacle to incurring debt. For example, the amendment might require a two-thirds majority of each House to authorize borrowing on behalf of the public. Based on the American experience, it is not clear that such a requirement would seriously deter the government from incurring new debt. In the Senate, the filibuster already creates a supermajority requirement (of three-fifths) for increasing the nation’s debt, yet debt-ceiling increases have routinely passed the Senate. Indeed, debt-ceiling increases have been routinely enacted with overwhelming support in both Houses of Congress. In the most recent, and most hotly contested, debt-ceiling debate ever, 62% of the House of Representatives and 74% of the Senate voted to issue more debt.

One might try for an even more stringent requirement—calling for, say, a three-fourths vote in each House of Congress—but this would only exacerbate an already serious failing in any supermajority requirement: namely, any supermajority requirement is anti-majoritarian, and the higher the bar is set, the more anti-majoritarian it is. A balanced budget amendment framed in this way thus strikes at one of the vital principles of American republicanism: majority rule. It would be a step backwards in the direction of the Articles of Confederation, which required supermajorities for important actions of the Federal government. As Hamilton noted in the Federalist, this requirement effectively allowed any determined minority to dominate governance, at least negatively, by defeating measures that enjoyed majority approval. With a balanced budget amendment, the evil would be more confined but still considerable. It would, after all, give a considerable minority power over the fiscal measures of the government, which, in the end, touch on the government’s ability to execute everything it does.

In light of Hamilton’s concerns and recommendations, the principles of which contain timeless wisdom for our nation, the balanced budget amendment appears to be a well-intentioned but ill-considered proposal.


Carson Holloway is a Political Scientist and the author of, most recently, The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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In the present conflict, this temptation has been most powerfully felt by, and has most successfully coaxed to action, the American left. In recent weeks, liberal legal and political commentators have claimed that, should Congress fail to raise the debt ceiling, the President, in order to prevent default, would be constitutionally authorized to incur new debt on behalf of the United States. Defenders of this idea pointed to the Fourteenth Amendment, which states that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This language, however, cannot plausibly justify the power some have claimed for the President.

The Amendment speaks of debt “authorized by law,” thus creating a heavy presumption that in our system of government, public debt can be incurred only by an act of the legislative power. This, indeed, is the explicit sense of the Constitution in Article I, Section 8, which provides that Congress “shall have the power . . . to borrow money on the credit of the United States.” On a plausible reading, the Fourteenth Amendment provides that the debt of the United States may not be repudiated. That only means, however, that should the government fail to make good its obligations, its creditors could take their grievance to the Courts to get their claims lawfully enforced. The Amendment says nothing in general about how the monies to pay the debt should be raised, and it certainly is completely silent on any executive power to raise such monies. It therefore contains nothing to modify or repeal the express provisions elsewhere in the Constitution that only Congress has such an authority.

Indeed, Article I, Section 8 of the Constitution gives Congress not only the power to borrow money on the credit of the United States, but also the power to “lay and collect taxes, duties, imposts, and excises, to pay the debts” of the United States. Therefore, if the interpretation advocated by the President’s partisans in the present dispute were correct, it would equally prove that the President, to avert default, could impose new taxes. Surely this implication is sufficient to bring to light the radically unconstitutional nature of the presidential power that is being suggested. Indeed, if the President may issue debt to prevent default when Congress will not raise the debt ceiling, then there is nothing to prevent him from vetoing whatever debt ceiling increase Congress might enact and then raising the revenues on his own authority and spending them according to his own discretion. To affirm the power of the President to issue debt would be indistinguishable from denying Congress the power of the purse, and would accordingly constitute a giant leap in the direction of one-man rule of our nation’s finances.

It is also worth noting that this expedient, which is presented as a way of preserving the credit of the United States and preventing the evils that would arise from a default, would, in all likelihood, do the reverse. Those who defend the idea note that even a temporary default on the nation’s debt payments would drive up rates of interest and make the public debt even more crushing. Continued borrowing will be necessary for the short and even mid-term, and new lenders would, in light of such a default, demand greater compensation for the now much greater risk of a future default. This analysis is correct, but the issuance of executive-authorized debt would do nothing to address it helpfully. The worst thing you could say about debt incurred on the authority of the President alone is that it is absolutely invalid and therefore not worth the paper on which it is printed. On the other hand, it is possible that the courts, in the end, might uphold the validity of such debt despite its obvious constitutional infirmity. It is possible, but not certain. Accordingly, the best thing you could say about executive-authorized debt is that its value is highly questionable and that it might never be repaid. In view of these circumstances, which will be evident to anyone in a position to lend to the government, executive-authorized bonds would have to command a very high rate of interest to compensate for the real possibility that they would never be repaid, and the near-certainty that if they were repaid, it would be only after a costly and uncertain process of litigation—one in which the Congress of the United States might be contending against their validity.

Unfortunately, in the debt ceiling controversy, the American right has also succumbed to the impulse to politicize constitutional interpretation, although not as brazenly as has the left. In response to the above interpretation, some conservatives have claimed that the Fourteenth Amendment does not create any executive authority but that it instead limits it, that it in fact requires what President Obama and his supporters surely do not want: namely, it requires the President, faced with insufficient revenue because of Congress’s refusal to raise the debt ceiling, to use present tax revenues to service the existing debt before paying for any other government programs. This interpretation was advanced, for example, by Republican Senator Mike Lee of Utah.

This, too, is an overreaching interpretation. The language of the Fourteenth Amendment, read impartially, does not really constrain executive discretion in this manner. Again, the pertinent passage holds that the “validity of the public debt of the United States, authorized by law . . . shall not be questioned.” This passage certainly means that the public debt cannot be repudiated by the government of the United States, but it does not prescribe any specific course of conduct for a president confronted with government revenues unequal to government commitments. A president in that situation would find himself with insufficient resources to meet all legislatively authorized objects; in the absence of legislation specifically constraining his choices, he would be free to use his own discretion as to which public obligations should be paid for first and which should, temporarily, at least, go unpaid. He might well decide to pay for other government programs before paying on the debt service. The exercise of such discretion would in no way deny or question the “validity” of America’s public debt. It would merely represent a temporary concession to a real and insuperable necessity: the absence of revenues with which to meet all the obligations Congress has authorized.

This is not to deny that there are powerful prudential and moral reasons to treat the public debt as having a claim on revenues prior to that of any other governmental obligations. After all, by damaging the nation’s credit, missed debt payments will likely do more harm to the national interest than, say, postponed expenditures for authorized programs, or even delayed social security checks. Also, the moral obligation to pay the public creditors is more pressing, because the government’s relationship to them is contractual. That is, it has promised to pay them back on a certain schedule, while other government programs represent more of a decision to execute a certain policy than a promise to specific individuals. Nevertheless, these prudential and moral considerations cannot be understood to impose a constitutional constraint on the discretion of a president faced with inadequate revenues. After all, one can easily conceive some public needs—such as defense or intelligence—that a prudent president might place even before paying the nation’s creditors. And once we concede this much discretion, there is no credible constitutional principle on which to limit that discretion at all.

Such politicization of constitutional interpretation, whether of the left or the right, threatens deep harm to our way of life as a nation committed to constitutional government. The point of the Constitution is to foster energetic but moderate government that can secure the common good while protecting fundamental liberties. It can only achieve that worthy end, however, if its provisions have a stable meaning that is largely immune to political perversion. Put more simply, the Constitution is meant to establish the rule of law, but there can be no rule of law in any meaningful sense when the fundamental law is routinely subjected to implausible interpretations that are pressed for the sake of temporary political advantage.

Resisting the politicization of the Constitution also has a bearing on our nation’s financial and economic fortunes. The credit of the United States reached its unsurpassed quality not only because the government has reliably paid its debts, but also because it has a system of laws, including the fundamental law of the Constitution, that renders the government’s behavior more regular and predictable than that of most other nations in the world. When we bend the Constitution to passing political purposes, however, we introduce an element of anti-constitutional banana-republicanism into what is meant to be a government of constitutionally delegated and distributed powers. We thus strike deeply at our reputation as a nation of laws, and that reputation is no less essential to its credit than its record of repaying its debts. Consider this in relation to the liberal claim that the Fourteenth Amendment authorizes the President to issue debt. By attempting to do so, he might succeed in temporarily making certain immediately pressing debt payments, but he would at the same time render the general principle of debt-repayment questionable. After all, if one can ignore a constitutional provision as clear as that which empowers only Congress to borrow money on the nation’s credit, one could just as easily ignore the Fourteenth Amendment’s provision that the validity of the nation’s debt shall not be questioned.

The temptation to politicize the Constitution is understandable. Everyone who is seriously engaged in politics passionately wishes for his side to prevail, and so deeply desires to impress the Constitution into the service of his cause. Nevertheless, for the sake of maintaining a free and prosperous polity under the rule of law, this temptation should be resisted with a resolution more than equal to it.


Carson Holloway is a Political Scientist and the author of, most recently, The Way of Life: John Paul II and the Challenge of Liberal Modernity.

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At its inception, the “gay rights” movement could reasonably present itself as a struggle against societal oppression. Forty years ago, American law in most states punished homosexual acts as criminal offenses. In many cases the penalties attending such laws were severe. In Bowers v. Hardwick—the 1986 Supreme Court decision upholding Georgia’s anti-sodomy statute—Justice Lewis Powell observed with understandable concern that the law at issue in that case permitted a sentence of up to twenty years in prison for the commission of a single homosexual act. In addition to such a legal landscape, homosexuals confronted a rather censorious culture. Mainstream America not only looked upon homosexual acts with disapproval, but also treated homosexual persons as objects of ridicule (at best) and hostility (at worst).

This is not to concede the claim often deployed by gay rights activists that such traditional laws and mores were based upon nothing but an irrational and malicious hatred of homosexuals. Such a claim unjustly overlooks ancient philosophical and religious beliefs that deeply influenced the Western understanding of the purposes of human sexuality, an understanding that included principled grounds upon which to view homosexual acts as morally disordered. It is, after all, hardly plausible that such beliefs were invented for no other reason than to justify hatred of homosexuals. It is to admit, however, that society’s earlier strictures against homosexuality could reasonably be viewed—even by those who still today disapprove of homosexual conduct—as uncharitable and excessively punitive.

Homosexuals today face a markedly changed legal and cultural environment. Criminal anti-sodomy statutes, seldom enforced in the first place, have now been declared unconstitutional by the Supreme Court in Lawrence v. Texas (2003). Moreover, the Lawrence decision has been greeted by very little protest even from the most conservative defenders of traditional sexual morality, most of whom, despite their disapproval of homosexual acts, have no interest in seeing such acts punished as crimes. Indeed, American culture overall is more tolerant of homosexuality now than it has ever been. The ridicule and anger that homosexuals once faced is no longer mainstream but is now itself the object of mainstream disapproval.

Despite these changes, the gay rights movement persists. Having succeeded in changing American law and culture to such a remarkable extent in such a short time, it has moved on to a new quest, the quest for same-sex marriage. This new goal is different in kind from the ones already achieved: it is not so much a demand to be freed from evils imposed by society as it is a demand for positive public benefits, specifically the benefits that attend marriage. It is a mistake, however, to think that the same-sex marriage movement is aimed primarily at acquiring the material benefits and legal prerogatives that accompany publicly recognized marriage. The aim, rather, is equality of public recognition or approval.

This is most obvious in the ongoing federal lawsuit brought against California’s constitutional provision defining marriage as a union of one man and one woman, a suit that has no other object but equal recognition of—that is, equal public status or honor for—homosexual relationships. California already has a law recognizing the domestic partnerships of committed homosexual couples. That law affords homosexual relationships some measure of public status, and it bestows upon them the same legal benefits as heterosexual marriage. The extent of California’s legal “discrimination” against homosexuals, then, is that the state has sought to reserve a traditional and honorable title for heterosexual unions. This is all that is at issue in the Proposition Eight lawsuit, and it demonstrates that the aim of the same-sex marriage activists behind it is equality of public recognition.

It is not clear, however, that the quest for same-sex marriage offers any substantive good to those on whose behalf it is so insistently demanded. Put another way, it is hard to see why such an absolute equality of public recognition should be essential to the happiness of homosexuals. Let me explain.

The strongest argument against same-sex marriage—in the sense of the argument with the deepest philosophic roots, or the argument that gets to the most fundamental issues at stake—is that homosexual activity is contrary to the natural law. This argument is either true, or it is not. If it is true, then publicly sanctioned same-sex marriage will contribute nothing substantial to the happiness of homosexuals. There are various understandings of natural law, but all present the natural law as a reality that exists independent of human opinion, a rule for human flourishing that human beings can ignore only at their own peril. On this view, the real issue in human happiness is the moral quality of our lives and not how they are regarded by society at large. As Socrates explains to his young interlocutors in Plato’s Republic, the actual being of the soul, and not its mere seeming, is decisive for human happiness. That is to say, happiness is the fruit of the proper functioning of the human soul, so that character, and not reputation or opinion, is the source of genuine flourishing. On this understanding, Socrates explains, a just soul, one ruled according to reason, is happier than an unjust one, regardless of whatever praises are heaped upon the successfully unjust man by a corrupted public opinion.

