O’Brien gives us a “pithy summary” of Thomas Aquinas’s ethics by quoting from the Summa Contra Gentiles: “We do not offend God unless we act contrary to our own nature.” That is indeed a good summary of much contemporary Thomistic ethics, according to which we consult our nature for the content of moral norms, and God’s commands for the obligatory force of those norms. And it is a rare point of disagreement between O’Brien and myself, since I agree with him on many things: that there would be no morality without God; that part of morality involves giving God what is due to Him; that in the absence of divine revelation it would be difficult to adhere to absolute moral norms in situations of emergency; that God has legitimate authority; and that His commands “make perspicuous” what we ought and ought not to do.

But we get a better picture of Aquinas’s ethics if we accurately quote Thomas, who writes that we do not offend God “unless we act contrary to our own good,” (nisi ex eo quod contra nostrum bonum agimus). This situates ethics squarely on a foundation of human good, rather than human nature, which is a good thing, since human goods give reasons for action in a way that “conformity with human nature” does not. It becomes intelligible why absolutely impermissible actions are never to be done, since in themselves (i.e., apart from their consequences) such actions are intended to do nothing but damage, destroy, or thwart basic goods, basic aspects of human well-being.

How are those goods related to our final end? It is difficult to see how if one takes our natural end as human beings to be the beatific vision. Better, in my view, is the idea that our natural end is life in communion with all persons, enjoying and pursuing all the goods of persons. We know by revelation that this end will be realized in the Kingdom of Heaven in a way it can never be on earth; but that end provides a focal point for human willing even now: willing that is compatible with such a final end is upright, but willing that is not so compatible is deficient, disordered.

Here we see a great difference between my account of absolutes and Miller’s. Miller says rightly that what is important is the ordering of action to the final end; but he sees that order as largely causal: “claims that certain actions are always wrong are based on claims about the causal structure of the world—claims that certain causes will not have certain effects, regardless of circumstances.”

This sets up the difficulty of establishing what effects we are responsible for, and which consequences of acts are relevant. Miller settles for those effects that are ours, relatively proximate, and, as regards the particular acts in question, ut in pluribus—i.e., for the most part, knowing that effects oft go astray.

But I think that the order that matters for morality is the order of willing, not the order of natural causality. Morality is a matter of the heart, of willing in accordance with our final end. The norm for such willing could be put thus: will only in a way that is in accordance with integral personal fulfillment. An agent who only willed in accordance with this norm would will, in fact, the natural end of man; and would be, in so willing, suited for that end, were that end to be realized. One who wills contrary to human goods, by contrast, unfits himself for that end, a circumstance certainly to be repented of.

So my account of moral absolutes is not that they involve acts whose consequences are, for the most part, contrary to the end of man, but that they involve acts the willing of which is always contrary to that end. I think Miller could (and should) embrace my view, without difficulty: what could be more out of line with a “community of good will” than intending the death of an innocent human being? Accordingly, the will of any who intended, for example, the deaths of innocents in the bombing of Hiroshima and Nagasaki—to say nothing of the many other allied bombing campaigns that targeted innocents—was deficient, disordered; no one, ever or anywhere, should will what they willed.

Let me turn to the question of God’s commands, of which O’Brien makes much. In my earlier discussion, I made the traditional argument that divine commands cannot generate obligations unless there is some reason to obey such commands, a reason that cannot be generated by the commands themselves. O’Brien counters that “a divine command gives you a new reason for doing what the command requires, because God has legitimate authority.” I agree with this: God does have legitimate authority. But both legitimacy and authority are already fully loaded normative notions, and it seems to me that God has neither by virtue of His commands.

I have also argued that God’s commands are not necessary for understanding the obligation-making force of the prescriptions of the natural law. But it is a view common to natural law thinkers that God, recognizing epistemic and motivational deficiencies in human beings vis-a-vis the natural law, provides revealed commands as a supplement. So, if we abstract from the Miller-like suggestion of natural causality, I agree with O’Brien’s claim that God’s “commands make perspicuous to you those acts and omissions without which you cannot reach your final end.” But “making perspicuous” and “making absolutely obligatory” are not the same thing.

My final remarks on the subject of divine commands will be brief and tentative. As is obvious, the idea of divine command exercises a strong hold over both theistic ethics and Christian practice; I will call that idea the “dominant picture.” I want here to investigate whether the dominant picture should be resisted in certain ways. Specifically, I want to raise some perplexities in which I find myself when considering the image of God as divine commander, which can be summarized as follows: why must God’s authoritative and directive speech acts to us be thought of as commands or imperatives?

Well, what are the options? One might think that commands just are the form of speech act—the only such form—by which an authority directs as an authority, and as I have said, I agree that God has authority. So it might seem obvious that the dominant picture is correct.

Nevertheless, consider the following: I have authority over my children, and while I sometimes command them, sometimes I direct without command. I say, for instance, why don’t we do it this way? Or: it would please me if we were to do it this way. Or: I’ve decided that we’ll do it this way. Not everything that I say to them is in the imperative voice.

Perhaps my alleged counterexamples are disguised commands: when I say “Why don’t we do it this way?” I might just be commanding politely. But we should consider the possibility that at least some of the counterexamples are instead authoritative invitations. I have authority, and it is not just the authority of expertise, of knowing what is the best way: my decisions constitute in some cases what will now be the common—and hence best—way in the family, and my announcement of that common way is an act of authority. But I take myself not to be commanding the way but announcing it as an available option for those in the family who wish, in the choice itself, to continue their cooperation with me as the head of our merry little band, and to play their part in that band.

In so acting, I announce no external sanctions for those who fail to comply, as I do on other occasions when I tell my children that they must do such and such, or suffer some punishment. But there is an internal sanction built in, that of failing to act (a) in cooperation with me; and (b) in accordance with the common way, which is partly constitutive of our existence as a family. Because following my will is necessary to avoid these internal sanctions, and for familial well-being, we can further speak of the necessity, or virtue, of obedience for members of my family. God, it seems to me, speaks in this way to us when he shows us His way, and invites us to join Him in it.

But what about when God supplements the natural law with His commands? The precepts of the natural law are obligatory not because they are commanded, but because they are necessary for our well-being with one another and with God. What is added by God’s commanding them? For one thing, we now know we will be separated from God if we willingly disobey the precepts of the natural law, and this is undesirable: friendship with God is a human good to be pursued. So a reason for obedience is thus superadded to the obligations internal to the natural law itself. But how is God’s revelation of precepts of the natural law better understood here as a divine commanding, rather than, say, a divine reminding and authoritative inviting?

One might say: because God’s commands are backed by the threat of coercive sanction, the threat of hell. However, a more plausible view is that hell is the separation of the sinning self from God’s presence; so hell is not an imposed punishment, and threats about hell are actually warnings. In the commandments, God reminds us what the natural law is, and what the intrinsic consequences of failure in the natural law are.

The image of God that emerges from these reflections, and of His relationship to us as we share in His providence through our acts of practical reason and choice, is rather different from the image of God as one who commands obedience and is offended by disobedience. So perhaps what I am really trying to articulate is this: that our view of God’s communication of the law, natural and divine, has been somewhat deformed by our relying too closely on an analogy to the imperative form of speech act associated with human positive law. Echoing O’Brien, I would suggest that the debate over moral absolutes is only one among a number of areas in which that deformation has had its effect.

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

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But consider the range of America’s political-economic challenges: How to balance our budget; how to reform the major entitlements of Social Security, Medicare, and Medicaid; how to get the economy growing again; how to increase employment; how to increase social mobility; how to help the poor.

Though related, these issues are profitably examined one at a time. Poverty, for example, is undoubtedly linked to our debates about government regulation, taxes, and budgets. It is certainly tied to our debates about income inequality, social mobility, and unemployment. But poverty in America is not primarily about any of these issues. And political commentators of all stripes perform a major disservice when they mesh them together.

Thankfully, Lawrence Mead knows this, and has been instructing all who will listen on issues of poverty and policy for the past thirty years. A professor of politics and public policy at NYU, Mead was the intellectual driving force behind the welfare reform act of 1996. His latest work, From Prophecy to Charity: How to Help the Poor, is a concise statement of a lifetime of scholarship. It is a wonderful book that covers the causes of poverty, how we measure it, who the poor are, how government has tried to help, where it’s gone wrong and where it’s succeeded, and how competing ideologies have hindered or helped real policy reform. Though the book is short, it contains a wealth of information and wisdom. (The volume appears in the AEI Values and Capitalism series; I discussed another title in that series, Wealth and Justice, here.)

The critical questions for Mead are these: What do the poor really need? How can we effectively meet that need? Money comes second to what Mead argues the poor truly deserve: a lifestyle transformation. “Progress against poverty,” he insists, “requires programs with the capacity to redirect lives, not just transfer resources.” In reaching that goal, he adds, “recent conservative policies are more effective than what came before, and it would be a mistake to abandon them.”

Mead self-consciously argues against those who “have contended that the poor are entitled to aid regardless of lifestyle or, alternatively, that they should get nothing at all from government.” He appeals instead to Biblical wisdom, where our duties to the poor are based “not on abstractions such as rights, freedom, or equality but on restoring community.” The key, then, is to promote “right relationships”—with spouses, children, employers, and the broader community. To do this, Mead thinks, we need to understand better the causes of poverty.

While government measurements of poverty focus on economic factors, Mead stresses that behavioral dimensions play a larger causal role. Poverty would be simple to fix if it were just about economic need: then we would only have to give more money. But the long-term poor today are unlike the working poor of yesteryear. In an affluent society like ours, Mead argues, “poverty is not usually forced on people for very long by conditions.” Rather, “most have become poor, at least in part, due to not working, having children outside marriage, abusing drugs, or breaking the law.” Simply doling out more money does not counter these underlying causes of poverty, which call for behavior changes that encourage law-abiding, productive lives.

The World Bank classifies moderate poverty as living on less than $2 a day. By that standard, the U.S. has virtually no poverty. In the 1960s, our government’s official measure was set at three times the cost of a minimal food budget, which, adjusted for inflation, came to $17,285 in 2009 for a family of three (consisting of one parent and two children). Given this standard, the official poverty rate was 13.2 percent in 2008 and 14.3 percent in 2009. While these figures note anyone who fell beneath the poverty line in a given year, Mead asks us to focus on those who remain poor for multiple years, not those who hit a temporary rough patch. This long-term group includes 6 to 7 percent of the American population. And while the young, disabled, and elderly used to make up their majority, Mead notes that now they are outnumbered by healthy working-aged people.

Why are people in the prime of their lives poor? Mead argues that “poor families typically arise when parents have children without marrying and then do not work regularly to support them.” This pattern provokes a vicious cycle: children reared in these circumstances grow up to be poor themselves because they are more likely to drop out of school, get involved in crime and drugs, become sexually active at a young age, and never learn the value of an honest day’s work. “By these routes,” he says, “women end up early as single mothers on welfare while men go to prison. … Despite having children, neither men nor women usually attempt to marry or work regularly. That is the immediate reason they usually become poor.” If one graduates from high school, gets a job, marries, and then has kids—in that order—there is very little chance of falling into poverty.

Mead responds to a host of competing arguments about poverty, noting that “poverty is caused mostly by low working hours, not low wages.”  Good middle-class jobs may be hard to find right now, but there are ample low-skilled jobs available: “In 2009, only 12 percent of poor adults who did not work blamed this on their inability to find work. In 2007, before the recession, the figure was only 5 percent.” These jobs, Mead insists, “are still sufficient to avoid poverty and welfare for most families.” Our recent economic downturn isn’t to blame, for “in good times and bad, most poor adults are not even in the labor force, so the recession little affects them.” (In fact, the recession has mainly hit the middle class, and, Mead helpfully reminds us, “inequality and poverty are largely separate problems.”)  While he has a lot to say about employment, Mead has less to say about causes of and responses to the erosion of marriage, where 40 percent of all Americans are born out of wedlock, including 71 percent of blacks.

The welfare reforms of the 1990s worked precisely because they addressed both material and behavioral causes of poverty. While critics argue that welfare reform consisted of budget cuts, Mead notes that after the reform more money was spent helping the poor, not less. But the money came with strings attached—recipients had to work. According to Mead, “Most experts opposed reform, believing that few poor could work, given the barriers they faced. But most welfare mothers successfully left the rolls for jobs, with most of the leavers emerging better off.” This confirmed Mead’s central insight that cultural (and political) expectations, not economic barriers, prevented employment. Mead admits that low-skilled workers do not have an easy life, but he insists that working makes for a better life than not. And how to get people working is a separate question from how to get them moving up once in the job force.

Mead’s arguments partly counter some of those made by Charles Murray. While Murray focused on the rewards (and hence incentives) for bad behavior that welfare provisions provide, Mead argues that “the seriously poor are less calculating than economists suppose. If they were economically rational, they would never have engaged in the patterns that made most of them poor.” And yet, the way in which welfare was provided did keep people from working. So, while research has “not shown that social problems like nonemployment or unwed pregnancy result chiefly from the economic incentives set up by welfare,” he writes, “It is indeed true that liberal social programs have been counterproductive, but that is chiefly because they are permissive, giving no clear guidance about how recipients ought to behave.”

While the first wave of welfare reform largely affected poor women—mothers with children receiving aid—a second round of welfare reform, Mead argues, should find effective programs that put nonworking men into the workforce, and establish better academic and moral standards in schools. Mead unabashedly says that education and welfare need more paternalism. This paternalism is bemoaned by many for being judgmental (not being “value-free”), but this is precisely what Mead thinks the poor need. And what we owe them. Mead argues that the most effective welfare programs administered by the states “all set clearer rules for client behavior and back them up with oversight. Evaluations confirm that paternalistic programs generally perform better than nondirective ones.” Religious and other non-governmental partnerships can play an important role in this, Mead suggests.

While From Prophecy to Charity has certain limitations, it should be read by anyone who cares about government policy that helps the poor. I would like to have seen more discussion about prudential concerns: how to counter government-provided welfare’s crowding out effect on private charity, how to best structure government partnerships, and what is entailed by a precedent of attaching moral strings to welfare when government is run by the morally corrupt.

Mead’s discussion of competing perspectives on welfare also leaves much to be desired, as it consists largely of his own idiosyncratic interpretation of a handful of Biblical passages, and, in justified frustration with religious voices who have opposed welfare reform, he overstates his case against them and too quickly dismisses important voices. He is correct to say that a major problem with the prophetic tradition is its scarcity of guidance for what the rich can effectively do to help the poor, and of requirements for the poor themselves.

As I see it, the two dominant political philosophies of our day are forms of liberalism, but neither deserves the title nor lives up to the merit of classical liberalism. Neither the Right’s form of libertarian liberalism nor the Left’s  form of social welfare liberalism (both of which show strong streaks of lifestyle liberalism) can adequately form the basis of a governing philosophy, especially when it comes to the plight of the poor.

The libertarian argues that the sole purpose of government is the protection of rights, and that the only real rights are negative rights—freedom from force, fraud, and harm, whether perpetrated by other individuals or by governments. Taxing the non-poor in order to assist the poor is robbery, a violation of property rights, and itself a form of injustice. Provided they do no harm to others, individuals should be free to live life as they please, the libertarian argues, even if this means ignoring the plight of the poor. Market forces and private charities, if left free from state interference, will sufficiently succor the needy.

The welfare state liberal champions a conception of government where every citizen solely in virtue of his humanity has rights to adequate material resources necessary for a dignified life. Whether it be John Rawls’s “primary goods” or Martha Nussbaum’s “central capacities,” the state is supposed to equip people with a fair share of what they need in life—but it isn’t to influence how they use that share, nor to place moral conditions on how they receive it. At the heart is a positive right to materials coupled with a negative right from influence.

A sound political philosophy would hold that the state should be concerned about the welfare of all people. This means that our obligation to the poor has to be tied to their well-being, and thus necessarily connected to influencing their behavior. This is best understood not in terms of rights—whether positive ones to welfare or negative ones of noninterference—but in terms of promoting their good, with its material and moral components. In essence, any legitimate care for the poor has to be paternalistic. It has to teach true moral values: that one needs to be educated, that one needs to work, that one needs to marry before having children, that one needs to respect the law.

Classical liberal political philosophers understood this, because they knew that protecting natural rights also entailed promoting what Michael Zuckert has called a “natural rights infrastructure.” This can’t simply be a physical infrastructure of highways and courthouses, but a moral and behavioral infrastructure as well. An earlier political philosophy simply termed this infrastructure the common good. Promoting this necessarily forces us into discussions about human well-being and the moral norms that should govern our behavior. Sound guidance on this is what we owe everyone, poor and rich alike.

Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

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Romney had a tax rate of 15 percent because, apparently, most of his total income for those two years came in the form of capital gains and corporate dividends, both of which are taxed at this lower rate (compared to the top rate for wage income, 35 percent). Leaving aside the issue of capital gains taxes (which involves separate pros and cons), dividends are given a lower rate exclusively to avoid “double taxation,” when the Feds take a bit off the top from the corporation, then a bit more from the individual taxpayer. For illustrative purposes, let’s follow the money from an investor’s pocket and back if there were high taxes on both corporations and personal dividends.

A man named Willard invests $10 million in Company A. This company, in the year 2011, has a profit of $20 million. It decides to pay out 100 percent of its profits in dividends to the 20 million outstanding shares (to make the math simple). Willard owns 1 million shares, so would receive $1 million in dividends. But Company A must pay a 35 percent corporate income tax on its profit, so it would have 35 percent less to give to each shareholder. Willard would then receive only $650,000 in dividends after corporate taxes. Since Willard is in the top income bracket, the federal government would then take another 35 percent, leaving him with $422,500 after personal income taxes. Willard would suffer a tax loss of 57.75 percent of the income from this corporate investment.

One can see why this could be a problem. If investors stand to lose almost 60 percent of the value they would have realized from corporate dividends, they will be less likely to invest in corporations. New businesses would have trouble finding the capital to get started while fewer corporations would be able to expand and hire. Hence, double taxation would be an economic depressant. To avoid this result, dividends are taxed at a low rate of 15 percent. The result is that people like Romney end up only paying 15 percent on their income from dividends, and that strikes many wage-earners as unfair (“His $1,000 from dividends is worth just as much as my $1,000 in wages; why does he get a break and not me?”) But as long as the corporate income tax remains, any increase in the dividends rate will de-incentivize investment.

So why not just end the corporate income tax? There are many reasons to do so besides avoiding double taxation—reasons that Republicans and Democrats can support.

Reason #1: Our current Corporate Income Tax is uncompetitive.

Our top federal corporate income tax (CIT) rate of 35 percent is the second highest in the world, behind only Japan. The average top rate of other industrialized nations is 25 percent, the rate of China. Simply put, this harms all domestic businesses, making them spend money on taxes that could go toward expansion and job creation. It increases the cost of doing business in America, causing firms to relocate elsewhere. Lowering—and even better, eliminating—the CIT would provide a significant economic boost to our slow economy.

Reason #2: The Corporate Income Tax punishes Labor

We might be forgiven for thinking that the CIT is a good way to ensure that “rich” corporations pay their fair share in a society that gives them special benefits, such as limited liability. But we would be wrong.

Studies show that rather than taxing the vast bank accounts of the corporate world and trimming beefy corporations down to size, the CIT is ultimately a tax on labor. The corporations pass the tax burden onto their employees by lowering their wages. In 2006, William C. Randolph of the Congressional Budget Office estimated that “domestic labor bears slightly more than 70 percent of the burden” of the CIT. A research study at Oxford University concluded that “a substantial part of the corporation income tax is passed on to the labor force in the form of lower wages.” In this sense, the CIT is regressive. Those who have less income (workers) eventually bear more of the tax costs. This works against the tax code’s commitment to a kind of social fairness, where those who benefit more pay more and those who benefit less pay less.

Reason #3: The Corporate Income Tax has been rigged by Big Business, and probably always will be.

Besides being (in practice) a regressive tax that burdens labor with its costs, the CIT also causes an unfair and distorted business environment as big corporations work to avoid taxes and create loopholes in the system. As President Obama himself noted in last year’s State of the Union address, “Over the years a parade of lobbyists has rigged the tax code to benefit particular companies and industries. Those with accountants or lawyers to work the system can end up paying no taxes at all. But all the rest are hit with one of the highest corporate tax rates in the world. It makes no sense, and it has to change.” The President was right: recent studies have shown this exact trend, highlighting outrageous tax avoidance by big corporations.