Accordingly, if homosexual conduct really is, as its natural law critics contend, a perversion of human desires and capacities, a wrenching of them away from their natural purposes, then such conduct will be a source of frustration and unhappiness regardless of whether society bestows its “recognition,” and hence its approval, on it. On this view, there is nothing of substance to be gained from same-sex marriage even for homosexuals. Indeed, if traditional natural law theorists are correct in their assessment of homosexual conduct, then same-sex marriage would be not only pointless but positively damaging, to the extent that it could mislead people to their own harm by bestowing a spurious respectability on an objectively disordered way of life.

But of course the proponents of same-sex marriage adamantly deny the truth of the traditional natural law critique of homosexual conduct. On the contrary, they hold that this natural law critique is, despite its philosophic pretensions, a mere prejudice with no basis in nature or reason. For them, homosexual relationships are naturally enriching to those who desire them, and for that reason they deserve the same public recognition that heterosexual unions enjoy. Once again, however, Socrates’ point about the priority of nature to opinion, or of being to seeming, of soul to reputation, indicates that, if this view is correct, same-sex marriage would be nothing more than a needless addition to a naturally fulfilling undertaking.

In Socrates’ time, the philosophic life was largely held in disrepute, thought to be the province of the unmanly and the politically unserious. According to Socrates, however, this negative reputation posed no serious impediment to his happiness precisely because the pursuit of wisdom is by nature a source, indeed the highest source, of human happiness. To take a less lofty example, contemporary American society loads massive amounts of attention and honor on sports at all levels, and hardly any at all on chess. This huge disparity in recognition, however, makes no difference at all to the true chess lover: precisely because he experiences chess as fulfilling his natural faculties and desires he has no interest in what other people think about his love for the game. Indeed, if the supposed lover of chess were to demand indignantly that his activity deserves recognition on a par with other games, we would rightly suspect that there is, in fact, some deficiency in the intrinsic satisfactions of chess that he seeks to make up through the more superficial satisfactions of recognition or public honor. In sum, if our activities are the genuine seat of happiness, then the quest for “recognition” of same-sex unions is really just the pursuit not of a reality but of a mere appearance.

The preceding argument does not hold that reputation is a matter of complete indifference. We are sociable beings. Hence we crave honor and feel the sting of disgrace. Accordingly, gays would be pursuing something of serious value if they were trying to overcome disgrace. But they do not now live in disgrace. Their lives are now viewed as a legitimate minority alternative. Their being known as homosexuals does not preclude their winning public recognition on other grounds. They are, again, merely seeking equality of public recognition. But this is not a making up of some serious deficiency, and it is in fact the kind of mild lack that is endured by everyone who pursues some love that is tolerated but not wholly understood or endorsed by the public at large. (We might also add that it is strange for a movement that began by presenting itself as a bold repudiation of conventional morality now to be demanding conventional recognition.)

There is, moreover, a further emptiness in this quest for equal recognition. The progress of same-sex marriage in American politics has been almost entirely the result not of legislation but of litigation. The final, national victory of same-sex marriage, if it comes, will come as the result of a ruling of the Supreme Court of the United States issued not only without the consent of a majority of Americans, but even against the legally expressed will of majorities in a majority of states. Public recognition of same-sex marriage is demanded as a sign of equal public acceptance, but the mode in which it is being sought ensures that the acceptance will be fraudulent. It will be in fact not a public acceptance but the acceptance of a legal and political elite that is able to force its will on the public.

Given the substantial—unprecedented, in fact—toleration and freedom that homosexuals already enjoy, and given the inevitable sense of grievance that a victory through litigation will produce in the defenders of traditional marriage, the proponents of same-sex marriage should ask themselves whether it is really worthwhile to exert themselves so much, and to so roil the politics of their country, in the pursuit of absolute equality of recognition.


Carson Holloway is political scientist and the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

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This framing of the issues is generally popular, and it is especially welcome to those who favor a values-first, democracy-promoting policy for America. Who, after all, wishes to be so petty and mean as to admit to favoring our selfish interests over our universal values? This framing of the issues, however, oversimplifies and so distorts our understanding of American values and their relationship to foreign policy.  We must resist such oversimplification and seek clarity on the perennial question of how America’s founding principles should influence its conduct in international relations.  Such an inquiry need not, and is not intended to, dictate any particular response to current events in the Middle East, whether of intervention or non-intervention with the aim of promoting democracy or American national interests.  The point, rather, is to suggest a framework for thinking about a range of key considerations besides the promotion of democracy that must guide our foreign policy.

In the first place, the easy dichotomy between our interests and our values obscures the truth that, within certain limits, a nation’s interests are its values. To put it more clearly, a nation’s government has a moral obligation to defend the nation’s interests. National interests are not simply morally unimportant selfish concerns but a matter of serious obligation to the government to whose care those interests are entrusted. This truth can be illustrated by drawing an analogy between the family and the political community. A man’s values may tell him that abortion is a grave evil. To the extent that he acts on these values, doing what he reasonably can to end abortion, he is morally praiseworthy. But if this man is a husband and father, and if his pro-life activities leave him bankrupt and unable to support his own wife and children, he has gone too far. His apparently heroic resistance to abortion loses its heroic quality, in fact shades into injustice, to the extent that he deprives those entrusted to him of a support to which they are entitled. This is true despite the fact that the things that he has denied his family are material things. It is not mere selfishness to provide those things to people who are owed them.

So it is with nations. America may firmly believe that democracy is the best form of government, and that movement toward democracy is just and good. None of this, however, justifies the government of the United States in regarding America’s national interests as a matter of mere moral indifference in comparison to the advance of democracy in a particular region, such as the Middle East. This is not to say that our own interests would justify our interference with a view to suppressing democracy and propping up wicked regimes, any more than the legitimate needs of his family would justify a man in making his living by working in an abortion clinic.  For both men and nations, negative obligations are more absolute than positive ones.  That is, we must never do evil, but we are not obliged always to collaborate in every good.  Accordingly, we are not automatically obliged actively to promote democracy, especially when the outcome of such a democratic movement is so uncertain for our own vital interests. To embrace this view, by the way, is not to introduce some alien, amoral political realism into an American political culture that has been formed by the moral and political principles of the Declaration of Independence. For this view of foreign policy, according to which the nation’s interests must be safeguarded, was held by leading founders, such as Washington and Hamilton, whose commitment to the principles of the Declaration is beyond serious question.

Indeed, the Declaration itself teaches us that democracy is not the only important American value. It therefore suggests that even to the extent that our fundamental values should govern our foreign policy, that policy’s overriding aim still cannot be the promotion of democracy. The Declaration does indeed proclaim the right of peoples to throw off existing governments and institute new ones according to their judgment, and it is precisely these passages that seem to demand our support for reform movements in the Middle East. But in the very act of asserting this popular right of revolution, the Declaration also invokes the ancient, sober virtue of “prudence,” which it says dictates that “governments long-established should not be changed for light and transient causes.” By noting this passage in this context I do not mean to diminish the oppressions that have been suffered by the people of the Middle East at the hands of their own governments, to say that the causes impelling the present protest movements are merely “light and transient.” Nevertheless, the Declaration’s invocation of prudence—a virtue aiming not at what is best but at what is the best attainable—reminds us that the badness of a government is never a sufficient justification for its overthrow. That grave action can only be justified if we can reasonably expect that the overthrow will result in something better than the existing order. And all political experience suggests that this consideration will give every thinking person pause.

Many of the most famous revolutions carried out in the name of the people have resulted in regimes as bad as, or even worse than, the governments they displaced. We need only name France, Russia, and China. No doubt the Mubarak regime was bad. Was it so bad that we can be assured that the new order must be better? The only honest answer to this question is that we cannot know for sure. If the people of Egypt believe that their attempt at democratic revolution will better their situation, then our part is not to interfere in their efforts. But we cannot be obliged positively to promote those efforts when we do not even know whether they will in fact lead to the establishment of democracy.

Finally, if we mean by America’s fundamental values those values that were held by America’s founders, we will find not only that those men were prudently aware that the attempt to institute a democracy might fail. They also believed that even a successfully established democracy might be, politically and morally, a bad thing. That is, they did not treat democracy as the greatest political value. Judging from the Declaration itself, as well as the surrounding discourse of the time, the founders viewed individual natural rights—to, for example, private property and religious liberty—as equally foundational, and perhaps even more foundational, than democratic self-government. They were, moreover, very much aware that these goods do not necessarily or even easily go together: that democracy often proves itself hostile to the natural rights of individuals, which is another way of saying that a democratic government is not a reliably just government. James Madison, for example, stated openly that the propensity of popular governments to trample on the rights of individuals and minorities was almost enough to require the friends of freedom to repudiate popular government. That requirement was avoided, he and the other founders believed, by the discovery of new principles of political science that could permit popular rule while simultaneously moderating it, or could permit majority rule while avoiding majority tyranny.

This possibility, however, depended on the establishment of a rather sophisticated system of institutions—such as separation of powers, bicameralism, an independent judiciary—the success of which they regarded as far from certain even in the case of America. Can such institutions be established in the newly democratizing nations of the Middle East? Again, the only sober answer to such a question is that we cannot know for sure. To that extent, whether democracy will turn out to be a blessing or a curse to that region is unknown to us. This, again, is certainly no reason to try to impede the advance of democracy there. But it is a more than sufficient justification for resisting the claim that our values oblige us actively to support it.

It is easy to understand why many Americans would sincerely believe that American values require America to promote democracy. Nevertheless, such a simple judgment in fact has little grounding in the sober and subtle moral and political understanding of the men who actually founded the American republic.


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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Many of Tollefsen’s critics frame their arguments in such a way as to suggest that his position is that of a moral fanatic. His condemnation of falsehood, they suggest, manifests a thirst for moral purity that is not only needless but morally irresponsible. This suggestion emerges most clearly, of course, in relation to the test case around which much of the argument has been conducted: the case of the person sheltering Jews from the Nazis, who must decide what to say to the investigating Gestapo agent.

It is true that Tollefsen denies the morality of a deliberate falsehood told even in these grave circumstances. Nevertheless, some of his critics imply that Tollefsen’s moral judgment on this question involves an unqualified moral condemnation of those who lie in these circumstances, and even that he thinks they would be worthy of punishment. In fact, Tollefsen’s condemnation falls precisely upon the act of deliberate falsehood. That act has the character, on Tollefsen’s view, of an immoral means chosen in pursuit of a most moral and noble end—and chosen, one might add, under the terrible pressures of life under a murderously totalitarian regime. There is nothing in such a judgment that would demand the punishment of the person who had lied in those circumstances. Indeed, there is nothing in such a judgment that would in any way preclude loading such rescuers with the greatest public honor—honoring them not for the lie to which they had wrongly but understandably succumbed, but for the goodness of their undertaking as a whole.

Tollefsen’s critics indict him as follows: he would not assert a falsehood even to save innocent lives. This framing of the argument suggests that it is open to the person in this horrible situation to save innocent lives by resorting to falsehood. But this is almost certainly a distortion—convenient to Tollefsen’s critics—of any real situation. The person who resorts to falsehood in such a case may hope to save innocent life, but he can have no assurance that he will do so, or that this expedient will work more effectively than others that do not require false assertion. If the Gestapo are at your door on a hunt for hidden Jews, they are very likely to search your home no matter what you say. The person who uses false speech in such a situation does what he knows to be ordinarily wrong. He does not and cannot know that his falsehood will save lives or that it will be more likely to save lives than some other response that does not require outright falsehood, such as artful but truthful misdirection or evasion.

Tollefsen’s critics also take a too-easy course in playing rhetorically to a gallery of observers that they think—probably rightly—will be predisposed to agree with them. Thus Peter Kreeft says not only that Live Action’s deeds were morally right, but that they were obviously morally right. This is as much to say that not only is Tollefsen wrong, but he is obviously wrong. Similarly, Arkes repeatedly turns to rhetorical questions—”could one honestly profess to believe . . .?” “do my friends really think . . . ?”—designed to imply that Tollefsen’s views are rather clearly beyond the pale of reason. These tactics give the impression that Kreeft and Arkes are appealing to the moral common sense of the human race. I do not doubt that they sincerely think that this is what they are doing. But it is really not so simple.

One could restate the question as follows: “Are you seriously telling me that a gentleman would never lie?” If one posed that question in certain European cultures one thousand years ago, one would find not a few responses in the affirmative. Moreover, these affirmations would come not only from religious fanatics—monks in cloisters or hermits in the desert—but from worldly men, not the most earnest Christians, but men committed to a notion of gentlemanship bound up with absolute standards of conduct. And these men would be as puzzled at any doubt of the true gentleman’s unswerving disdain of falsehood as Arkes and Kreeft are at Tollefsen’s position.

To be sure, none of this shows that Tollefsen is right. It does show, however, that in their efforts to dismiss him out of hand Kreeft and Arkes are appealing not to the moral common sense of mankind as such, but to the moral sensibilities of a contemporary culture that is steeped in consequentialism and that therefore is already very predisposed to agree with them in this particular dispute. Here Tocqueville is most instructive. As he shows in Democracy in America, modern egalitarian societies are much inclined to a utilitarian, pragmatic morality. Such societies will tend to think it obvious that the destruction of innocent life is the greatest evil and that whatever seeks to avert it cannot be wrong. But Tocqueville also reminds us of an older, aristocratic morality—one held by men who were just as human as we modern democrats—according to which the greatest evil is willingly to violate certain standards of upright conduct, regardless of the consequences.

We would do well to consider the implications of the criticisms of Tollefsen. There is no doubting that Tollefsen’s critics are men of the utmost moral seriousness, and nothing can be more laudable than the efforts to save innocent life. Nevertheless, one who considers their arguments might well fear that they lead to a kind of well-intentioned but morally untethered Machiavellianism—the pursuit of morally good ends with no moral restraints on the means chosen. This concern arises first in relation to the ethical question immediately at hand. Of course it sounds humane and responsible to defend the telling of deliberate falsehoods to defend innocent life. But, one must wonder, where does it end? What is the principle of limitation here?

Hadley Arkes says that not every untruth is a lie, that the “untruth becomes a lie when it is directed to a wrongful purpose, as in deceiving for the sake of fraud and for the hurting of the victim.” We know that this means, for Arkes, that one may speak falsely in order to try to save the innocent. May we also speak falsely to prevent all lesser injustices, or to advance any worthy project that does not involve the hurting of the victim but that is really for his own good? Suppose the pro-life movement were one vote shy in the Congress of passing a bill that, by limiting abortion, would save innocent lives. Suppose further that there were a special election for the decisive seat, which happens to be in a liberal district or state. Should a clandestine pro-life candidate for that office falsely tell the voters that he is pro-choice and would never vote in favor of the pro-life bill, all the time intending to vote for it once elected? Can Arkes deny that a person who does such a thing, even in such a worthy cause, does something wrong and takes a kind of corruption into his soul?

This concern about the moral limits on the means we choose in pursuit of good ends, moreover, cannot be confined to the question of truth-telling, and one accordingly wonders whether some criticisms of Tollefsen sweep more broadly than their authors intend. Tollefsen belongs to a tradition of moral philosophy according to which there are some true exceptionless moral norms. This is also true, I believe, of his critics. Arkes says that “we don’t cast moral judgments solely on the basis of the gross description of the act,” but that we also take into account the surrounding circumstances. This is true, but if we believe in exceptionless moral norms then the act itself is always relevant and in some cases decisively relevant. On this view, there are some things, however few and narrowly defined, that one must never do. From this belief in exceptionless moral norms it would seem to follow that there are some things one should not do even to save the innocent. One wonders whether Tollefsen’s critics can accept this proposition.

Arkes concludes his response by contending that Tollefsen’s position on truth-telling is a form of moral and political irresponsibility that would disqualify him from occupying the presidency and taking charge of protecting his fellow citizens. After all, he points out, the infiltration of terrorist cells, necessary to protect American lives, almost certainly would require deliberate falsehoods that Tollefsen would regard as “intrinsically immoral.” Yet it is not hard to imagine that the infiltration of terrorist cells could also require other actions that would appear to violate exceptionless moral norms in the tradition to which both Tollefsen and his critics belong.

Getting inside a gang of terrorists might require entering into an illicit sexual relationship with one of them. It might well require participating in an act of rape or murder in order to demonstrate one’s genuine hatred for the movement’s enemies. Are such actions permissible? Do they lose their immoral character because they are done with a view to protecting the innocent? If so, is it really possible to speak of the inviolable integrity of the sexual act, or of the inviolability of every innocent person? Perhaps here as well it is appropriate to “call the question,” as Arkes insists.

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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Copyright 2011 the Witherspoon Institute. All rights reserved.

One might point to Christmas’s annual role in boosting the economy, but this would be superficial. Christmas is older than the large scale gift-giving (and hence gift-buying) that has become associated with it in recent decades, and Western Civilization is more than the contemporary commercial society that measures its health by yearly economic growth. More seriously one might point to the rich treasury of art and music that Christmas has inspired. Yet neither is this quite what we seek. While an undeniable boon, the art and music of Christmas is more a contribution to Western culture. As distinct from culture, the term “civilization” (which shares the Latin root of “citizen”) seems to imply a common legal framework, or at least a shared set of publicly acknowledged ethical principles. Has Christmas, then, made an important contribution to a still commonly valued moral core of Western Civilization?

I would suggest that the ethical core of Western Civilization—or at least a key principle by which it distinguished itself from what it regarded as savagery and barbarism—is respect for the dignity of humanity and of the individual human person. This is the moral principle underpinning the more obvious institutional characteristics such as the rule of law, constitutionalism, limited government, and division of social authority among various centers of power. All of these expedients share a common aim: limiting the power of some people over others, and especially limiting the power of the strong over the weak. This aim in turn is informed by the sense that all people deserve such protection, that they all possess a certain dignity that ought not be abused.

The celebration of Christmas has been a powerful teacher of the dignity of the human person. For Christians, Christmas is the feast of the Incarnation—the celebration of the moment when God became a man in order to live among men. It shows that God thought of human beings as worthy of being saved, and that he sought to save them by taking on humanity in a perfected form, thus opening the way to their own perfection. Christian belief in the Incarnation is thus inseparable from belief in the objective, and even transcendent, value of the human race as a whole, and of each human person as an individual.

Belief in the Incarnation further implies a certain egalitarianism that has also been important to Western Civilization. According to Christian teaching, all are sinners, and none can claim to be fundamentally superior to others in this important respect. Conversely, and more positively, God wanted to save all people, of all ranks, from their sins and to open the way to a lofty destiny for them all. Thus the Christian understanding of the Incarnation has been important in fostering the West’s sense that, whatever social order may require in terms of hierarchy and rank, there is an irreducible moral equality of all human beings: all are owed a certain respect, even the lowliest among us.

Moreover, the story of the Incarnation, the Christmas story, emphasizes this equality and powerfully presents it to the imagination. As the story goes, the God who became man chose to be born into a family of no outstanding social importance, one supported by a man who had to work with his hands. Jesus was born in circumstances of poverty, and his birth was first announced not to the princes of the earth but to the ordinary shepherds to be found at hand. As he grew to manhood and carried out his public mission, Jesus chose to continue to live, work, and teach primarily among the common working people of the world. According to the Christian story, God teaches not only by his doctrines but by his actions that all men are equal in their fundamental human dignity.

These lessons in equal human dignity have been planted deep in the Western mind over the centuries precisely by the celebration of Christmas. These are the constant themes of the aforementioned art and music, which, while never intended as political doctrine, are nevertheless pregnant with political implications. For, again, it is precisely because of the depth of its conviction that all people possess an inherent dignity that the West has been so averse to the idea that any people should possess arbitrary power over others, that any people should be able to use others as the mere instruments of their desires.

This is not to say that equal human dignity could never have been appreciated apart from the influence of Christianity on the West. Certainly many great philosophers—such as Aristotle among the ancients, or Kant among the moderns—have suggested, without appealing to revelation, that human beings deserve respect because of their rational capacity for moral responsibility. Nevertheless, it is surely uncontroversial to say that Christianity—and, accordingly, the celebration of Christmas—has been an important force for the popularization of the idea of equal human dignity. We do not sing songs each year about what we have learned from Kant and Aristotle, and it is difficult to imagine the practice becoming customary.

Indeed, it may well be that even those secular philosophies that recognize equal human dignity owe that recognition to the influence of Christianity.  While the idea is implicit to some extent in Aristotle’s thought, it was obscured by his acceptance of, or at least his willingness to accommodate, his culture’s subordination of women and practice of slavery.  The equality of human dignity is much more prominent in Kant, but Kant had the benefit of living and thinking in a culture that had already been influenced by Christian morality over a period of centuries.

Christian thinkers have long emphasized the moral elevation that the Christian teaching brought to the Western world. Augustine, for example, points in The City of God to the brutal aspects of the pre-Christian practice of war. Among the pagan Romans, he notes, it was commonplace to slaughter or enslave captives, practices that were regarded as unexceptionable to even the most enlightened and humane men of the time. Such harshness was gradually lessened, he contends, because of the progressive influence of Christian morality. Today we regard such practices with a proper outrage, but Augustine’s argument invites us to reflect on whether our increased humanity and restraint is not an inheritance from Christianity. Moreover, this is not merely the pro-Christian propaganda of Christian thinkers. For even Nietzsche, among Christianity’s most extreme philosophical enemies, admits (even as he condemns) the moral renovation wrought by Christianity. It effected, he claims, a revaluation of ancient values, standing the moral world on its head: where the pagan world celebrated the strength of the strong, Christianity displaced that understanding by demanding pity for the weak.

Could Western Civilization’s commitment to equal human dignity—a commitment that is approved by liberal and conservative, progressive and traditionalist, secularist and believer—have developed in the absence of Christianity?  It is impossible to say. We cannot rewind and run history over again from the beginning. The moral development of civilizations, the work of centuries and millennia, is not an experiment that can be replicated and its results confirmed. We can only say that the development of the idea of equal human dignity was bound up with the propagation of Christianity in the West, and that we cannot know for certain whether that moral idea can survive without its religious support. Perhaps this is reason enough for secularists to allow and even encourage the ongoing public celebration of Christmas as a religious holiday.


Carson Holloway is a political scientist and the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Copyright 2010 the Witherspoon Institute. All rights reserved.

The most fervent and rigid opponents of illegal immigration stress its illegality. They oppose any solution that includes an amnesty on the grounds that such a solution would make a mockery of justice and law by rewarding lawbreaking. This position has some merit, but, to borrow an expression from Aristotle, its partisans fasten onto a part of justice but not the whole.

In general, it undoubtedly tends to undermine the rule of law when those who have violated any law escape unpunished. For that matter, the issue posed by a legal amnesty is even more problematic, because it involves the public authority allowing those who are known to have broken the law to escape unpunished.

Nevertheless, it is not the case that an amnesty for lawbreakers is never permissible even in a society seriously committed to the rule of law. No less a proponent of the rule of law than John Locke held that government could legitimately decline to punish some crimes. After all, the purpose of the law is not only to punish the particular injustices committed in individual cases, but also to secure the common good of the whole community. Sometimes more damage to the common good comes from a rigorous insistence on legal punishment than would result from a policy of forgiveness.

By including a pardoning power in our Constitution, the framers of that document demonstrated they had grasped the wisdom of this element of Locke’s teaching. The government of the United States has historically exercised this power of prudently withholding punishment even from serious crimes, and has done so in ways that thoughtful people, calmly reflecting after the events, have approved. For example, President Ford pardoned President Nixon on the belief that a public trial of a former president would inflict unnecessary harm on the country. Those who took up arms against the United States in the American Civil War surely did more harm to the nation than illegal immigrants have done. Still, the government did not insist on prosecuting all Confederate officials and soldiers for treason—as the law would have permitted—because it was believed that a policy of leniency would lay the groundwork for a lasting civil peace.

If the considerations and precedents discussed above are to be taken seriously, an amnesty for illegal immigrants would not necessarily make a mockery of the rule of law.

The other side of the immigration debate latches onto a partial truth as well. In response to the inflexible demands of the anti-amnesty crowd, citizens that are more sympathetic to illegal immigrants and more supportive of amnesty as one component of “comprehensive immigration reform,” stress that most illegal immigrants have come to America only “seeking a better life.” Such rhetoric, however, tends to undermine the respect for positive law that is essential for any stable and flourishing society. It thereby poses an opposite, but no less serious, problem than that posed by the rhetoric of the legal rigorists on the other side.

In the first place, to say that illegal immigrants were only seeking a better life is to say that they were seeking some real good when they chose to break the law. This is true, but it is of limited relevance, because it is surely true of almost all lawbreakers. As Aristotle observes at the beginning of his Nicomachean Ethics, all men do everything for the sake of what is held by them to be good. The vast majority of human wrongdoing is done in the pursuit of genuine goods. It is the work of people pursuing permissible goals by forbidden means. One could say of most any thief that he was seeking a better life by his very crimes. To this extent, the rhetoric of those who favor an amnesty tends to create a presumption in favor of leniency for all lawbreakers.