A study released last November by Citizens for Tax Justice and the Institute on Taxation and Economic Policy noted that the effective tax rate (after deductions and other loopholes) of the 280 largest and most profitable U.S. corporations for the past two years (2009 and 2010) “averaged only 17.3 percent, less than half of the statutory 35 percent rate.” In fact, thirty companies—including Pepco Holdings, General Electric, Verizon, Wells Fargo—had a tax rate of zero or less (meaning, the government paid them, in subsidies and the like, more than they paid the government). Eventually, smaller corporations suffer in the competitive marketplace because they can’t afford such high-priced tax lawyers and lobbyists. Different industries are also subject to different tax burdens, which further distort the fairness and predictability of the market. For example, U.S. retailers and construction firms generally pay around 30 percent effective rate on income taxes, but financial services companies pay only 20 percent and mining pays only 6 percent.

This topsy-turvy world of tax avoidance and special tax advantages, with GE paying less income tax in total than your local hardware store, is as outrageous as it is predictable. The corporate form allows for vast concentrations of capital, which then have an interest in avoiding taxes. A report released only weeks ago estimates that 280 profitable Fortune 500 corporations spent $2 billion on federal lobbying from 2008–2010. During this time, these same companies received $223 billion in tax rebates and credits. With this kind of money at stake for the biggest corporations, lobbyists and lawyers and politicians get very busy. We can expect that a corporate income tax will always be a feeding frenzy for the largest corporations, which have all the time and, almost literally, all the money in the world. (These 280 companies had profits during this time period of $1.3 trillion in U.S. profits, more than the entire yearly GDP of South Korea.) If we end the CIT, smaller businesses might have more of a chance to compete on the merits rather than on the tax bill.

Why support the Corporate Income Tax in the first place?

The CIT still has its supporters who offer three main arguments in favor of it. First, some argue that it is easier to tax a corporation than an individual, and so the corporate tax provides an important and relatively simple source of income for the federal government. The CIT eliminates some transaction costs since it helps fund the government with larger tax payments from fewer taxpayers. Furthermore, they insist, it is easier to obtain financial information from corporations because they are required to keep documents, which eases enforcement of the tax rules. But as noted before, if corporations are potential taxpayers because they have a lot of money, then they also have the most resources to avoid paying taxes. When the biggest corporations pay an average effective tax rate of around half of the stated tax rate, and when a significant number pay nothing at all, the wealth of corporations begins to be more of a problem than an opportunity for the taxing authorities.

Second, some believe that a corporate tax is justified by the benefit conferred on corporations for limited liability. Corporations get a benefit from society, the argument goes, so they must pay for it. But this more theoretical line of reasoning fails to convince: corporations themselves are merely fictional persons. The idea that they should “pay their fair share” in society is wrong, for the simple reason that if a corporation is taxed, it is not the corporation that bears the burden (nothing “burdens” a corporation, because corporations don’t have feelings, suffer loss, or deal with hardship) but instead some real person, often a worker, who has less income than he or she previously had. It is laudable to try to make the rich owners of capital in the corporate world contribute a just amount for the maintenance of the system that benefits them, but in headlong pursuit of this goal the CIT ends up shearing the wrong sheep.

Third, corporate taxes are defended as a necessary backstop to a personal income tax. As Uwe Reinhardt of Princeton has written, “If the profits of corporations were not taxed, the corporate form of enterprise would become one more major tax shelter through which wealthy people could shield their income from taxation. That probably is the main reason why abolishing the corporate tax has never had any political traction, in the United States or abroad.” The specter of the income-shifting wealthy individual who takes advantage of tax-free corporations to shelter himself from “paying his fair share” is certainly a politically salient one. But is it so dangerous that it requires a CIT with all its economic distortions and secondary effects?

Probably not. The IRS is quite adept at fighting back against tax avoidance. Megan McArdle of The Atlantic writes:

While owners of corporations do manage to chisel at the margins, the smart ones don’t funnel their whole personal budget through the firm, because doing so is a sure route to an audit and a hefty fine. [Without the CIT] there’s no reason to worry about wholesale abuses of the system, because the IRS is already reasonably adept about ferreting these out.

In other words, the U.S. need not fear rampant individual income tax avoidance if the CIT is eliminated. With the funds freed from the losing battle of corporate tax enforcement and added to individual tax enforcement, our tax authorities will be better equipped to enforce these rules. If wealthy individuals still find ways to use corporations as tax shelters, additional rules can be passed to help prevent them as needed. We might establish some sort of cap on retained earnings, or tax corporate earnings directly to the stockholder on something like a pass-through basis. Proper enforcement and good rules can keep the tax dodgers at bay, without the unique distortions and unfairness of the CIT.

Imagine politics without a Corporate Income Tax.

We can expect many good things from the elimination of the CIT, starting with the removal of a huge amount of special interest money from politics. Without the CIT there would be a much smaller financial incentive for corporations to lobby for special tax rules and tax breaks. Moreover, the elimination of the CIT would allow a simplification of the personal tax code by taxing dividends like the normal income they obviously are. It would make our tax environment the most business friendly in the world. It would prevent big businesses from gaining a tax advantage over smaller ones. It would ease the financial burden on labor, whose wages are depressed by the CIT. You can almost hear the rallying cry at the first joint Occupy Wall Street/ Tea Party Rally: “Tax Romney’s Dividends – End the Corporate Income Tax!”

Thomas Haine is a lawyer and a First Lieutenant in the U.S. Army on educational delay, soon to join the U.S. Army JAG Corps.

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So, what argument does Pinker give against making use of dignity in discussing issues of bioethics? He writes,

First, dignity is relative. One doesn’t have to be a scientific or moral relativist to notice that ascriptions of dignity vary radically with the time, place, and beholder. In olden days, a glimpse of stocking was looked on as something shocking. We chuckle at the photographs of Victorians in starched collars and wool suits hiking in the woods on a sweltering day, or at the Brahmins and patriarchs of countless societies who consider it beneath their dignity to pick up a dish or play with a child.

Pinker fails to realize that autonomy is also relative. Kant, the originator of the contemporary emphasis on autonomy, considered it always contrary to autonomy, the self-given universal law of practical reason, to commit suicide or to have sexual activity of any kind outside of a marriage between one man and one woman. Contemporary advocates of using autonomy as the basis for ethics reject these positions with scorn. Now autonomy is used to attempt to justify physician-assisted suicide as well as freedom of “sexual expression.” So, if dignity cannot be used in bioethics because it has been understood in various ways over the ages, this standard likewise excludes appealing to autonomy in bioethical disputes.

Second, Pinker notes that dignity is fungible:

The [President’s] Council and [the] Vatican treat dignity as a sacred value, never to be compromised. In fact, every one of us voluntarily and repeatedly relinquishes dignity for other goods in life. Getting out of a small car is undignified. Having sex is undignified. Doffing your belt and spread-eagling to allow a security guard to slide a wand up your crotch is undignified.

But Pinker’s premise also renders autonomy problematic, since autonomy too is fungible. Soldiers give up autonomy when they enlist for military service. Employees give up autonomy when they sign contracts agreeing to perform certain services and refrain from doing other activities that constitute a conflict of interest. Police officers, FBI agents, and politicians relinquish autonomy when they swear to enforce the laws of our nation. Lawyers and psychologists give up autonomy in speech in preserving client or patient confidentiality. Do the actions of these people reveal that autonomy is a trivial value, well worth trading off for money, public order, confidentiality, the good of raising children, or health?

Third, Pinker argues that dignity can be harmful. He writes,

In her comments on the Dignity volume, Jean Bethke Elshtain rhetorically asked, “Has anything good ever come from denying or constricting human dignity?” The answer is an emphatic “yes.” Every sashed and be-medaled despot reviewing his troops from a lofty platform seeks to command respect through ostentatious displays of dignity. Political and religious repressions are often rationalized as a defense of the dignity of a state, leader, or creed: Just think of the Salman Rushdie fatwa, the Danish cartoon riots, or the British schoolteacher in Sudan who faced flogging and a lynch mob because her class named a teddy bear Mohammed. Indeed, totalitarianism is often the imposition of a leader’s conception of dignity on a population, such as the identical uniforms in Maoist China or the burqas of the Taliban.

However, it is even more obvious that autonomy can be harmful. Consider the case of Desmond Hatchett who, before the age of thirty, exercised his sexual autonomy by fathering twenty-one children with eleven different women. Exercising her reproductive autonomy in similarly irresponsible fashion, Nadya Suleman, unemployed and unmarried, used in vitro fertilization to add eight more babies to join her other six young children at home. Drug abusers exercise their autonomy in harming themselves physically and mentally, often to the point where they become a drain on society. Politicians regularly exercise their autonomy in such a way as to cause unreasonable taxes, unfair laws, and unjust wars for their own political gain. Indeed, misuse of autonomy causes more harm, arguably much more harm, than misuse of dignity.

A fourth and unoriginal argument from Pinker for abandoning dignity echoes Ruth Macklin, who highlights the ambiguous ways in which the term “dignity” has been used in bioethics. The ambiguity of the term is an important issue that deserves serious consideration, something that Pinker himself fails to offer. He also fails to notice that “autonomy” is used in a variety of ways, so the difficulty of ambiguous terms is not unique to the term “dignity.” Does “autonomy” mean anything actually desired by the agent, even if the agent is brainwashed or under the influence of drugs? Does autonomy mean “informed consent” (which itself is a term used in various ways)? Does autonomy means rational, self-given law, so that an irrational request cannot be considered autonomous? Indeed, there is no term that cannot be used ambiguously. Admittedly, “dignity,” in the contemporary discussion, is even more prone to ambiguous usage than “autonomy,” but this is hardly ground for dismissing it entirely or for prejudicially abandoning attempts at disambiguation.

Disambiguation of the term dignity is done quite well by Daniel P. Sulmasy, in the very book Pinker criticizes. Sulmasy distinguishes dignity as attributed, dignity as intrinsic worth, and dignity as flourishing. Dignity as attributed is the worth human beings confer on others or on themselves. Attributed dignity comes in degrees and is at issue in some of the examples raised by Pinker in his argument that dignity can be harmful. Dignity as intrinsic worth is understood by Sulmasy as “the value that human beings have simply by virtue of the fact that they are human beings” rather than in virtue of performance, health, wealth, location, or social status. Dignity as flourishing is understood as the excellence of a human life consistent with, and expressive of, intrinsic dignity.

This simple disambiguation removes the alleged contradictions seen by Pinker. Slavery and degradation are morally wrong because they take away someone’s dignity as flourishing. Nothing you can do to a person, including enslaving or degrading him, can take his intrinsic dignity away. Dignity as attributed reflects excellence, striving, and conscience, so that only some people achieve it by dint of effort and character. Everyone, no matter how lazy, evil, or mentally impaired, has intrinsic dignity in full measure, but not dignity as flourishing or as attributed.

Even if we can successfully disambiguate the term, why is dignity important? The concept of dignity does a better job than autonomy in describing and accounting for the intrinsic value of every human being. We are valuable not simply because of our choices, and still less do we have value only while we are exercising our autonomy. We have value even when we are not choosing or cannot choose. In his 2009 Tanner Lectures at UC Berkeley, “Dignity, Rank, and Rights,” Jeremy Waldron pointed out that in ancient times dignity was accorded in particular to persons regarded as royalty or nobility. Noble persons were accorded rights, privileges, and immunities that accorded with their elevated rank. Contemporary society at its best does not reduce the noble but elevates the commoner, making every single human person equal in rank to the Duke or Lady. Although these ideals are often imperfectly realized in our society, still Waldron has a point when he writes, “we are not like a society which has eschewed all talk of caste; we are like a caste society with just one caste (and a very high caste at that): every man a Brahmin. Every man a duke, every woman a queen, everyone entitled to the sort of deference and consideration, everyone’s person and body sacrosanct, in the way that nobles were entitled to deference or in the way that an assault upon the body or the person of a king was regarded as a sacrilege.” The term dignity better captures than most, if not all, other terms the elevated status of the human person.

Do we have any reason for ascribing to all human beings such intrinsic dignity? In an earlier essay, I suggested that there are a number of ways to argue for the proposition that all human beings are endowed with intrinsic dignity and certain inalienable rights. The first is that our dignity should be based on who we are, the kind of being that we are, rather than on how we are functioning in the moment. Dignity should be based on our membership in the human family, rather than on any particular performative activity in which we could engage. Our functioning, whether it be understood in terms of our ability to experience pleasure and pain, or our consciousness, or our intelligence, comes in many degrees. If we think that our value as persons is based on a degreed characteristic, an accident in terms of Aristotelian metaphysics, then we cannot secure equal basic dignity and equal basic rights for all persons. We should therefore base our fundamental ethical judgments on the substantial identity of who we are rather than on any accidental degreed quality. Since all human beings are endowed with the same nature, members of the same kind—homo sapiens—they all share equally basic rights and dignity.

Christopher Kaczor is Professor of Philosophy at Loyola Marymount University and the author of The Ethics of Abortion: Women’s Rights, Human Life, and the Question of Justice (Routledge 2011). This piece is adapted from his remarks delivered at the conference “Radical Emancipation” sponsored by the Notre Dame Center for Ethics and Culture on the campus of the University of Notre Dame on November 10-12, 2011, and an article in the National Catholic Bioethics Quarterly.

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A law is unjust only if the distinction it creates is not essentially related to a legitimate purpose of law. But whatever one holds about the morality of homosexual acts, it is clear that the state does have an interest in promoting and regulating marriage as traditionally defined, and that the sexual relationships of same-sex couples are distinct in kind from that. So, even if—contrary to fact—the state did have an interest in promoting same-sex sexual relationships, that interest would be different from the one served by promoting marriage. And so the two types of relationships or arrangements should not be lumped together. Moreover, falsely to equate the two is to obscure the nature of marriage.

What is marriage? The traditional view of marriage is: the union of a man and a woman, who have consented to share their lives, on the bodily (sexual), emotional, and spiritual levels, in the kind of community that would be fulfilled by having and raising children together.

Two points need emphasis here. First, marriage is a bodily union, as well as emotional and spiritual. For in sexual intercourse—which consummates the marital union—the spouses become biologically one: they complete each other to form a single subject of a single biological action, the kind of action that could procreate, provided conditions outside their conduct are present. This biological union (a procreative-type act) embodies their procreative-type union (provided they have consented to share their lives in that kind of union).

Second, marriage is the kind of union whose fruition is procreation. It is the kind of union that would be fulfilled by having and raising children together; the union of the spouses is embodied, prolonged, and enriched by enlarging into family. Still, marriage is not a mere means in relation to procreation, but a sharing of lives (bodily, emotionally, and spiritually) that is good in itself—and so a man and a woman who have consented to such a multi-leveled union are genuinely married, and have an intrinsically fulfilling marital union, even if it turns out they cannot procreate together.

Now of course not all agree with the traditional definition of marriage. But the point I want to make is simply this: marriage, as traditionally defined, is a distinct type of community and not an arbitrary set. Unmarried cohabitators have a different type of relationship. Alliances to raise children also are not necessarily marriages: a group of celibate religious women running an orphanage, for example, are not married. And, plainly, same-sex sexual relationships are a different kind of relationship: they cannot become biologically one, nor is their relationship of the kind that would find its fruition in conceiving, bearing, and raising children together. (True, same-sex partners can form an alliance to raise children—for example, those from a previous marriage or produced by artificial reproduction; but that alliance is not an extension or prolongation of a bodily-emotional-spiritual union already begun, as is the case in marriage.)

Now it is precisely the distinctive features of marriage that ground the state’s interest in promoting and regulating it, and that make the general strength or health of marriage a public good. First, marriage is a distinctive way in which men and women are fulfilled, an irreducible aspect of their flourishing, and one that can be easily misunderstood. And so marriage needs cultural support—and can be harmed by cultural confusion about it. Clarity within the general culture about the value and nature of marriage enables young men and women, as well as those already married, to participate more fully than they otherwise would in this distinctive good—just as a clear public understanding of health or learning assists individuals and families to participate more fully in those goods.

Second, while good in itself, and not a mere means to an extrinsic end, marriage also provides the crucial social function of encouraging parents (and potential parents) to commit to each other and to whatever children they may have. A healthy and strong marriage culture will provide the safest and healthiest environment for children. For these reasons it is in everyone’s interest for the state to promote a sound understanding of marriage, and certainly to avoid obscuring its nature.

Since a same-sex couple is unable to form the kind of union marriage is, not granting same-sex couples marriage licenses is simply a decision by the state not to engage in a confusing and harmful fiction. Marriage is a certain kind of union. Denying a marriage license—or the privileges, protections, and obligations of marriage—to those who are unable to marry is not unjust discrimination. The state denies marriage licenses to threesomes or foursomes (refraining from declaring polyamorous groups marriages) and denies marriage licenses to twelve-year-olds (requiring valid consent for a marriage). These denials are not unjust because threesomes, foursomes, and twelve-year-olds are unable to form the kind of union that marriage is. But the same is true of same-sex couples. So, just as the distinction between eighteen-year-olds and twelve-year-olds is relevant to the purpose of marriage—because the former but not the latter are actually able to form the union that is marriage—in the same way, the distinction between opposite-sex couples and same-sex couples is relevant to the purpose of the marriage laws, because the former but not the latter can actually form the kind of union that marriage is.

According to same-sex “marriage” proponents, the public interest served by marriage laws is the stability of households. For example, in striking down California’s pro-marriage constitutional amendment called Proposition 8, Judge Vaughn Walker claimed: “The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace.” Stability of households might of course be a legitimate public aim, but laws to promote that (and to provide benefits and privileges for stable households as such) are not marriage laws. Such laws, benefits, and so on, would—if applied justly—have to be given also to groups who do not have sexual relationships and groups not pledging permanence and exclusivity.

Clearly, though, same-sex “marriage” supporters want much more than certain benefits and privileges. Discussion of concrete benefits such as hospital visitation, inheritance rights, and so on, is really a side issue—such benefits could be secured by other means for individuals who need them (for example, a durable power of attorney for health care, a will, etc.). Nor—contrary to how it is usually portrayed—is the same-sex marriage proposal aimed at tolerance, since persons with same-sex attractions are already free to engage in private sexual behavior and to establish for themselves long-term romantic and sexual relationships. Rather, what proponents of same-sex “marriage” principally desire is the social affirmation and endorsement of homosexual relationships as such. Judge Walker indicated this point clearly in his Proposition 8 decision: “Plaintiffs [some same-sex couples] seek to have the state recognize their committed relationships . . . . Perry and Stier seek to be spouses; they seek the mutual obligation and honor that attend marriage.”

So, the proposal is for the state to promote something called marriage, and that marriage is to be understood in a way that will include same-sex partners. This sounds like old news. But what, on their view, is the thing called “marriage,” and why should the state promote it? What distinguishes marital unions from others, such that the state should promote them? One cannot just pronounce that these couples will now count as married; there must be something one means by “being married,” something held in common by all married couples. But the same-sex “marriage” position cannot provide a coherent account of what that something is.

If marriage is not a bodily, emotional, and spiritual union of a man and a woman, of the kind that would be fulfilled by procreation, then what makes a union marriage and why should the state support it? It is not simply a union that is formed by a wedding ceremony: that would be a circular definition. Nor is every romantic and sexual relationship a marriage, and certainly there is no point in the state promoting all such relationships. Perhaps one will say that it is a stable, committed, and exclusive romantic-sexual relationship. But how stable would a romantic-sexual relationship need to be in order to be a marriage? Suppose John and Mary have a romantic-sexual relationship while college students but plan to go their separate ways after graduation: is that stable enough to be a marriage? If not, why not?