The supporters of amnesty might well disclaim such consequences. They might hold that they do not intend to suggest that wrongdoing undertaken with a genuine good in view is to be dismissed as unimportant. Rather, by emphasizing that most illegal immigrants came to America only in search of a better life, they are trying to say that there was nothing intrinsically wrong in their decision to enter the country unlawfully. This is certainly true. Our immigration laws are merely positive law, with no direct natural law underpinnings. That is, they are based on no necessary moral truth that it would be unjust for the law to omit enforcing. Sometimes, the law reflects and enforces such a truth, as in the case with laws against theft and murder—actions that would be wrong even if the law did not forbid them. In other cases, we are confronted with things that, in Aristotle’s formulation, could reasonably be resolved one way or another, but only become just or unjust because the law determines the matter. In such cases society decides to forbid some action because the prohibition seems in some way useful, and not because it is forbidden by natural principles of right and wrong. Laws against illegal immigration surely fit into this category.

Precisely because entering the country without permission is not an inherently unjust action, the possibility of forgiveness, of non-enforcement of the law—that is, of amnesty—raises less difficult questions than would be raised by forgiveness of criminal actions that were also intrinsically immoral. Nevertheless, and contrary to what is implied by the easy resort to the reassuring claim that illegal immigrants came to America only “seeking a better life,” it is not the case that forgiveness for such lawbreaking poses no difficult issues. After all, any society depends for its well being on a host of merely positive laws, laws that regulate human actions with a view to a certain uniformity that could be justified as a social convenience, but that is in fact necessary to any healthy social order. Disregard even for such laws—especially when that disregard is publicly promoted—threatens a socially destructive anarchy.

For example, the obligation to pay a defined amount of taxes is an obligation of the positive law. There is certainly an important underlying moral precept—namely, that those who benefit from the services of the government have an obligation to support it to the extent that they can. Nevertheless, there is no natural moral precept to determine exactly how much any particular person should pay in taxes. The matter is determined entirely by the positive laws enacted by the government. Accordingly, one could truly say that a person who conceals part of his income in order to partially avoid taxation has done nothing intrinsically wrong, and that he has acted in pursuit of a “better life.” He may think that he and his family need the money more than the government does. But no one would suggest that such considerations call for an amnesty for tax cheats. For, as anyone can see, a tax system in which individuals are implicitly authorized to decide how much they will pay, in violation of the law’s requirements, is a short cut to social chaos.

Consider another example: the licensing of physicians. It is not strictly necessary for government to license physicians to practice or to punish those who practice without a license. Therefore, a man who does practice medicine without a license cannot be said to be doing anything intrinsically wrong. On the contrary, if he possesses real skills, but simply failed to complete the requirements for licensing, he may be doing a great deal of genuine good by healing the sick. Nevertheless, it would be folly to suggest on these grounds that it would be unjust for government to punish such a man. For the licensing requirement is intended not to prevent whatever good an individual might accomplish by practicing medicine without a license, but to ensure an overall high quality by requiring it. And that good could not be attained without enforcement of the licensing requirement against all who violate it, even those who may possess real medical qualifications.

Laws regulating immigration are analogous to those requiring the payment of taxes or the licensing of physicians. They regulate actions that are not themselves intrinsically wrong but that, if left unregulated, would in the aggregate threaten considerable harm to society. There is nothing wrong in moving from one country to another, but a country has many reasons to regulate such immigration. It must set limits, and such limits are of no effect if they are not enforced.

Our arguments over illegal immigration are framed in the simple terms to which the citizens of a democracy are naturally drawn. As Tocqueville observes, democratic citizens are often the slaves of political slogans because the very busyness of democratic life, the need of citizens to work to support themselves, precludes their ability to pay careful attention to political questions. Yet, as Aristotle observed, the kinds of things to which democrats are naturally drawn are not the things that are most useful in preserving democracy. The sort of public discourse to which democrats are most inclined is not the kind most likely to reveal the path of prudence. That path can only be found by resisting the temptation to moralistic sloganeering and beginning a full consideration of the ethical and practical aspects of all possible policies. Only by striving for such an elevated and serious public discourse can we both find the right way with regard to immigration but also preserve the mature understanding of the rule of law necessary for us to maintain a just and stable public order.


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

Copyright 2010 the Witherspoon Institute. All rights reserved.

But of course all other things are not always equal. There is a limit to the usefulness and reasonableness of habitual conduct. Given a large enough change in circumstances, the most helpful habits or policies may become harmful. Thus even Burke admits that a nation without some means of change is incapable of preserving itself. Such change, however, can be very difficult. A policy that has become habitual may no longer even be recognizable as an object of choice. It may become so fixed in people’s minds that it will simply not occur to them that it could be otherwise, even when new circumstances have arisen that undermine its usefulness.

America is currently confronting an economic problem almost unknown to the present generation: stubbornly high unemployment along with decreased participation in the labor force. The unemployment rate has held at or near ten percent of the workforce for more than a year. The rate of underemployment—which includes not only the jobless but also those with some work but who want to be working more—is even higher. Moreover, few economists predict significant relief any time soon. On the contrary, the consensus seems to be that even if the economy enters a persistent recovery, the decline in unemployment will be painfully slow. As one news report has noted, at the present rate of job creation, it will take another ten years for the economy to recover the jobs lost as a result of the recent recession.

Both major political parties insist that encouraging job creation ought to be the government’s first concern. Democrats emphasize increased government spending as a solution to the problem of unemployment, while Republicans favor tax cuts. Whatever else one may say about the merits of these approaches, they only address the problem indirectly. Their aim is to place money in the hands of citizens and hope that the increased capacity for consumption and investment will stimulate the creation of jobs. Both approaches are problematic to the extent that they threaten to add to the federal deficit, either by increasing government outlays or by diminishing revenues, thus running the risk of impeding economic vitality in the long run. It is ironic, then, that the debate between those who advocate government spending and those who favor tax cutting ignores an existing government policy that is both a direct impediment to job creation and that could be modified without fear of increasing the federal deficit: the minimum wage.

That the minimum wage contributes to unemployment is a matter of elementary economics and common sense. As everyone admits, a higher price for a given commodity tends to depress demand for that commodity. Raise the price of cars, and people will buy fewer cars, choosing to get along with the ones they already own. This is true of labor as it is for any other article of commerce. By artificially increasing the price of labor, the minimum wage deters some employers from offering employment, because they perceive that the work they have in mind is not sufficiently productive to justify the payment that the government requires. They choose to get along with the employees they have.

The minimum wage’s contribution to unemployment is not popularly appreciated, perhaps because its effect is displayed less in the destruction of existing jobs than in the prevention of potential jobs. When the government mandates an increase in the minimum wage, most employers will grin and bear it, keeping their existing workforce and seeking other ways to cover the cost. There is no denying, however, that this same increase will deter the same employers from offering new employment by making it more costly. Nevertheless, its effect on unemployment is no less real for being largely invisible.

Our current crisis of persistently high unemployment calls for some reconsideration of the minimum wage, a reconsideration that has, so far, been lacking, no doubt in part because of the habitual status of the policy. The economic principles discussed above are sufficiently well understood that a proposal to increase the minimum wage in the context of the current unemployment numbers would probably be denounced on all sides as the height of economic folly. Nevertheless, as a nation we seem not to have noticed that the same principles suggest that a decrease in the minimum wage could be expected to ease unemployment. Again, a gradually and irreversibly increasing minimum wage is so much a part of the policy landscape, and hence the very fabric of national life, that any alternative is almost unthinkable to many Americans. Our current situation seems to require that we try to think about what has hitherto been unthinkable.

This is not to say that we should entertain the possibility of repealing the minimum wage. Doing so would amount to a radical change in policy, the consequences of which could not easily be foreseen. While economic theory tells us unequivocally that the minimum wage contributes to unemployment, drastic attempts to bring policy into immediate conformity with pure theory seldom end happily. Here again the wisdom of Burke is apt: new circumstances call for a cautious and incremental modification of existing policies, not their wholesale alteration. All change will generate unintended consequences, but incremental change is likely to generate only ones that are few, small, and therefore manageable.

Taking these political and policy considerations into account, it ought to be possible to entertain the possibility of some limited change in the minimum wage reasonably calculated to mitigate its employment-suppressing effects. We might consider a policy that works no change for those who are currently employed and that diminishes, but does not eliminate, the minimum wage for newly created jobs. Perhaps it would be possible, for example, to reduce the minimum wage from $7.25 to $5.15 per hour, the rate as recently as five years ago. Such a modification would diminish an existing deterrent to new job creation, while not harming the interests, or risking the political wrath, of those who are currently employed. Moreover, it would, unlike spending increases or tax cuts, cost the government nothing and add nothing to the deficit. On the contrary, to the extent that it spurs job creation it will add to tax revenues.

It might be objected that such a change would tend to create jobs only for low-skilled, low-earning workers. On the other hand, such workers are often those who are hardest hit by recessions. Moreover, while the direct effect of such a policy would be to ease the deterrent to the creation of such jobs, the overall savings in labor costs would also encourage employers in the creation of higher-wage jobs as well. For example, by making it economically feasible for an employer to hire a team of minimum wage workers, a diminished minimum wage for new jobs might also enable the hiring of a supervisor for that team, an employee who would make more than the minimum. Besides, by establishing an artificial floor for compensation, the minimum wage tends to inflate even the wages for higher paying jobs. Conversely, then, a drop in the minimum wage can also be expected to allow a decrease in the wage that employers can offer for positions commanding more compensation than the minimum. It might at first seem paradoxical to suggest that a decrease in all wages could be beneficial, but, again, such a decrease can be desirable under conditions of continuing unemployment, since it would decrease the cost of creating jobs across the whole range of wage-levels. Indeed, some current commentary is beginning openly to acknowledge this fact, suggesting that the climate of opinion may be ripening for reconsideration of the minimum wage.

It might be further objected that such a policy as the one sketched above would invite employers to fire current low wage employees simply to hire new ones at the lower minimum wage. This possibility, however, is less an objection to reconsidering the minimum wage than an invitation to a cautious and deliberate approach to modifying it. In fact, such a predatory employment practice is precisely the kind of unintended but foreseeable consequence that can be anticipated and remedied by a sufficiently sophisticated analysis accompanying an incremental, as opposed to wholesale, change in policy.

In any case, my point is not primarily to defend this or any other specific policy recommendation. Which incremental modification of the minimum wage is within the bounds of policymaking prudence and political feasibility is a question best answered by economists and politicians. My point, rather, is that now—a lasting period of unacceptably high unemployment, with no relief in sight—is the time for such a question to be explored.


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

Copyright 2010 the Witherspoon Institute. All rights reserved.

It is often suggested that America must strive to be an “honest broker” between Israel and its Arab and Muslim adversaries. This expression seems intended to suggest that America must adopt a certain neutrality between the interests of the two sides in the conflict. At first sight, such neutrality seems appropriate. America has acted as a key mediator in the conflict for decades. And who would make use of a mediator who is partial to one side in a dispute?

The unswerving persistence of the desire for neutrality, however, suggests that it may be rooted in something deeper than perceptions of the policy requirements of a specific problem in international relations. In fact, the craving for neutrality seems to be grounded in the nature of the two dominant American theories of international politics, realism and idealism, and to reflect their problematically incomplete understanding of human nature and human relationships.

Despite their differences, realism and idealism both suggest that in some fundamental respect all nations are the same. Realism holds that all nation-states are primarily concerned with the maintenance and acquisition of power, which is to be used in defense of their own political interests. On this view, it makes sense that any nation’s default position in relation to a dispute between other nations should be one of neutrality. Since, on realist assumptions, an external dispute cannot be of consequence to our country except insofar as it implicates our own interests, we remain indifferent except to the extent to which our interests are threatened. In the case of the Middle East, America has important interests in stability in that region—largely arising from our economic need for a steady supply of relatively inexpensive oil—and therefore has an interest in pacifying it by whatever means seem effective, but no interest in the fate of some parties to the regional dispute more than others.

Idealism, on the other hand, is characterized by a kind of moralistic cosmopolitanism. It seeks a just international order in which the aspirations of all peoples are fulfilled equally, because it believes that all nations or peoples are of equal dignity and value. Therefore, when two nations or groups of nations are at odds, the only ethical posture is one of neutrality, since the interests on both sides are of equal value.

In turn, both realism and idealism in foreign policy are manifestations of two very powerful modern ideas—individualism and egalitarianism—that capture only part of the truth about human sociability, and that mislead us when we allow their partial wisdom to be taken as the whole truth. Many modern political philosophers have contended, and with great influence on the cultures in which they have thought and written, that human beings are fundamentally self-interested actors, primarily concerned with the satisfaction of their own material interests. Realism is a relatively straightforward application of this insight into individual human nature to the character and behavior of aggregations of human beings, nations, and states.

Much modern political thought has also been insistently egalitarian. Seeking to overcome commitments to narrow identities—such as clan, tribe, or nation—that often foster conflict, many modern thinkers have emphasized the equal dignity of all human beings. Idealism is a relatively straightforward application of this idea to the life of nations, all of which must be held to be of equal value.

I do not mean to suggest that realists and idealists are invariably committed to neutrality in every international dispute. This is obviously not the case. Rather, it seems that, while the contingent circumstances they discern in such conflicts may lead them to advocate an alliance with one side or another, their fundamental principles impel them toward an evenhanded position of neutrality, at least when all other things are equal. That is, neutrality is their reflexive tendency, if not their inevitable policy.

Such a tendency, however, is problematic to the extent that the principles that give rise to it are themselves only imperfectly true. Modern individualism and egalitarianism both misunderstand the nature of solidarity or friendship among human beings and hence among nations. In their elevation of self-interest, both individualism and political realism tend to miss completely the role of friendship in human affairs. While it is true that self-interest is a powerful force, it is not the sole motive of human action. Men and nations sometimes do, and often should, act on the basis of friendship, or a sense of commitment to others that they view as “other selves,” to use a term Aristotle applied to friendship. Conversely, the cosmopolitanism of modern egalitarianism and idealism, while understanding the importance of human solidarity, mistakenly believes it can be extended to all human beings or nations indiscriminately. While it is true in some cosmic sense that all individuals and all nations are of equal value and dignity, it is not the case that that equal dignity is equally entrusted to all other men or nations.

Nations as well as men experience a kind of friendship, and that friendship cannot be indiscriminately extended to the whole world. In this context, I think it would be both impossible and wrong for America to try to treat Israel and its rivals with equal solicitude. It is perfectly reasonable—and probably inevitable—that most Americans will look upon Israel as more of a friend than its various adversaries. Though a secular state, America is still, and will for the foreseeable future continue to be, an overwhelmingly Christian nation. Israel, though also a secular state, is the home of the Jewish people, whose history is inextricably linked to the Old Testament revelation from which Christianity emerged. Moreover, America—and the European civilization from which it sprung—has a long history of Christians and Jews living together as members of the same societies. That history admittedly includes much in the way of mutual suspicion, and of egregious injustices committed against Jews by Christians. Nevertheless, there is here a history of common living together for which there is no comparable experience in the case of Christians and Muslims. In sum, Americans will understandably look upon Israel as a branch of a common civilization, a status that they cannot so easily accord to Israel’s adversaries. That is, America will sense a kind of friendship for Israel that is different from and more intense than whatever good will it has for Israel’s adversaries. To that extent, America cannot and should not try to be completely neutral in a conflict involving Israel, especially one possibly threatening Israel’s very survival.

None of this is to say that America would be right to adopt a policy of blind support for all actions of the Israeli government, or that it could justly be indifferent to the interests of Israel’s adversaries. Friendship does not require unqualified agreement with all of a friend’s actions, and true friendship may indeed require criticism when one finds a friend erring. At the same time, friendship for one party does not require, nor would justice permit, indifference to the legitimate interests of other parties, even when those parties are in a dispute with one’s friend. It is to say that while America must respect the just interests of all parties, and while particular Israeli actions may in some cases require American criticism, America cannot disclaim and should not conceal its special, friendly solicitude for Israel’s well-being.

Some will no doubt suggest that for America openly to act on such an understanding would be insulting to Arabs and Muslims and would irreparably harm our relationship with many nations. No such consequences need follow, however. The limitations and inequalities of friendship are an obvious fact of human life, and no reasonable man feels slighted when two others who share a common history acknowledge a friendship to which he is not a party. So it is with nations. America has long proclaimed a “special relationship” with Great Britain, which all nations understand and which none can take as an insult. Indeed, Israel’s adversaries themselves act upon, and thereby acknowledge, the inequalities and limitations of friendship by the special concern they show for the Palestinians, a concern which is obviously based on a sense of religious and ethnic solidarity and which is perfectly understandable from their position. In view of these considerations, America might in fact win better relations with Arab and Muslim nations by honestly admitting its friendship for Israel, instead of fostering the frustrations that inevitably arise from asserting a neutrality to which it cannot really adhere.


Carson Holloway is a political scientist and the author of several books including, most recently, The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

What might serve some useful purpose, however, is an effort to reveal the roots of this intolerance. Tolerance is a delicate plant that does not grow easily in the soil of humanity. To some extent, then, liberal intolerance is simply a reflection of the ordinary weakness of human nature, which in all men yearns to silence those whose opinions differ too widely from their own. In theory, everyone admits that human reason is fallible. In practice, the conclusion we are apt to draw is that the other guy is wrong—so wrong that he should not even get a fair hearing.

Nevertheless, given the commitment of American liberals to abolishing intolerance and overcoming bias, it remains a vexing question why they should so often succumb to the very illiberal spirit they claim to reject. The answer is to be found in three aspects of contemporary liberal ideology.

In the first place, liberals are drawn into intolerance by their belief in progress, or rather Progress. The contemporary left is, to a considerable extent, committed to the notion that history, or rather History, moves according to a rational, discernible purpose, specifically in the direction of a gradual but irreversible amelioration of the human condition, understood especially as an ever-increasing equality. At first sight, one might expect that such a belief would actually foster tolerance. After all, why should one bother to silence non-progressive views if Progress is fated to advance no matter what anyone does? But it does not work out that way. Instead, the liberal belief in Progress causes liberals to view any expression of what they regard as retrograde opinion to be a threat to the very foundations of their worldview. When such opinions begin to gain popular support, they raise the specter that History might be stopped in its benevolent course or even reversed. In contrast, traditionalist conservatives can afford to be more tolerant of ideas they think mistaken, since they view them not as a threat to the gradual perfection of the human condition but as part of the usual parade of folly and weakness that always characterizes human affairs.

In the second place, contemporary liberalism is prone to intolerance because some of its most cherished political and cultural aspirations are at odds with the deeply-rooted moral convictions of the American society it is trying to reform. For example, liberals insist that homosexual relationships are morally equivalent to heterosexual ones, to the extent that the former should not only be tolerated but must be legally affirmed as the same thing as heterosexual marriage. Similarly, liberals hold that racially discriminatory policies are justifiable depending on which persons they advantage. At least in a country with America’s present culture, such ideas cannot win majority support in the context of reasoned public deliberation. Accordingly, liberals have to resort to hysterical denunciation of those who challenge such ideas, precisely in order to stop a debate they know they cannot win.

Finally, the left is intolerant because it tends to be secular, and as a result is less able to respect the dignity of the individual human person. The Western tradition finds support for human dignity in the biblical belief that every human being is created in the image and likeness of a transcendent God. While history demonstrates that this belief has never been powerful enough to restrain all human evil, it nevertheless provides a powerful motive to respect the rights even of those with whom we disagree. From this point of view, no matter how wrong a man may be, he himself is of infinite value. Modern American liberals have to a considerable extent shaken off such theological convictions. In their place, many liberals have embraced Darwinism, understood not merely as a scientific explanation of the biological mechanisms of evolution but as a comprehensive account of man’s ultimate origins. Darwinism thus understood, however, purports to “know” that human beings emerged merely through the interplay of chance and necessity, and that they differ from other animals not in kind but only in degree.  When fully appreciated, the biblical tradition encourages us to view every human being not only with respect but even with awe—a view for which contemporary Darwinism offers little support. As a result, while liberals are perfectly sincere in their desire to do good to humanity, they have no very strong appreciation for the worth of the human individual as an individual.

Thus we often find liberals seeking to advance the cause of social justice, as they understand it, by doing injustice to individuals. For example, recent reports about JournoList—the now defunct left-wing mailing list for reporters, commentators, and academics—revealed that one of its members proposed responding to concerns about Barack Obama’s relationship with Jeremiah Wright as follows: “take one of them [that is, someone on the "right"]—Fred Barnes, Karl Rove, who cares—and call them racists.” This suggestion apparently met with no principled objections from his liberal interlocutors.  It seems not to have occurred to them—or at least not in such a way that it mattered much—that the suggested conservative victims of this accusation were living men with families, friends, and reputations, all of which would have been wounded by such a toxic charge.

None of this is to say that all liberals are intolerant. There are numerous honorable exceptions. It is to say, however, that those liberals who genuinely value tolerance may have to confront their own convictions—or at least those of the movement to which they belong—on a deeper level than is ordinarily supposed.

Carson Holloway is a political scientist and the author of several books in political theory, most recently The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

The term “xenophobia” is a modern coinage based on ancient Greek roots that literally suggest fear of strangers. Used in its popularly accepted sense xenophobia refers to an irrational fear of foreigners and an unjust animus against them. Thus understood, xenophobia is rejected by all mainstream Americans. The majority of those Americans, however, understand their rejection of xenophobia as perfectly compatible with acknowledging the distinction between what is foreign and what is familiar, and even with preferring, within just and decent limits, the latter to the former. On this view, opposition to the “Ground Zero mosque” is not, despite liberal complaints, necessarily a manifestation of xenophobia. The opponents of the mosque acknowledge the rights of those who want to build it, but they think it should be built elsewhere out of respect for the feelings of those whom it offends. Of course, feelings are wounded on both sides: those who want the mosque are offended by opposition to it. Nevertheless, the opponents give greater weight to the feelings of their largely non-Muslim countrymen than to those of the mosque’s mainly Muslim proponents.

Implicit in this behavior is the sense that while everyone’s rights must be respected, not everyone’s feelings and interests are entitled to equal consideration. In acting and thinking this way, the critics of the mosque are manifesting a deeply rooted human proclivity, what the ancient political philosophers called “the love of one’s own.” Although this love is natural, it can be carried to unjust extremes. In Plato’s Republic, for example, Socrates is at pains to teach Polemarchus that justice is not doing good to friends and harm to enemies. Nevertheless, insofar as love of one’s own is natural, some reasonably restrained version of it is defensible. Thus Socrates’ correction of Polemarchus’s opinion holds that the just man will do good to friends and harm to no one. Even this philosophically refined version of justice acknowledges that more consideration is owed to friends than to others.

Viewed in this light, one might say that liberals are shocked by natural human partiality, and tend to attack it as xenophobia, because their own moral and political vision is skewed by a kind of unnatural xenophilia, a love of foreigners and preference for them. This surely does not get to the root of the matter, however, since one can hardly experience a genuine love for what is little known. In most cases the liberal’s reflexive protectiveness of foreigners requires no serious familiarity with them or affection for them. What is really at work is a kind of hostility to one’s own, a tendency that Roger Scruton has termed “oikophobia,” a fear of the familiar. To capture its political aspect, we might refer to it instead as a kind of liberal patriphobia, a fear of one’s own country and a fear of the love of one’s own country. I hasten to add that by this remark I intend no crude slander on the patriotism of American liberals. I intend only a candid statement of what I think every honest observer must admit: liberals are deeply suspicious of the love of one’s own, which they regard as both intellectually primitive and morally dangerous. In its place they embrace an egalitarian cosmopolitanism that suspects as unjust any preference for one’s own over outsiders, and even the very act of making a distinction between one’s own and outsiders.

Liberals act in these ways in part because contemporary liberalism is abstract and rationalistic in its philosophic roots. Liberals are still in important respects children of the Enlightenment and still hold dear its universalistic assumptions and aspirations. The Enlightenment hoped to usher in an empire of the “rights of man,” to establish society on the basis of what is owed to human beings as human beings, and accordingly rejected older, more partial loyalties—to clan, country, or faith—as merely arbitrary. To be sure, such loyalties are in some sense arbitrary and hence irrational. Objectively speaking, one man’s father is no more valuable than the next man’s, and the relationship between father and son is the work of chance and not choice. To that extent, one could contend that loyalty to fathers is merely arbitrary and irrational. From another perspective, however, one might contend that such loyalty is perfectly rational—in the sense that, while every man would admit that his father has no particular claims on the human race, every man would equally claim that a father does have a very powerful claim on the help and affection of his own son. Love of one’s own is unreasonable from the standpoint of an abstract rationality, but it is perfectly reasonable in the sense that it is embraced as normal and good by the common sense of the human race. If this is the case, then Liberalism’s reflexive suspicion of the love of one’s own turns out itself to be unreasonable and unjust. Respect for the rights of man may be the beginning of political wisdom, but it is not the end.

Liberal patriphobia also arises in part from liberals’ sensitivity to the historical traumas that have been inflicted on the human race through a disordered love of one’s own. In the European experience, Nazism and Fascism stand as sobering reminders of the enormous criminality that has been done in the name of a perverted patriotism. In America, the historical crime of slavery was initiated and defended on the basis of whites’ definition of Africans as alien and other, and hence as not possessed of any rights that demanded respect. Liberals are correct to be mindful of such injustices, sensitive to their causes, and alert to avoiding their recurrence. They err, however, in laying the blame for such crimes entirely at the feet of the love of one’s own as such. The real culprit is the excess of the love of one’s own, not to say an insanely inflated version of it. As St. Augustine remarked, the abuse of a thing does not take away its use; and it would be no less foolish to abandon the love of one’s own because of the excesses of nationalism than it would be to abandon erotic love because of crimes of jealousy.