Or suppose Joe, Jim, and Steve have a committed, stable, romantic-sexual relationship among themselves—a polyamorous relationship. On what ground can the state promote the relationship between couples, but not the relationship among Joe, Jim, and Steve? The argument here is not a slippery slope one. Rather, the point is: There must be some non-arbitrary features shared by relationships that the state promotes which make them apt for public promotion, and make it fair for the state not to promote in the same way other relationships lacking those features. Without this the distinction is invidious discrimination. The conjugal understanding of marriage has a clear answer: (a) marriage is a distinct basic human good, that needs social support and that uniquely provides important social functions; (b) marriage’s organic bodily union and inherent orientation to procreation distinguish it from other relationships similar in superficial respects to it. But the same-sex marriage proposal’s conception of marriage has no answer. In fact, its conception of marriage is actually an arbitrarily selected class, and so the enactment of this proposal would be unjust.

The problem is not solved if one adds to one’s description or definition of marriage, that it must be a permanent commitment (as Judge Margaret Marshall did in her decision striking down Massachusetts’ marriage law: “It is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage”). For it is fair to ask: why should the commitment be exclusive and permanent? The college students’ relationship (lacking permanence) and the celibate monks’ relationship (lacking exclusivity—others can join the religious order), both form households and contribute to social stability. In contrast, the conjugal understanding of marriage allows a clear answer to these questions: since marriage is a bodily and procreative-type union, and an irreducible basic good, it is non-arbitrarily distinct from other types of relationships. The promotion of this kind of relationship, for its own sake (because it is a basic good), and for the sake of children generally (since a strong marriage culture provides a safe haven for children), makes it in accord with justice to recognize, as marriage, only a relationship between a man and a woman, pledged to be permanent and exclusive. The conjugal conception of marriage is just and coherent; the same-sex marriage proponents’ conception of marriage is unjust and incoherent.

Patrick Lee is John N. and Jamie D. McAleer Professor of Bioethics at Franciscan University of Steubenville.

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This development came to mind when reading Ryan Anderson’s recent admonition, published here in Public Discourse, that conservatives should pay more attention to social justice. Anderson identifies two concerns about capitalism: First, capitalism tends to promote materialism, which corrupts culture and morals. Second, though capitalism benefits the poor more than non-capitalist systems, there remains the question whether the prosperity that capitalism has created is distributed justly. Anderson invites conservatives to consider what obligations individuals might have in justice to share their wealth.

Anderson’s challenge is well-timed. Material inequality is presently a hot topic, with good reason. And he is right that the champions of economic freedom can do more to affirm the obligation that each of us has to provide for the least well-off. One wonders, is it possible to challenge both the collectivist practices that have impoverished Cubans (and millions of others) and the radical individualistic claims that are often invoked in support of free economic institutions?

It seems that any account of how to improve our system of free enterprise ought to begin by observing what we already do well. The United States, for all of its faults, is a generous nation. Set aside the aid and development assistance that the United States government spreads around the world. Look merely at the actions Americans take through our private associations and institutions. To take just a few examples, American-based non-profits fight slavery and sex trafficking; build sustainable drinking water resources in impoverished villages; provide micro-finance loans to the world’s deserving poor; create educational opportunities for under-privileged urban youth; and visit those in prison. American individuals, foundations, and corporations gave nearly $291 billion in 2010, despite the hard times. Of this, $211.77 billion came from individual donors. More than a quarter of Americans over the age of 16 are reported to have volunteered through or for organizations, and in 2009 volunteers contributed service worth approximately $169 billion.

If social justice is primarily a matter of equal distribution of resources, then why do Communist nations such as Cuba do so little, by comparison, to promote justice? (Are there in Cuba any such organizations as those listed above?) On the other hand, it seems equally clear that a defense of free markets is not the same as a defense of justice. Charity is not a market exchange.

These are obvious facts, but one must sometimes call obvious facts to mind. Here’s another fact that bears observing: all of the organizations enumerated above, and many others like them, are faith-based institutions, run and financed by people who take religious teachings as true and obliging. They are members of faith communities, who subject their own preferences to moral truth claims, and submit in varying degrees to the authority of clergy, religious teachers, and traditions. They sacrifice in some degree their individual autonomy for the sake of some good greater than themselves. They are, in short, communal beings who act through communal means for common goods.

This observation suggests an answer to the materialism that lurks within capitalism, and which threatens the good that capitalism has achieved. If free institutions protect only the rights of the individual to pursue his own material comfort, then they are difficult to reconcile with the demands of justice. But viewed as communal institutions that serve truly common goods—ends that are both good for all and known to all, though realized in plural and incommensurable varieties—free institutions can act as vehicles of both opportunity and justice. Indeed, they might render obsolete the trench warfare between the individual and the state that pervades much contemporary public discourse about questions of justice.

Take, for example, the institution of private property. If property is viewed through the usual lens, it distends in tension between the individual preferences of property owners and the collective good of the greatest number. On this view, property must either free the individual to pursue whatever he finds subjectively satisfying, or instead sacrifice the individual’s property rights for the sake of some greater societal end. Both of these options are troubling. Property rights proponents rightly excoriate collectivist approaches to property, in which the rights and interests of some property owners are sacrificed for a greater collective good, often to the benefit of the wealthy and well-connected. This logic was on display in the Supreme Court’s decision in Kelo v. City New London, which upheld the taking of a private citizen’s home to make way for a redevelopment plan, the primary beneficiaries of which were to be Pfizer and private developers. The means were unjust and contrary to the constitutional text, and the end used to justify the means, renewed economic prosperity, never materialized.

On the other hand, state interference in property looks more attractive to many people as the gap between rich and poor grows wider, and particularly as opportunities for the poor become fewer. Some wonder why property rights should protect consumption at the expense of one’s neighbors. A particularly galling abuse is strategic default, in which a homeowner who owes more than his house is worth (and in many cases purchased more house than he needed and could prudently afford), but is able to make payments on his mortgage, nevertheless defaults in order to avoid the loss. In states that do not permit lenders to seek recourse against the defaulting mortgagor in his personal capacity, that mortgagor walks away from his obligation without cost to himself. His neighbors bear a cost, however, in depressed real estate values.

What if property could serve truly common goods, which are reducible neither to individual preferences nor to the collective decisions of political bodies? Property, in the central case, is neither an atomistic nor a collectivist institution. Indeed, when it is working at its best, property does much to promote human flourishing, enabling property owners to realize common goods both for themselves and for their families and communities. Communities pursue goods that are truly good for all, the value of which is knowable by all. Property, understood as a communal institution, can and should serve these goods.

In order to work properly, property must to a large extent be a free and independent institution. The private charity described above would not be possible if citizens were not free to exercise sovereignty over their assets. And something equally valuable would be lost, as well. Charity makes a difference not only to the material condition of the recipient but also to the moral condition of the donor herself; it makes the donor a different sort of person. But the charitable act could not have this effect upon the charitable person if it were coerced. One who is required by law to give to another is not making the other person a reason for her action. She has not established a moral connection with the recipient.

On the other hand, the law need not recognize rights to use assets to satisfy whatever desires individuals happen to have, particularly where those satisfactions cause harm. Property is properly directed, at least to some extent, toward ends that the community identifies as worthwhile and away from ends that the community perceives as harmful. Freedom to do good things with one’s property need not conflict with the obligation to act rightly toward one’s neighbors.

All of this suggests a way forward on questions of social justice. A successful account of social justice must affirm the primacy of communities, and institutions directed by communities, over both the individual and the state in promoting human flourishing. The job of the individual in promoting social justice is to act in concert with others in his or her community to serve real needs, both within the community and in other communities. The job of the state is to support and enable free institutions—the church, the family, property ownership, charitable organizations, for-profit businesses, trade groups—to do their good work. This perhaps is not all that social justice requires, but it is a good place to start.

Adam MacLeod is an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law.

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First, the areas of agreement: O’Brien and I agree that human beings have a definite nature, that this nature implies a certain final end for human beings, and that human actions are morally right or wrong depending on whether they are ordered as means to that end. We further agree that human nature was created by God, who ordains human nature to its final end and commands us to attain that end. Thus, by acting well, we perfect our nature and obey and please God, but by acting badly, we act contrary to our nature and disobey and displease him. A complete moral theory therefore involves God in various important ways, including in giving a full description of the final end (which involves contemplating God) and in explaining the nature of moral obligation (which involves obeying Him).

Moreover, O’Brien and I also agree that, notwithstanding the foregoing, in treating many ethical issues we can avoid referring to God. I believe that this is possible because we can work from a description of the final end that theists and atheists can both accept as being true as far as it goes (e.g., that the end is rational activity in a community of goodwill) and then consider the relationship of actions to that end.

O’Brien and I disagree about whether, having restricted our premises in this way, we can show that there are some actions that are always wrong, regardless of the circumstances. I think this can be done; O’Brien thinks it cannot.

Before going into why we disagree, it’s worth recalling why, in a eudaimonistic system, some actions are always wrong. The reason is that, for at least some ends, there are actions that are never ordered as means to those ends, regardless of the circumstances in which the action is chosen. For instance, if the end is winning a baseball game, intentionally walking in the winning run in the bottom of the ninth is never ordered to the end. Hence, given a description of the final end, if there are some actions that are never ordered to that end, these actions will be always wrong. In a eudaimonistic system, therefore, claims that certain actions are always wrong are based on claims about the causal structure of the world—claims that certain causes will not have certain effects, regardless of the circumstances.

Now, in an earlier article, O’Brien had argued that, in order to demonstrate that certain actions ought never be done, “you need to be able to appeal to God’s legislation of the moral law.” This is not so, and the reason is that God’s legislation does not affect the causal structure of the world, does not change which actions are ordered to which ends. Hence, unless we are adopting some kind of divine command theory of morality, an absolute divine prohibition on a certain kind of action will not help explain why such actions are always wrong. Given a kind of action, either such actions are never ordered to the final end, or else sometimes they are. If such actions are never ordered to the final end, then for exactly that reason such actions are always wrong, and there is no need to rely on a divine prohibition to ground their wrongness. On the other hand, if such actions are sometimes ordered to the final end, then God would not absolutely prohibit them, for it would be senseless to prohibit such actions in those circumstances in which they are actually ordered to the final end, and God does nothing senselessly. Hence, I stand by the conclusion in my earlier article that bringing in divine prohibitions does not help us explain why some actions are always wrong.

But as O’Brien ably shows in his latest article, God can figure in moral theory in various ways, not just as a legislator. Thus, in this article O’Brien has a quite different argument about why we need God to show that certain actions are always wrong. He writes that, if we bracket the existence of God, “it is difficult to see how the final end could be specified determinately enough to demonstrate that certain kinds of injustice, such as intentionally killing the innocent, could never be chosen in order to advance the final end.”

Now, this seems to be an attractive line of argument, for it is true that the less definitely the final end is specified, the more difficult it becomes to show that certain actions are wrong. The assumption, however, is that complete ethical theories that mention God give very definite descriptions of the final end (thus supporting arguments that some actions are always wrong), but that these descriptions are weakened and made vague when we re-describe the final end more generally to avoid mentioning God (with that result that such arguments no longer go through).

This, however, is simply not the case. In his full-blown and expressly theological ethical theory, Aquinas describes the final end as “the vision of the divine essence” (Summa Theologiae Ia-IIae.3.8), which is surely a much grander thing than my “rational activity in a community of good will,” but it hardly provides a more determinate basis for explaining why certain actions are always wrong. Indeed, in explaining why intentionally killing the innocent is always wrong, Aquinas has but the briefest and simplest of arguments: he merely says that the lives of the innocent conserve and promote the common good (and so the attainment of the final end), and that therefore killing them is always wrong (Summa Theologiae IIa-IIae.64.6). This argument makes no use whatsoever of the theological character of the final end, and so such an argument is quite as open to me with my definition of the final end as it was to Aquinas with his. If it suffices for him, it suffices for me as well.

Of course, O’Brien will say that it does not suffice, that such arguments prove not that killing the innocent is always wrong, but only that it is generally so. We still have to worry about the extreme cases, like the bombing of Hiroshima and Nagasaki, in which killing the innocent seems to advance the final end. What are we to say about such cases?

As Aquinas’s argument about killing the innocent suggests, the description of the final end employed—whether it be theological or not, and regardless of its specificity—is largely irrelevant. For, no matter how the end is specified, we can always invent sufficiently bizarre circumstances such that, in those circumstances, performing the action reputed to be always wrong will in fact advance the end.

For instance, take Aquinas’s ethics, in which the final end is the vision of the divine essence, and then assume that, if I but kill this one innocent man, untold millions will receive the grace of repentance and so come to share the beatific vision in heaven, thus greatly glorifying God. (Indeed, if he had had more insight into the Scriptures, Caiaphas might have seen himself as being in precisely this situation.) In such a case, killing the innocent seems to advance this fully theological final end. Or again, I said above that walking in the winning run in the bottom of the ninth is never the way to win a baseball game. But what if I know that the opposing team has been cheating, that the man at bat has a bad conscience about it, and that, if I walk him in, he will be overcome with remorse and will confess the whole scheme, with the result that the umpires will declare that the cheating team has forfeited the game and my team wins after all? In such circumstances, walking in the winning run actually wins the game for my team.

The problem with such examples, just as with the Hiroshima and Nagasaki problem, is that they trace the consequences of our actions too far. Only philosophers think that I am responsible for all the foreseeable consequences of my actions, and thus that all of these consequences must be taken into account in determining whether my action advances the final end. Normal people realize that my responsibility is more circumscribed. Which consequences of my action are properly attributed to me—and so count in determining whether my action advances the final end—and which consequences are too remote is an extremely difficult question. The answer in any particular case will depend heavily on the particular facts, but saying that all foreseeable consequences count goes too far.

There is a clear parallel in the law, for there is an immense body of legal doctrine concerning what lawyers call proximate causation, the whole purpose of which is to determine for which of the consequences causally following from his actions a defendant may be held liable. (See Prosser & Keaton on Torts, §§ 41-45.) Although, in general, defendants are responsible for the reasonably foreseeable consequences of their actions, as when a man who builds a fire on his own property on a windy day is held liable when the wind carries the fire to his neighbor’s house, this is not always the case. One clear exception is that defendants are not generally liable for the intentional wrongdoing of others, even when such wrongdoing is a reasonably foreseeable consequence of the defendant’s action, the idea being that the subsequent wrongdoer is the responsible party.

This principle, incidentally, suffices to dispatch the Hiroshima and Nagasaki problem: President Truman’s dropping the bomb should be evaluated taking into account its natural and inevitable consequences—such as the death of thousands of innocents—but not taking into account other consequences that are properly chargeable to others, such as the deaths of even more thousands of innocents who would have been killed in an American invasion of the Japanese home islands. Those deaths, had they occurred, would have been the responsibility not of Truman but of the Japanese authorities, who wrongfully resisted American forces waging a just war. It is a mistake, therefore, to count them in considering whether Truman’s action advanced the final end.

As I said above, determining for which consequences of his actions an agent is responsible (and thus which consequences need be counted in determining whether the agent’s action advances the final end) is a vexed question about which it is extremely difficult to generalize. But merely pointing out the existence of this question suffices, in a general way, to solve the puzzle of how, in a eudaimonistic system, certain actions can be said to be always wrong. To wit, to show that an action is always wrong, we need not show that such actions never advance the final end, including in the most bizarre circumstances; we need show only that such actions do not advance that end in normal and usual circumstances—that is, in all cases except those in which the advancement of that end would be beyond the responsibility of the agent. Under that standard, it becomes fairly easy to justify the proposition that intentionally killing the innocent—that is to say, murder—is always wrong.

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

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In her new book, American Individualism: How a New Generation of Conservatives Can Save the Republican Party, Margaret Hoover renews this argument. (The book’s title and inspiration derive from a booklet of the same name by Hoover’s great-grandfather, Herbert Hoover.) Here she argues that the Republican brand is damaged because social conservatives appear to dominate the party, which “has caused millennials to tune us out.” Hence Hoover writes with two aims: to convince Republicans that millennials—roughly anyone born between 1980 and 1999—are not a “lost cause,” and to convince millennials that they should give Republicans another hearing. But to appeal to this audience’s alleged hostility to the third leg of the stool, Hoover feels compelled to pull out her pocketknife and sharpen it.

According to Hoover, the three-legged stool’s fusionism emerged as a response to a common enemy: Communism. In a post-Communist era, Hoover argues that a new fusionism must rally under the banner of fiscal discipline, which, when embedded in “rugged individualism”—a sort of individual freedom quickened with “community spirit”—can appeal to the millennial generation. Hoover applies this framework in a wide-ranging tour through contemporary American policy debates.

Millennials and conservatives alike will welcome Hoover’s powerful case against “generational theft.” Millennials are rather like latecomers to a posh dinner party thrown by their parents and grandparents. After a nibble of dessert and a sip of leftover Dom Perignon, they find the party deserted and are left stuck with the tab. The growing realization among millennials that they will be footing today’s welfare state bill for many years to come means they are ready to embrace a program of fiscal sanity. And given their widespread sense that almost anything can be customized to their individual needs, Hoover persuasively argues that their natural home is the party that has coupled spending, tax, and entitlement reform with an emphasis on individual choice and responsibility in health-care plans, retirement savings, and education. Moreover, Hoover reminds us that the events of 9/11 were formative for millennials and made them vividly aware that American values are in the crosshairs. Republicans are well-situated to remind millennials that, while we are emphatically not at war with Islam, we are at war with radical Islamist supremacists.

But what should we make of her call for Republicans to “emphasize economic values and deemphasize social issues”? Hoover contends that only this decision will help Republicans avoid being perceived as a “fire-and-brimstone party.” While Hoover’s tone might strike the reader as moderate, her message for social conservatives is loud and clear: stop talking about abortion and marriage, and get with the program.

Hoover labels abortion a “second-tier issue,” as if it didn’t concern the most fundamental questions of justice and the common good. Surely this is an odd assertion for someone claiming to champion the dignity of the individual person. Some scholars would trace Hoover’s libertarian-like “rugged individualism” (however tempered by a weak-sauce “community spirit”) back to the individualism of Hobbes and Locke, the “founders” of modern liberalism. Whatever the merits of that pedigree of liberalism, Hobbes and Locke agree with Aquinas on at least this point: a necessary feature of any just government will be the protection of all human beings within its jurisdiction from arbitrary acts of violence. So when Hoover parrots the platitude of being “personally prolife but politically pro-choice” as if it were the pragmatic, reasoned alternative to “absolutist” positions, one wonders whether she has really thought her position through. Either the genetically distinct, self-moving, self-integrating, individuated human being in the womb is a person and hence deserving of basic equal protection of the laws from arbitrary acts of violence—or he or she is not a person, in which case, on what grounds would one be “personally” prolife? To be “personally” prolife necessarily entails being “politically” prolife, or it is nonsense.

The relevant polling data suggests that millennials are more prolife than their parents. Fifty-eight percent of millennials believe abortion is “morally wrong” while 74 percent favor at least some legal restrictions on abortion. Notably, millennials are now the demographic most likely to believe abortion ought to be illegal in all circumstances. If anything, the character of the new generation suggests that the GOP shouldn’t mute its pro-life credentials if it wants to win.

Given Hoover’s emphasis on fiscal discipline, one might have expected for her to call for some kind of truce on marriage. Instead, Hoover dismisses arguments that favor protecting marriage in a few paragraphs and spends a chapter citing familiar “marriage equality” arguments. She concludes that the legal recognition of same-sex unions as marriages is entirely consistent with Republican principles of maximizing individual freedom and equal opportunity. Hoover thinks that millennials will find these arguments appealing because of their more libertarian leanings on economic and sexual issues. Let us abstract for the moment from the abundant social science evidence documenting the positive benefits for civil society of traditional marriage (and the likelihood that the exponential rise in federal spending to fight poverty since the 1960s has been ineffective because policymakers have failed to see that poverty is often a symptom of the breakdown of the traditional family). Still, why should it follow that Republicans have an imperative to recognize same-sex unions in the law as marriages?

Millennial libertarianism suggests that there is still wide agreement across the generations that the government has no business regulating most of our intimate friendships. (To see the point, we need only reflect for a moment on the absurdity of the government issuing chess-buddy licenses and specially protecting permanent and exclusive chess-buddy unions or analogous friendships.) But if true, the burden would be on the government to justify the importance of singling out a new form of friendship for special protection and benefits. A centuries-old tradition of law picked out opposite-sex unions for the good reason that such unions were the kind that produce children. What could be more to the common good than what John Rawls called the “orderly reproduction of society over time”? The burden rests on same-sex marriage proponents to justify the creation of a new entity in law as a requirement of the common good.