Although well-intentioned in its origins, liberal patriphobia should be rejected as incoherent and morally dangerous. It is incoherent because it is what C.S. Lewis called, in The Abolition of Man, a mere moral innovation—that is, a novel teaching that rejects important portions of the moral tradition of the human race on which it is nevertheless silently parasitic. This was, in fact, Lewis’s criticism of Nazism. It wrenched from traditional morality the universally accepted principle that a man must love and serve his country, while at the same time it abandoned the equally venerable claim that justice requires that we respect the rights of all men, even those of foreign nationality. Modern liberalism simply reverses this error, denying that a man may especially cherish his countrymen while groundlessly insisting that he love the whole human race. In fact, modern liberalism learned its love for humanity from a traditional morality that also taught a heightened love for one’s own. If one principle is to be rejected, then both are groundless. If one is to be retained, then both have authority.

Liberal patriphobia is morally dangerous both in its direct and indirect effects. To the extent that liberals succeed in their moralistic denunciation of the love of one’s own, they debunk human sentiments that are perfectly normal, natural, and just, and they therefore directly desensitize men to duties of love and service that go beyond the minimum owed to all men in common. In the long run, liberal patriphobia cannot succeed precisely because it is up against a natural human love and humanity’s moral common sense. The indirect effect of the liberal denunciation of love of one’s own as xenophobia is to discredit the charge of xenophobia and rob it of all of its force. Given humankind’s sad proclivity to lurch from one irrational extreme to another, liberalism’s campaign against the love of one’s own threatens to wear out the charge of xenophobia and thus leave us disarmed in the face of real xenophobia when it arises.

Opposition to the Ground Zero mosque is not xenophobia but an ordinary, predictable, and understandable manifestation of the human proclivity to distinguish between what is one’s own and what is alien and to give preference to the former over the latter. The core of the opposition arises from those who feel most directly brutalized by the 9-11 terrorist attacks, either because they are New Yorkers themselves or are other Americans whose love of one’s own is so intense that they feel those attacks as attacks on themselves. They view the mosque as a provocation and an affront because of its association with a religious tradition that is alien to the historically prevalent American culture and that is in some forms admittedly hostile to that culture, as in the case of the 9-11 terrorists themselves. Additional opposition to the mosque arises from the same feelings operating in other Americans who, though more distant from the dispute, nevertheless find themselves drawn into it. They see a current controversy between those that they regard as their own and those they regard as other, and they feel impelled by national and cultural loyalty to side with the former against the latter.

Such feelings can, of course, show themselves in ways that are excessive and unreasonable. If that is happening in the case of the mosque, then liberals would be correct to say so in proportionate terms. Liberals err badly, however, in insisting that the current manifestations of such feelings are so excessive as to deserve the name of xenophobia. The opponents of the mosque, after all, are animated not by a generalized hostility to what is foreign, but instead by a concern about a particular religious tradition with which their country has had a recent traumatic experience. Moreover, such opponents admit that even the builders of the mosque have rights that must be respected—admit, that is, that love of one’s own is limited by a justice that involves obligations even to those viewed as strangers. Liberals err even more fundamentally in denouncing the underlying feelings of patriotic solidarity as themselves xenophobic, for, again, such feelings are natural, ineradicable, and, within proper limits, productive of good. By their present accusations of xenophobia, liberals distort the meaning of the word and do no good service to their own countrymen or, in the long run, even to the strangers about whose feelings and interests they are so solicitous.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha. He is the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Copyright 2010 the Witherspoon Institute. All rights reserved.

Such judicial activism has been an ongoing problem for decades. In response, a conservative legal movement has arisen to offer resistance through public and scholarly argument, the election of constitutionalist presidents and senators, and, ultimately, the appointment of judges and justices who will confine themselves to the requirements of the constitution and refrain from imposing their own values as law. Such efforts have been fruitful but never fully effective. Judicial activism has been slowed but not stopped, with the result that democratic self-governance and the rule of law continue gradually to erode. Since even the incremental surrender of these fundamental principles of American republicanism is unacceptable, it is time to weigh the use of stronger medicine. It is time to consider the impeachment of federal judges as a remedy to judicial activism.

Impeachment will place the argument against activist decisions on its proper footing—presenting them not as mere errors, but as illegitimate usurpations of power lodged elsewhere, as incompatible with the preservation of democratic self-government and the rule of law. Despite their insulation from the political process, most judges are sensitive to public opinion and mindful of the need to maintain the courts’ public legitimacy. Thus the debate begun by judicial impeachments will, if pressed publicly, reasonably, and tenaciously, foster restraint among the more prudent federal judges, who will perceive that such debate is not in the institutional interests of the judiciary.

Such a proposal will, of course, provoke a chorus of outraged objection from the American left, which has won so many of its policy victories through the promiscuous use of judicial activism. It will be said that the use of impeachment constitutes an attack on the independence of the judiciary, and hence an attack on the constitution itself, insofar as judicial independence is a key constitutional principle. Such an argument, however, mistakenly elevates a mere institutional means to the status of a constitutional end. The founders did value judicial independence, not as an end itself but as a way of securing the impartial rule of law. The purpose of an independent judiciary was to ensure that the constitution was observed according to its original meaning, despite the whims of temporary impassioned majorities. It was not intended to allow judges to invent new constitutional doctrines out of whole cloth and impose them authoritatively on an unwilling populace. Yet the latter is precisely what modern judicial activism entails.

The founders were practical men who sought the most effective ways to secure lawful self-government. Accordingly, they frequently appealed to the lessons of experience. In our time, experience shows that the independence of judges, which was designed to protect the constitution as a rule of law, has been abused to the extent that it is now a threat to the constitution as a rule of law. The institutional means has, in practice, become hostile to the constitutional end for which it was devised, and such a situation demands some corrective action. Fortunately, the constitution itself provides for such a corrective in the form of impeachment and removal of judges from office.

Some will likely object that the purpose of the impeachment power is to rid the federal judiciary of judges found to be guilty of criminal wrongdoing. Certainly this is the most common use of the impeachment power in relation to judges, but there is ample reason to believe that the constitution contemplates its broader use as a corrective to the abuse of the judicial power. The idea that impeachment is to be reserved only for cases of criminal wrongdoing receives some superficial support from the constitution’s language that it shall be used in cases of “treason, bribery, and other high crimes and misdemeanors.” The term “misdemeanor,” however, can be understood to include not only law-breaking but, more generally, misconduct. After all, Webster’s defines a misdemeanor not only as a crime less serious than a felony, but also as a “misdeed.”

Historically, this broader understanding has been borne out in the area of presidential impeachments.  For example, the articles of impeachment approved by the House of Representatives against Richard Nixon cited not only his criminal conduct, but also his misleading of the American people about his role in the Watergate cover-up. The House evidently regarded such conduct as an abuse of the office of the presidency that was worthy of impeachment and removal from office. To this extent, the grounds for impeachment appear to include unethical abuses of official authority.

Indeed, it is worth noting that the constitutional language that applies specifically to judges reinforces this conclusion in their case. Article III of the constitution provides not that judges shall serve for life, but “during good behavior”—a formulation that clearly suggests that their continuance in office depends on more than just steering clear of unlawful conduct. Moreover, it is reasonable that the constitution should imply a lower standard for judicial impeachments than for executive branch ones, insofar as judges, not having to face re-election, can be restrained in the conduct of their offices by no other principle.

It should be obvious that judges are capable of non-criminal misconduct for which impeachment is an appropriate punishment. A judge might, for example, manipulate his enforcement of trial procedure and the rules of evidence so as to ensure a conviction that might not have been secured on a more neutral management of the trial. He might do so, moreover, on the basis of his own private conviction that the defendant is guilty of some other crime for which he is not being tried in this case. Surely no one would deny that a judge who behaves in this manner deserves not only to have the verdict of his court reversed on appeal, but also that he himself deserves to be disciplined by being removed from office. The former remedy can correct the injustice at hand, but only the latter can ensure that it is not repeated.

Again, someone might object that there is a difference between this kind of mistreatment of a litigant at trial and the case of a judge dealing with constitutional questions. There is indeed a difference, but it is one that makes impeachment just as appropriate, or even more appropriate, to the latter case. The cases are analogous to the extent that both involve a judge allowing his personal convictions about what is just to influence the exercise of his duties. Nevertheless, the one who indulges such behavior in relation to judicial review arguably does something worse. For the trial judge who abuses his procedural discretion against a litigant does violence most immediately only to the rights of specific persons, while the judge whose moral and political prejudices lead him to strike down laws on the basis of spurious constitutional theories does violence to the rule of law and self-government, that is, to American republicanism itself.

Moreover, the use of impeachment as a restraint on an ambitious judiciary was publicly advanced by one of the leading defenders of the constitution during the ratification debates. The problem of what we now call judicial activism was a common worry of the anti-federalist opponents of the constitution, who feared that federal judges would use their power of judicial review to strike down democratically enacted laws, intruding illegitimately on the legislative power. When the anti-federalists pointed this out, Alexander Hamilton, writing in Federalist 81, responded that a “complete security” against such abuses was provided by “the important constitutional check” found in “the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other.” Hamilton says that there is no serious danger that “judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Hamilton’s faith in judicial good behavior was based on the constant implicit threat of impeachment.

The rise of the tea parties has revealed widespread dissatisfaction with the fecklessness and irresponsibility of the political class. An appetite to see its worst members called to account could be extended to the judicial class. Indeed, the rise of the tea party movement indicates a widespread openness to restoring the vitality of American republicanism precisely by returning to the principles of the founders. Politicians and public figures concerned about the ongoing abuse of the judicial power should do a lot of work to remind citizens of the compatibility of judicial impeachments with constitutional principles.

It is possible that despite being constitutionally sound and, potentially, politically appealing, this strategy is doomed to fail as policy. It is extremely unlikely that the House and Senate would approve articles of impeachment against a judge. Nevertheless, judicial impeachments need not lead to removals from office in order to exert a wholesome restraining influence on potential judicial activists. Merely to introduce articles of impeachment, and to defend them vigorously in the proper terms, will tend to induce caution in federal judges, who, again, must be sensitive to public perceptions of their legitimacy.

The hour is late. Over the last three generations the federal courts have more and more usurped the right of the American people to govern themselves, not merely in trivial matters but in relation to weighty issues such as the protection of life, the definition of marriage, and the rights of enemy combatants. It is time to restrain such judicial excesses by using the tools provided by the constitution for that very purpose.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha. He is the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Copyright 2010 the Witherspoon Institute. All rights reserved.

The older version of living constitutionalism was famously defended by Justice William Brennan in his 1985 speech at Georgetown University entitled “The Constitution of the United States: Contemporary Ratification.” In that speech Brennan rejected calls for a jurisprudence of “originalism” and instead insisted that the constitution should be interpreted in light of contemporary values. Brennan strictly averred, however, that these contemporary values must not simply be the judge’s own values. Rather, the judge’s task is to discern the community’s current interpretation of the constitution, to be guided by the public’s contemporary values, and not by his own idiosyncratic beliefs, in deciding constitutional cases.

The problem is that often a constitutional case demonstrates the existence of an important clash of values within the community itself. Frequently, such a case will involve a clash between a majority whose values have been enshrined in law or policy through the democratic process and an individual or minority that cannot prevail politically and thus has had recourse to the courts. A judge who invokes the “living constitution” to invalidate democratically enacted policy in such a case—and this is a use of living constitutionalism that its proponents have not been reluctant to embrace—is not finding a solution based upon the community’s values. He is rather siding with one part of the community over another, and, again, in many cases siding with a minority position over a majority position. In view of this conflict within the community, and hence the inability of “community values” to give him any clear guidance in the dispute before him, he is deciding which set of values he agrees with or thinks more just and ruling accordingly. That is, he is imposing his own values, which is precisely what Brennan had said must not be done.

In some recently reported and widely defended comments, Supreme Court nominee Elena Kagan has gone much further, suggesting that judges may properly be guided by their own values in deciding cases. In a 1995 review of Stephen Carter’s The Confirmation Mess, Kagan approvingly quoted Carter’s claim that “the interpreter’s own experience and values become the most important data” at a “crucial moment” that arises in most cases heard by the Supreme Court. Then, speaking clearly for herself, Kagan adds that “it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.” According to Carter, this is the proper mode of resolving controversial questions such as “flag burning, segregated schools, and executive power,” and Kagan adds that one could cite “countless more” examples.

Supporters of Kagan’s nomination have defended her by pointing out that her views are widely shared by members of the American legal left. In fact, her position is not in principle different than that of President Obama last year when he contended for the role of a judge’s sense of “empathy” in deciding important cases. After all, a judge’s values will inexorably influence which litigants receive the benefit of his empathy. In her book review Kagan reveals herself as, if anything, an even more ardent judicial activist than her presidential patron. In defending his theory of judicial empathy, President Obama went out of his way to insist that the proper legal answer would be clear to a judge or justice in the vast majority of cases, but that empathy would have to come into play in the handful of truly difficult cases that the Court must confront from time to time. In contrast, as the language quoted above indicates, Kagan thinks that a justice’s own values and experiences, and not technical interpretations of the law, will be the most important considerations in “many” and perhaps even “most” cases the Court must resolve.