As far as I can make out, Hoover’s justification is that the current law denies equality. Yet Hoover makes no effort to explain what marriage is, and so we have no idea whether anyone’s equal rights have been violated when some unions are denied the status of marriage. Still, through the emotive morass of argumentation, one can discern that Hoover thinks marriage is or ought to be something like “any two consenting, committed persons who love each other.” Now who is denying equality? Why does justice only require the recognition of dyadic unions? This is not a slippery-slope question but a matter of principle, if we are talking about protecting the equal rights of all—including the equal rights of people in loving, committed polyamorous relationships.

At any rate, it is not clear that Hoover’s gaze into the crystal ball really reveals that millennials are the crest of the tide of history, inevitably hurtling us toward gay marriage. With millennials favoring the legalization of gay marriage by a 50 percent to 36 percent margin, with the remainder undecided (according to a Pew Research Center study), the future seems rather more ambiguous. The challenge for Republicans is not self-censorship, but to articulate and defend marriage as an essential aspect of the common good.

Hoover set out to hew off the Republican Party’s social conservative leg to gain a hearing with millennials, but instead of offering serious arguments that demonstrate precisely where prolife and traditional marriage arguments fail, she offers quick and easy slogans and emotional anecdotes. These offerings may reaffirm the prejudices of some readers, but it is doubtful that anyone who has reflected seriously on these matters will be persuaded.

Deirdre Cooper is a millennial and Public Policy Analyst for Texas Alliance for Life.

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But Father de Lubac knew that optimism and hope are very different creatures. In real life, bad things happen. Progress is not assured, and things that claim to be “progress” can sometimes be wicked and murderous instead. We can slip backward as a nation just as easily as we can advance. This is why optimism—and all the political slogans that go with it—are so often a cheat. Real hope and real joy are precious. They have a price. They emerge from the experience of suffering, which is made noble and given meaning by faith in a loving God.

A number of my friends have children with disabilities. Their problems range from cerebral palsy to Turner’s syndrome to Trisomy 18, which is extremely serious. But I want to focus on one fairly common genetic disability to make my point. I’m referring to Trisomy 21, or Down syndrome.

Down syndrome is not a disease. It’s a genetic disorder with a variety of symptoms. Therapy can ease the burden of those symptoms, but Down syndrome is permanent. There’s no cure. People with Down syndrome have mild to moderate developmental delays. They have low to middling cognitive function. They also tend to have a uniquely Down syndrome “look”—a flat facial profile, almond-shaped eyes, a small nose, short neck, thick stature, and a small mouth which often causes the tongue to protrude and interferes with clear speech. People with Down syndrome also tend to have low muscle tone. This can affect their posture, breathing, and speech.

Currently about 5,000 children with Down syndrome are born in the United States each year. They join a national Down syndrome population of about 400,000 persons. But that population may soon dwindle. And the reason why it may decline illustrates, in a vivid way, a struggle within the American soul. That struggle will shape the character of our society in the decades to come.

Prenatal testing can now detect up to 95 percent of pregnancies with a strong risk of Down syndrome. The tests aren’t conclusive. They can’t give a firm yes or no. But they’re pretty good. And the results of those tests are brutally practical. Studies show that more than 80 percent of unborn babies diagnosed with Down syndrome now get terminated in the womb. They’re killed because of a flaw in one of their chromosomes—a flaw that’s neither fatal nor contagious, but merely undesirable.

The older a woman gets, the higher her risk of bearing a child with Down syndrome. And so, in medical offices around the country, pregnant women now hear from doctors or genetic counselors that their baby has “an increased likelihood” of Down syndrome based on one or more prenatal tests. Some doctors deliver this information with sensitivity and great support for the woman. But, as my friends know from experience, too many others seem more concerned about avoiding lawsuits, or managing costs, or even, in a few ugly cases, cleaning up the gene pool.

In practice, medical professionals can now steer an expectant mother toward abortion simply by hinting at a list of the child’s possible defects. And the most debased thing about that kind of pressure is that doctors know better than anyone else how vulnerable a woman can be in hearing potentially tragic news about her unborn baby.

I’m not suggesting that doctors should hold back vital knowledge from parents. Nor should they paint an implausibly upbeat picture of life with a child who has a disability. Facts and resources are crucial in helping adult persons prepare themselves for difficult challenges. But doctors, genetic counselors, and medical school professors should have on staff—or at least on speed dial—experts of a different sort.

Parents of children with special needs, special education teachers and therapists, and pediatricians who have treated children with disabilities often have a hugely life-affirming perspective. Unlike prenatal caregivers, these professionals have direct knowledge of persons with special needs. They know their potential. They’ve seen their accomplishments. They can testify to the benefits—often miraculous—of parental love and faith. Expectant parents deserve to know that a child with Down syndrome can love, laugh, learn, work, feel hope and excitement, make friends, and create joy for others. These things are beautiful precisely because they transcend what we expect. They witness to the truth that every child with special needs has a value that matters eternally.

Raising a child with Down syndrome can be demanding. It always involves some degree of suffering. Parents grow up very fast. None of my friends who has a daughter or a son with a serious disability is melodramatic, or self-conscious, or even especially pious about it. They speak about their special child with an unsentimental realism. It’s a realism flowing out of love—real love, the kind that forces its way through fear and suffering to a decision, finally, to surround the child with their heart and trust in the goodness of God. And that decision to trust, of course, demands not just real love, but also real courage.

The real choice in accepting or rejecting a child with special needs is never between some imaginary perfection and imperfection. None of us is perfect. No child is perfect. The real choice in accepting or rejecting a child with special needs is between love and unlove; between courage and cowardice; between trust and fear. That’s the choice we face when it happens in our personal experience. And that’s the choice we face as a society in deciding which human lives we will treat as valuable, and which we will not.

Nearly 50 percent of babies with Down syndrome are born with some sort of heart defect. Most have a lifelong set of health challenges. Some of them are serious. Government help is a mixed bag. Public policy is uneven. Some cities and states provide generous aid to the disabled and their families. In many other jurisdictions, though, a bad economy has forced very damaging budget cuts. Services for the disabled—who often lack the resources, voting power, and lobbyists to defend their interests—have shrunk. In still other places, the law mandates good support and care, but lawmakers neglect their funding obligations, and no one holds them accountable. The vulgar economic fact about the disabled is that, in purely utilitarian terms, they rarely seem worth the investment.

That’s the bad news. But there’s also good news. Ironically, for those persons with Down syndrome who do make it out of the womb, life is better than at any time in our nation’s history. A baby with Down syndrome born in 1944, the year of my own birth, could expect to live about 25 years. Many spent their entire lives mothballed in public institutions. Today, people with Down syndrome routinely survive into their 50s and 60s. Most can enjoy happy, productive lives. Most live with their families or share group homes with modified supervision and some measure of personal autonomy. Many hold steady jobs in the workplace. Some marry. A few have even attended college. Federal law mandates a free and appropriate education for children with special needs through the age of 21. Social Security provides modest monthly support for persons with Down syndrome and other severe disabilities from age 18 throughout their lives. These are huge blessings.

And, just as some people resent the imperfection, the inconvenience, and the expense of persons with disabilities, others see in them an invitation to learn how to love deeply and without counting the cost.

Hundreds of families in this country—like my young friends in Denver, Kate and JD Flynn—are now seeking to adopt children with Down syndrome. Many of these families already have, or know, a child with special needs. They believe in the spirit of these beautiful children, because they’ve seen it firsthand. A Maryland-based organization, Reece’s Rainbow, helps arrange international adoptions of children with Down syndrome. The late Eunice Shriver spent much of her life working to advance the dignity of children with Down syndrome and other disabilities. The Anna and John J. Sie Foundation committed $34 million to the University of Colorado to focus on improving the medical conditions faced by those with Down syndrome. And many businesses, all over the country, now welcome workers with Down syndrome. Parents of these special employees say that having a job, however tedious, and earning a paycheck, however small, gives their children pride and purpose. These things are more precious than gold.

The Nobel Peace Prize winner Albert Schweitzer once wrote that, “A man is truly ethical only when he obeys the compulsion to help all life which he is able to assist, and shrinks from injuring anything that lives.” Every child with Down syndrome, every adult with special needs; in fact, every unwanted unborn child, every person who is poor, weak, abandoned, or homeless—each one of these persons is an icon of God’s face and a vessel of His love. How we treat these persons—whether we revere them and welcome them, or throw them away in distaste—shows what we really believe about human dignity, both as individuals and as a nation.

The American Jesuit scholar Father John Courtney Murray once said that “Anyone who really believes in God must set God, and the truth of God, above all other considerations.”

Here’s what that means. Catholic public officials who take God seriously cannot support laws that attack human dignity without lying to themselves, misleading others, and abusing the faith of their fellow Catholics. God will demand an accounting. Catholic doctors who take God seriously cannot do procedures, prescribe drugs, or support health policies that attack the sanctity of unborn children or the elderly, or that undermine the dignity of human sexuality and the family. God will demand an accounting. And Catholic citizens who take God seriously cannot claim to love their Church, and then ignore her counsel on vital public issues that shape our nation’s life. God will demand an accounting. As individuals, we can claim to believe whatever we want. We can posture, and rationalize our choices, and make alibis with each other all day long—but no excuse for our lack of honesty and zeal will work with the God who made us. God knows our hearts better than we do. If we don’t conform our hearts and actions to the faith we claim to believe, we’re only fooling ourselves.

We live in a culture where our marketers and entertainment media compulsively mislead us about the sustainability of youth, the indignity of old age, the avoidance of suffering, the denial of death, the nature of real beauty, the impermanence of every human love, the oppressiveness of children and family, the silliness of virtue, and the cynicism of religious faith. It’s a culture of fantasy, selfishness, sexual confusion, and illness that we’ve brought upon ourselves. And we’ve done it by misusing the freedom that other—and greater—generations than our own worked for, bled for, and bequeathed to our safekeeping.

What have we done with that freedom? In whose service do we use it now?