Kagan’s new living constitutionalism, according to which individual jurists breathe the life of their own meanings into our fundamental law, is even less defensible than the earlier version articulated by Justice Brennan. It is not even an accurate description of what Supreme Court justices do, or at least not an accurate description of how they present what they do. One can seek almost in vain for examples of Supreme Court opinions in which the author even refers to his own experiences and values, let alone deploys them as the decisive considerations for the case in question. In the few cases when such considerations are mentioned, they are often raised so that a Justice can demonstrate his personal sympathy with the side for which he cannot, for legal and constitutional reasons, render judgment.

This is not to say that justices are never influenced by their own values in their work. Any astute observer, by discerning the weakness of the legal reasoning deployed in many cases, can reasonably conclude that the justices could not have been guided by anything other than their own values. The unwillingness of justices to state their personal reasons for the public record, their insistence on crafting opinions in terms of objective legal analysis, suggests that they know that the personalized justice advocated by Elena Kagan cannot stand the light of day. They know that to embrace it openly would be to destroy the Court’s legitimacy by openly flouting long-established, deeply-rooted American expectations about the role of courts in a constitutional democracy.

The idea that judges should be guided by their own values in rendering judgment is not one that anyone can honestly and consistently embrace. For if liberal judges may properly be guided by their own values, then conservative ones can be as well. But does anyone really believe that if a majority of conservative justices were to overturn, say, Roe v. Wade, simply on the basis of the justices’ own moral convictions about abortion, Elena Kagan and her supporters would not complain bitterly about both the outcome and the illegitimacy of the reasoning? In the face of such a difficulty, the proponents of Kaganism must either admit that, as a matter of principle, judges should not be guided by their own values, or claim that only liberal judges may properly be guided by their own values. To admit the former is to surrender their position. To claim the latter is to reveal their jurisprudence as a barefaced exercise of power.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Obama’s speech, however, points to an even deeper danger to American republicanism than that posed by weakness or naïveté in foreign policy. This danger resides not only in the president’s mind, or in the dispositions of his administration, but in our very political culture. The danger I have in mind is illustrated by the utter vacuity of the West Point address, which in turn reflects a general argumentative emptiness in our political discourse.

Aristotle, in his great work the Rhetoric, distinguishes between two kinds of political discourse: epideictic rhetoric and deliberative rhetoric. Epideictic rhetoric is essentially ceremonial. It seeks to identify and praise certain persons or ideas in light of the community’s commonly held beliefs about what is good and bad, noble and base. Deliberative rhetoric, in contrast, is about choosing a course of action. It articulates the policy ends upon which citizens generally agree and then makes the case for the means best adapted to those ends.

Much of Obama’s West Point speech—about the first half—is given over to epideictic rhetoric. He praises the cadets and teachers for their dedication, the parents for their support, and the American military in general for its honorable traditions of courageous service. There is, of course, no shame at all in this. Ceremonial rhetoric is perfectly appropriate to a commencement address. Moreover, all political leaders, and especially those who occupy the highest offices, must make use of ceremonial rhetoric. Binding the community together through the affirmation of shared principles is no less an important task of the statesman than discovering and publicly defending specific actions that should be taken. Accordingly, some ceremonial speeches are considered to be among the greatest examples of excellent political rhetoric. Here we may call to mind Abraham Lincoln’s Gettysburg Address and Second Inaugural Address. Such efforts demonstrate Lincoln’s mastery of epideictic discourse, while his speeches in the Lincoln-Douglas debates and his First Inaugural show his no less impressive skill at deliberative rhetoric. In the former addresses Lincoln praises America for the justice of its principles and praises certain Americans for their heroic commitment to them. In the latter he identifies problems that confront the country and explicates the reasons for particular courses of action.

The problem with Obama’s West Point speech, then, is not that its first half is so ceremonial, which is in fact perfectly appropriate to the occasion and to his duties as a leader. The problem is that the second half of the speech aspires to be deliberative rhetoric but fails to do so. And, of course, there is a long history of presidents offering substantive foreign policy arguments in commencement addresses. Obama aims for this, but misses terribly.

President Obama begins the second half of his speech by promising a foreign policy “strategy.” This is essentially the language of deliberative rhetoric. After all, the aim of strategy is to identify certain achievable ends and then discover the means best adapted to realizing them. Immediately after recognizing the need for a strategy, however, the president veers back in the direction of ceremonial rhetoric, praising Americans for their ability to surmount challenging circumstances. He reverts to such themes, in fact, at several points in the remainder of the speech. Along the way he does, admittedly, speak of the ends and means of his policy. The apparent ends he identifies are American strength and influence and a more peaceful and prosperous world. The proper means to these ends, he suggests, are such things as economic vitality, an active diplomatic corps, effective collaboration among intelligence agencies, and a willingness to cooperate with other nations.

The problem with Obama’s speech is that the means he identifies are just as non-controversial as the ends. If it is serious, however, deliberative rhetoric must engage what is controversial, because the possible means to given ends are always more or less subject to doubt and disagreement. There would be no need for deliberation, after all, if what is to be done is obvious. Recall Lincoln’s most excellent deliberative rhetoric. That rhetoric clearly took the form of an argument with others about important disputed questions, such as whether federal policy should forbid slavery in the territories (the Lincoln-Douglas debates) or whether disunion was a legitimate and prudent response to deep divisions over slavery (the First Inaugural).

What is at stake here, however, is not just a deficiency in the current president’s (or his speech writers’) rhetorical skills. Rather, the reception of the speech points to a deeper public pathology. For, as noted above, the speech has been received in the media as an important policy speech, as a call for a specific policy, as an act of deliberation. One fears on the basis of such a reception that our public culture itself is marked by an inability to recognize, much less object to, the absence of deliberative reasoning in a president’s policy speech. Indeed, the easy invocation of non-controversial—and hence unhelpful—ideas is to be found in much of our political discourse.

This tendency is a serious problem for at least three reasons. In the first place, we cannot entirely discount the possibility that such empty rhetoric truly reflects our leaders’ empty thinking about political problems. We are tempted to think otherwise, to believe that deliberative rhetoric (or at least deliberation) must be taking place in the cabinet if not on the stage. That is, we are tempted to believe that our public officials have engaged in a rigorous argument about the proper means to desired ends in private with their advisors, but that they choose not to present that reasoning in their public speeches. This is certainly a possibility, but not one on which we can absolutely rely. After all, political leaders—and especially presidents—are often surrounded by advisors who are already predisposed to agree on what is to be done, who are ideologically inclined to a certain set of policies over others. In such an environment it is all too likely that genuine deliberation will not take place because everyone will believe that the solutions to public problems are obvious. In this case, policy speeches that avoid deliberation are reflections of a prior failure to deliberate. Needless to say, this exposes the nation to all the risks of policy error and miscalculation.

Second, and on a deeper level, such non-deliberative political speech undermines our ability to meaningfully live out our commitment to representative self-government. Public political speech is the vehicle of democratic deliberation. If that speech is void of genuine argumentation, then democratic deliberation and self-government itself will be a mere show. Representative self-government requires that the people get to choose the basic direction of the country. They cannot truly choose, however, unless public political speech is marked by genuine argument that identifies and examines the various means that might be employed in public policy. If it instead takes the form of mere affirmation of non-controversial ideas, then the campaign for political power will take the form of a contest to see which party or which politicians can most enthusiastically and convincingly affirm ideas on which everyone already agrees. Such a contest cannot foster rational choice, because it cannot bring to light the actual alternative policies from which our leaders will have to select. Such rhetoric renders the process of winning public approval completely unrelated to decisions made while governing. As a result, it seriously attenuates the sense in which the people can be said to be governed by their own consent.

Finally, the prevalence of empty political speech strikes indirectly at the public affection that holds the political community together. By invoking and implicitly praising only non-controversial concepts, such empty deliberation comes to resemble ceremonial rhetoric. It does not seek explicitly to explain the usefulness of certain policies but implicitly to celebrate their value, as if that value were beyond reasonable dispute. We see this all the time in politicians’ claims to stand for “common sense solutions.” In reality, however, politics—or the choice of proper policy means—is by its nature inherently controversial, no matter what anybody says about it. Accordingly, there will inevitably be dissenters from whatever set of policies a leader chooses to celebrate rather than to defend. Such celebratory rhetoric, however, inevitably implies that those who dissent are bad people. The implication of such speech is not that those who disagree have reasoned incorrectly about possible means to agreed upon ends, but that they have chosen to reject things that are (supposedly) commonly recognized as valuable. For their part, in the absence of the discipline of deliberative rhetoric, the dissenters will be unable to explain the miscalculations of their opponents, but will have to resort to the invocation of other (supposedly) common values, thus implying that the other side does not recognize them. Simply put, the effect of ceremonial rhetoric is to bind the community together around a set of shared principles. Therefore, to substitute ceremonial rhetoric where deliberation is appropriate tends to imply that those who disagree are not members in good standing of the community. And this marginalization of dissenting voices is not conducive to our political vitality.

We too often associate the word “argument” with confusion, weakness, and division. On that contrary, if our public policy is to be effective, if our commitment to self-government is genuinely to be lived out, and if our sense of community is to be preserved, we need not to avoid but to insist on public argument, properly understood as the pursuit of deliberative rhetoric in its proper sphere.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

To counter this, Stephens claims that America should try to export its liberties to the Muslim world precisely with a view to changing its culture in the direction of our own. As he observes, the permissiveness of American liberty is attractive even to many Muslims in traditionally Muslim nations. While the export of our culture to Muslim nations may “provoke censorious and violent reactions” in the short run, in the long run, their ongoing embrace of American-style liberty, and the morally permissive culture that accompanies it, will gradually erode the deepest ground of their anti-Americanism. He concludes: “If America wants to tilt the balance of Muslim sentiment in its favor, it needs to stand up for its liberties, its principles and its friends—Israel, Playboy, and Lady Gaga included.”

I have no quarrel with Stephens’s primary points. He is certainly correct that America cannot win over radical Islamists by distancing itself from Israel, and that a leavening of individual freedom would to a considerable extent moderate Muslim hostility toward American culture. He goes too far, however, in his concluding formulation. We should stand up for our friends, Israel included; but should we really, as Stephens suggests, regard Playboy, and the culture of sexual permissiveness that it symbolizes, as a manifestation of our “liberties” and our “principles”?

Stephens falls into an understandable but unfortunate human tendency: the desire to distinguish ourselves as completely as possible from our enemies, even to the extent of defining our own identity in opposition to theirs. We see our enemies’ vices with perfect clarity, and we spontaneously desire to distance ourselves from them as much as we can. The problem with this impulse, however, is that, as Aristotle reminds us, virtue is a mean between two vicious extremes. Thus, in fleeing unreflectively from the failings of our foes, we may run right past the virtuous mean and into an opposed, and vicious, extreme. Properly repelled by the baseness of the coward or the miser, a man may go too far in pursuit of courage or generosity and become foolishly rash or careless with money.

Societies face similar temptations, but they resist them if they are wise. In the depths of the Cold War, for example, America, despite its need to distinguish itself from Communist collectivism, did not dismantle its social safety net and embrace a thoroughgoing individualism that held that every man was on his own. Similarly, our revulsion at Nazism’s militarization of society did not lead us to reject the draft as a necessary tool of national self-defense. By the same token, we should not let our (quite proper) rejection of radical Islam’s repressiveness lead us to embrace an equally problematic permissiveness.

Stephens is correct to suggest that an injection of moral and cultural permissiveness could improve societies dominated by radical Islamism. It is sometimes the case that one form of corruption can moderate another, and realistic statesmanship cannot be above recognizing this truth. But what is medicine for the sick may well be poison for the healthy, and our current moral libertarianism, which even many Americans think has gone too far, may be harmful for us even if it could be good for others. Let us grant that radical Islam degrades human beings in general by its excessive repression of human sexuality, and that it degrades women in particular by subjecting female sexuality to male domination. Let us further grant that such disorders could be ameliorated by a move in the direction of individual liberation. It may nevertheless be true that, American culture, having moved too far in that direction, also degrades human beings generally—through trivializing human sexuality by detaching it from its natural purposes, such as the generation of new life—and women in particular—by making feminine sexuality into an object of commerce and by fostering an excessive concern with, and fantastic ideals of, physical beauty.

In any case, it is strange to hold that Playboy and the sexually permissive culture it represents are manifestations of American principles and American liberty. Both the magazine itself and the sexual behavior that it encourages would have been actively suppressed by American law and mores even as recently as sixty years ago. Are we to understand that America then was not a free country? This would be news to the Americans of that time, who understood themselves to have just finished a tremendous national exertion intended precisely to preserve a free society—a society distinguished from others, they might have held, by a commitment to ordered liberty, and not to unrestricted license.

Indeed, it would be closer to the truth to say that Playboy, and the culture of sexual permissiveness in which it can flourish, are perversions of American principles. Pornography could take root and grow in America’s public culture because the Supreme Court chose to give it the protection of the First Amendment. The First Amendment’s provisions on freedom of speech and of the press, however, were originally intended to protect the reasonable and responsible public discourse necessary for a self-governing people. They were not designed to shelter materials that the leading founders would have regarded, to a man, as outrageous affronts to human dignity, and the dissemination of which they would have thought a licentious abuse of freedom. Moreover, this expanded, pornography-protecting interpretation of the First Amendment has been wielded by the Court repeatedly to mow down anti-obscenity laws enacted by both the Congress of the United States and various state legislatures. Accordingly, we can say that the Playboy culture could not have arisen without an erosion of both the traditional understanding of the First Amendment and of our commitment to representative self-government.

Considering the preceding argument, some might wonder: if America were to reclaim its traditional identity, if it were to return to the original understanding of its principles and its liberties and a more conservative sexual culture, how would we distinguish ourselves from the repressive societies that Bret Stephens rightly deplores? The distinctions, indeed, would still be very significant. Moderation is not the same as repression. A society that uses law and mores to guide human sexual energies toward their natural and noble ends—marriage and procreation—has little in common with one that represses our sexuality as something unseemly, and much less with one that seeks to subordinate one sex to the other. As Tocqueville noted, America was at one time distinguished from other nations by its adherence to a rigorous sexual morality that it expected both sexes to respect. That America, he held, stood out for its freedom, its enlightenment, and its lofty conception of marriage.

In our current struggle against radical Islamic anti-Americanism, as in our past wars, some citizens have admonished us that it is possible to prevail militarily and yet still lose the war. This paradoxical outcome will follow, they have warned, if in prosecuting war we become like our enemies, illiberal and intolerant. Such warnings are well taken. We should fight our wars not only to preserve American lives but also to preserve the American way of life, including the just liberties to which it is committed. We also need to remember, however, that in time of war our identity is threatened not only by the temptation to win at all costs, but also by the temptation to distinguish ourselves from our enemies in every way. The unreflective indulgence of that temptation can lead us to lose ourselves by embracing, contrary to reason and our own traditions, the worst aspects of our present culture, simply because our enemies have used them to justify their hostility. Both temptations grant our enemies influence over our identity as a nation, and both temptations should accordingly be resisted equally.


Carson Holloway is Associate Professor of Political Science at the University of Nebraska at Omaha and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

The latter considerations—by calling to mind the widespread and deeply held disapproval of this undeniably significant accomplishment—remind us that “making history” is not always an unequivocally good thing. Fame is not the same thing as infamy, and perhaps as many names are carved indelibly in history for their perfidy and error as for any claim to greatness. Benedict Arnold is remembered along with George Washington, Neville Chamberlain along with Winston Churchill.

American liberals are, of course, well aware of this. Thus their contention that they have made history is not merely a claim to lasting notoriety but to something altogether more grand. They are claiming, in fact, not just a place in history, but the vindication of History—History with a capital H, understood not merely as a record of events, some good and some bad, but as a standard of judgment. As the term “liberal” gained a negative connotation over the last two or three decades, liberals more and more came to refer to themselves as “progressives.” This was a clever shift in rhetoric: progressives are presented as favoring “progress,” something that almost no one would oppose. To claim such a name, however, is more than mere political marketing. The title of “progressive” is genuinely apt to the extent that contemporary American liberals are believers in “progress”—specifically, progress as an inevitable result of the workings of the historical process. American liberals believe that history is not merely a record of events, but that it is a force moving in a certain, discernible direction—moving, in fact, toward an ever greater realization of the good in practice. For them, History is a gradual but unrelenting amelioration and perfection of the human condition. This, then, is the sense in which American liberals are claiming to have made history, a sense that was most clear, perhaps, in Harry Reid’s call, late last year, for the Republicans to join Democrats “on the right side of history.”

One could well question whether such a view of history is plausible. By “progress” most American liberals seem to have in mind not just a general improvement in the human condition, but also, more specifically, an increasing equalization of conditions. Their concern for equality has certainly been evident in the health care debate, in which liberals consistently emphasized the inequalities in the health care available to the rich and the poor. Viewed in this light, their claim that history can be understood as a progressive development of equality has a certain plausibility. One can easily see the history of the last century and a half as a record of the inexorable advance of welfare statism in the western industrialized democracies. On the other hand, there is ample room to doubt the historical inevitability or permanence of such “progress.” Recently, it has become possible for serious voices, examining contemporary trends, to question whether the welfare states of the west are economically sustainable in their present forms, let alone capable of pursuing an ever-increasing generosity. Taking a longer view, similar ambiguities remain. While it is certainly possible to view the history of the last five hundred or one thousand years as a progress in human equality and general wellbeing, one must nevertheless contend that nobody can, even on the basis of such a lengthy record, forecast the next five hundred to one thousand years.

Leaving aside the question of the validity of the liberal view of history, one can say at least this much about its consequences: the rise of the belief in History as Progress is a significant and ongoing source of much of the rancor in our political life. The commitment to Progress is one of the reasons our politics takes the form of a bitterly contested culture war. This happens because, as in the case of the recent health care debate, both sides sense that in every major policy question much more is at stake than the mere policy options at hand. Both sides believe—and correctly—that they are divided not just by a disagreement about the best means to commonly approved ends, but instead that they are involved in a clash involving their fundamental beliefs about the true nature of political life.

For liberals, the prospect of policy defeat—an apparent cessation of the Progress of History—or, worse, the prospect of the victory of conservative reforms—an unthinkable “turning back of the clock”—calls into question their most deeply held beliefs about the nature of human life itself. On the other side, conservatives sense that each proposed expansion of the welfare state involves not just an extension of the power of the state beyond its previous limits, but that the whole idea of limited government is itself at stake. After all, the liberal belief in progress cannot admit of principled, permanent limits to government power. Liberals believe that government is the necessary actor in at least midwifing progress. Since the progress for which they hope has no defined limit, they cannot admit, in advance, that any sphere of human life should be inaccessible to state supervision. Moreover, since the progress for which they hope is specifically understood as a progress in equality, they cannot exclude government from any area of human life in which inequality might manifest itself.

The recently passed health care bill was so hotly contested not because of mere partisanship—because of a ruling party’s desire to wield power after having won it and an opposition party’s desire to frustrate such efforts—but because both sides correctly divined that, in some sense, everything was at stake. Since liberals will not soon abandon their belief in progress, or conservatives their belief in limited government, the late liberal victory will likely prove to be not an end to our ongoing cultural war, but only the most recent flash point in it.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In endorsing a repeal of the current “don’t ask, don’t tell” policy, President Obama was not content to frame his position as a matter of good policy. He did not say that it would be generous to allow open homosexuals to serve in the armed forces, nor did he make the pragmatic argument that it might be a good way to increase recruiting by opening the service to a currently excluded class of people. Rather, he framed the issue as one of fundamental justice stated in terms of “rights.” He vowed to “work with Congress and our military to finally repeal the law that denies gay Americans the right to serve the country they love because of who they are.” Such a formulation, however, betrays a troubling intellectual carelessness, characteristic of modern liberalism, about the nature and ground of rights.

When we speak of rights—at least in the sense in which the president seemed to be using the term—we are usually implying a claim that is universal or at least general. The invocation of rights calls to mind things that are owed to human beings by virtue of their humanity (for example, the right to own property), or at least to citizens by virtue of their membership in the political community (such as the right to vote in elections). To begin with, therefore, it is somewhat strange to invoke a right to serve in the nation’s military—a very important and very demanding kind of job to which few are called and for which fewer still are chosen. The purpose of the military is to protect the nation, and no one has a right to join the military services unless he can make a positive contribution to that arduous and vital mission.

To this point the president and his liberal defenders would surely respond that homosexuals can contribute to that mission, but that they are unjustly excluded from doing so because, as the president said, of “who they are.” We must pause to observe that the president’s formulation in fact misrepresents the current policy. Homosexuals are not specifically excluded from military service because of their homosexual inclinations . That was the result of an older policy, one that questioned recruits about their sexual  desires and barred them from service if they were found to be homosexual. In the Clinton administration, this policy was superseded by the current one: the “don’t ask, don’t tell” policy, according to which the military does not seek to know the sexual  desires of recruits but does exclude those who are openly homosexual. Thus the current policy does not exclude homosexuals because of who they are but because of a specific choice they might make, a choice to be open about their same-sex attraction .

The president, then, is trying to assert not so much a positive right to serve in the United States military but a right of open homosexuals not to be disqualified from service on the basis of their open homosexuality. Stated in this manner, his claim may seem more reasonable. Yet it still suffers from the aforementioned intellectual carelessness. What, after all, is the basis of such a right? On this crucial question the president was utterly silent. Is he suggesting a constitutional basis for such a right? The Constitution says nothing about a right to be free from discrimination on the basis of openness about one’s sexual desires . Admittedly, one could try to seek out such a right in certain recent, highly creative, Supreme Court rulings regarding law and homosexuality. Lawrence v. Texas (2003), for example, declared a right to sexual liberty said to be rooted in the Due Process Clause of the Fourteenth Amendment. That case, however, dealt not with government-enforced employment discrimination , but instead with criminal punishment of homosexual acts. It thus involved an intrusion on the homosexual individual far more appreciable than that presented by the “don’t ask, don’t tell” policy. Even if one grants the existence of the Lawrence Court’s novel liberty right, the “don’t ask, don’t tell” policy, unlike Texas’s criminal prohibition on homosexual acts, places no significant obstacle in the way of a person who wishes to live a homosexual life.

As an alternative, someone seeking a constitutional basis for the right the president has asserted might look to Romer v. Evans (1996). Unlike Lawrence, that case dealt with a legal discrimination in regard to homosexuality that fell far short of a criminal prohibition. The Court in Romer struck down an amendment to the Colorado constitution that prohibited the government from treating homosexuality  as a protected classification in anti-discrimination law. Nevertheless, the Court here was again dealing with something very different from the “don’t ask, don’t tell” policy. The Romer Court objected to the amendment because, by enshrining its policy in the state constitution, it made it much more difficult for homosexuals to seek the protection of anti-discrimination legislation than for other citizens. The Court, however, said nothing to suggest that the state had to provide such protections, or even that the federal Constitution would be offended if the state itself discriminated on the basis ofsame-sex attraction . In any case, the Romer decision was based on the Equal Protection Clause of the Fourteenth Amendment, which by its terms applies only to the state governments. It therefore could not be invoked against a federal policy like “don’t ask, don’t tell.”

In the absence of any compelling constitutional argument, we might conclude that the president intends to assert a moral right to be free from the discrimination of the “don’t ask, don’t tell” policy. If so, he needs to make an argument and not just a declaration. Public and private discrimination against open homosexuals arises because many Americans find homosexuality morally objectionable. This is not to say that the objection is to same-sex attraction , which, if not chosen, cannot be blameworthy. Rather, such discrimination arises because some people find homosexual acts morally objectionable, and therefore, by extension, also object to public approval of them. For a person to be openly homosexual, however, means in almost every case that the person is publicly challenging the moral judgment against homosexual acts. Put more simply, open homosexuality is practically inseparable from public endorsement of homosexual acts.   For those who have moral objections to homosexual acts, then, open homosexuality unavoidably involves a corruption of the public culture because it fosters a grave misunderstanding of the morality of human sexuality.  Seeking to forestall this perceived corruption, they may support public discrimination against open homosexuality in order to suppress its implicit endorsement of homosexual acts.

Can there be a moral right to be free from such moralistic discrimination? I will not venture a complete answer to this question, but will only observe that its investigation is surely bound up with the question whether homosexual acts are in truth morally objectionable. If they are not, then discrimination against those who openly admit to them is an arbitrary disqualification based on mistaken moral scruples. If they are, then such discrimination is defensible as an attempt to maintain a sound public moral culture. On this key question, however, President Obama has attempted no argument. He seems rather to have assumed away any possible controversy so that his opponents’ position will appear to be wholly arbitrary. President Obama has observed a desire being frustrated, and he has concluded that this is an injustice because the desire in question necessarily gives rise to a right. This is, ultimately, a recipe for chaos. The conversion of desires into rights, without any supporting legal or moral argument, can only end by undermining public order and the common good as more and more groups transform their wishes into non-negotiable demands made on society.

When a right is asserted, thoughtful and prudent people will ask: “What is this right’s basis? What are its costs?” Contemporary liberalism’s only answer to these crucial questions is, fittingly: “Don’t ask, don’t tell.” Thus it manifests a dogmatism about rights that is both intellectually weak and practically dangerous.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha. He is the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Copyright 2010 the Witherspoon Institute. All rights reserved.