John Courtney Murray is most often remembered for his work at Vatican II on the issue of religious liberty, and for his great defense of American democracy in his book, We Hold These Truths. Murray believed deeply in the ideas and moral principles of the American experiment. He saw in the roots of the American Revolution the unique conditions for a mature people to exercise their freedom through intelligent public discourse, mutual cooperation, and laws inspired by right moral character. He argued that—at its best—American democracy is not only compatible with the Catholic faith, but congenial to it.

But he had a caveat. It’s the caveat that George Washington implied in his Farewell Address, and that Charles Carroll—the only Catholic signer of the Declaration of Independence—mentions in his own writings. In order to work, America depends as a nation on a moral people shaped by their religious faith, and in a particular way, by the Christian faith. Without that living faith, animating its people and informing its public life, America becomes something alien and hostile to the very ideals it was founded on.

This is why the same Father Murray who revered the best ideals of the American experiment could also write that “Our American culture, as it exists, is actually the quintessence of all that is decadent in the culture of the Western Christian world. It would seem to be erected on the triple denial that has corrupted Western culture at its roots: the denial of metaphysical reality, of the primacy of the spiritual over the material, [and] of the social over the individual . . . Its most striking characteristic is its profound materialism . . . It has given citizens everything to live for and nothing to die for. And its achievement may be summed up thus: It has gained a continent and lost its own soul.”

Catholics need to wake up from the illusion that the America we now live in—not the America of our nostalgia or imagination or best ideals, but the real America we live in here and now—is somehow friendly to our faith. What we’re watching emerge in this country is a new kind of paganism, an atheism with air-conditioning and digital TV. And it is neither tolerant nor morally neutral.

As the historian Gertrude Himmelfarb observed more than a decade ago, “What was once stigmatized as deviant behavior is now tolerated and even sanctioned; what was once regarded as abnormal has been normalized.” But even more importantly, she added, “As deviancy is normalized, so what was once normal becomes deviant. The kind of family that has been regarded for centuries as natural and moral—the ‘bourgeois’ family as it is invidiously called—is now seen as pathological” and exclusionary, concealing the worst forms of psychic and physical oppression.

My point is this: Evil talks about tolerance only when it’s weak. When it gains the upper hand, its vanity always requires the destruction of the good and the innocent, because the example of good and innocent lives is an ongoing witness against it. So it always has been. So it always will be. And America has no special immunity to becoming an enemy of its own founding beliefs about human freedom, human dignity, the limited power of the state, and the sovereignty of God.

A friend of mine has a son with Down syndrome, and she calls him a “sniffer of souls.” I know him, and it’s true. He is. He may have an IQ of 47, and he’ll never read The Brothers Karamazov, but he has a piercingly quick sense of the people he meets. He knows when he’s loved—and he knows when he’s not. Ultimately, I think we’re all like her son. We hunger for people to confirm that we have meaning by showing us love. We need that love. And we suffer when that love is withheld.

These children with disabilities are not a burden; they’re a priceless gift to all of us. They’re a doorway to the real meaning of our humanity. Whatever suffering we endure to welcome, protect, and ennoble these special children is worth it because they’re a pathway to real hope and real joy. Abortion kills a child; it wounds a precious part of a woman’s own dignity and identity; and it steals hope. That’s why it’s wrong. That’s why it needs to end. That’s why we march.

Never give up the struggle that the March for Life embodies. No matter how long it takes, no matter how many times you march—it matters, eternally. Because of you, some young woman will choose life, and that new life will have the love of God forever.

The great Green Bay Packer theologian, Vince Lombardi, liked to say that real glory consists in getting knocked flat on the ground, again and again and again, and getting back up—just one more time than the other guy. That’s real glory. And there’s no better metaphor for the Christian life. Don’t give up. Your prolife witness gives glory to God. Be the best Catholics you can be. Pour your love for Jesus Christ into building and struggling for a culture of life. By your words and by your actions, be an apostle to your friends and colleagues. Speak up for what you believe. Love the Church. Defend her teaching. Trust in God. Believe in the Gospel. And don’t be afraid. Fear is beneath your dignity as sons and daughters of the God of life.

Changing the course of American culture seems like such a huge task; so far beyond the reach of this gathering today. But St. Paul felt exactly the same way. Redeeming and converting a civilization has already been done once. It can be done again. But we need to understand that God is calling you and me to do it. He chose us. He calls us. He’s waiting, and now we need to answer him.

Charles J. Chaput, O.F.M. Cap., Roman Catholic Archbishop of Philadelphia, is the author of Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life. This essay is adapted from a lecture Archbishop Chaput delivered this past weekend at the Cardinal O’Connor Conference on Life.

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It is almost too much to contemplate: the prospect that we are living in the midst of, and accepting (to various degrees) one of the greatest human holocausts in history. And so we don’t contemplate it. Instead, we look for ways to deny this grim reality, minimize it, or explain away our complacency—or complicity.

It is important, however, to view reality with eyes wide open, focus clear, and gaze not averted. On this thirty-ninth anniversary of Roe and Doe, I would like simply to set forth what Roe and Doe held, in as clear-headed and straightforwardly descriptive legal terms as possible, and to lay out its human and moral consequences. My brief tour of Roe’s unbearable wrongness begins with Roe’s radicalism—its extreme holding creating a plenary right to obtain or commit abortion—proceeds with Roe’s legal untenability, and concludes with Roe’s immorality and the moral problem of our seeming passivity and quiescence in response to the greatest legal and moral wrongs of our age.

Roe’s Radicalism

Start with Roe’s radicalism, a radicalism that we may no longer grasp because it has become so familiar. Roe created a constitutional right to obtain or commit an abortion of a human life—that is, to terminate the life of a human embryo or fetus. It is important to be clear-sighted about this: abortion kills a living human embryo or fetus. What distinguishes “abortion” from (say) miscarriage is the specific intention to kill a living fetus. What was alive before has been deliberately killed. Abortion takes a life. Further, the life taken is human life. There is really no doubt about that as a matter of biology. The embryo or fetus belongs to the species homo sapiens. It is a separate, living human being that is killed by abortion.

To be sure, that human being is killed at an early stage in its life cycle, and for a substantial part of that time could not live without direct biological connection to his or her mother (the person in whom Roe vests the right to terminate that human life). But that does not make the human embryo any less alive, any less human, or any less a separate life from the mother. It just makes the unborn baby more vulnerable and dependent.

The right created by the Supreme Court in Roe is a constitutional right of some human beings to kill other human beings. I do not mean for my description to be provocative, but simply direct—blunt about facts. One need not presume that the human fetus has a right not to be killed in order to recognize that, as a descriptive matter, Roe creates a right for one class of human beings to kill other human beings.

Roe, coupled with Doe, creates a plenary right to kill the embryo or fetus for essentially any reason, at any time throughout all nine months of pregnancy. Distilled to its essence, Roe created a “trimester” framework for abortion. In roughly the first three months of pregnancy, the right of abortion is avowedly plenary: abortion may be had for any reason. In the second three months, government may regulate abortion to protect the life or health of the mother, but again the right to have an abortion remains plenary. In the final three months—after the point of “viability,” when the human fetus could live on his or her own outside the mother’s womb—Roe says that abortion can be restricted or prohibited . . . except where abortion is necessary to protect the “life or health” of the pregnant woman.

This is a big exception. And here is where Doe steps in. On its face, Roe might appear, to the unwary or uninitiated, “moderate”—its trimester-balancing framework a measured, reasonable-sounding, proportionate act of judicial legislation concerning abortion. It is Doe that does a lot of the work, through an indirect and ultimately disingenuous definition of the “health” reasons that always may justify a woman’s decision to have an abortion and trump any interest of society in protecting fetal human life, even when the child could survive outside the mother’s womb. Doe holds that relevant “health” considerations justifying late-term abortions include “all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health.” (Doe’s understanding of “the patient” did not include the fetus; Roe held elsewhere that the human fetus has no legal rights that any person is bound to respect.)

Roe then cross-referenced Doe’s stylized definition of health and incorporated it into the main holding. The result is that an abortion may be had, under Roe and Doe, for essentially any reason, throughout all nine months of pregnancy, up to the point of birth.

Nothing in any of the Court’s later abortion cases alters this definition of “health” or the right to abortion throughout pregnancy. Planned Parenthood v. Casey, the 1992 case reaffirming Roe, tinkered slightly with the trimester framework and the point at which “viability” occurs but did not change Roe’s (and Doe’s) holding that abortion may be had for any reason, before viability, and for any “health” reason throughout pregnancy. The partial-birth abortion cases carried this understanding forward, holding that the state may not prohibit the abortion method of inducing birth and killing the fetus on the way out of the birth canal (Carhart I [2000]), unless an equally effective, equally “healthy” method of killing the fetus is available (Carhart II [2007]).

I suspect that if more people understood Roe’s and Doe’s actual holding fewer would support that constitutional regime. Roe was a truly extreme decision, creating an effectively unrestricted constitutional right to abort a living human being for any reason the mother might have, throughout pregnancy right up to the point of birth.

Roe’s Legal Untenability

This brings us to Roe’s utter indefensibility as a matter of constitutional law. If the U.S. Constitution actually protected such an extreme personal legal right to kill the human fetus, that would be troubling enough, but the trouble would be with the content of the Constitution. The further problem with Roe is that it has absolutely no basis in the text, structure, or history of the Constitution. No rule or principle of law fairly traceable to the text, discernible from its structure, or fairly derived from evidence of intention or historical understanding of an authoritative decision of the people, remotely supports the result reached in Roe. In terms of fair principles of constitutional interpretation, Roe is perhaps the least defensible major constitutional decision in the Supreme Court’s history.

Roe’s reasoning, distilled to its essentials, is that the Constitution creates a “privacy” right to abortion, on the premise that the right not “to bear” a child is protected by the Fourteenth Amendment’s Due Process Clause. No serious constitutional law scholar thinks this is a plausible reading of the Due Process Clause. That clause forbids government to “deprive any person of life, liberty or property, without due process of law.” Without due process of law are crucial words. The Due Process Clause does not say that government never may deprive a person of life, liberty or property. It only says that government may not do so “without due process of law”—that is, arbitrarily, lawlessly, not in conformity with duly enacted laws and accepted procedures for their application.

Many nonetheless support Roe’s holding as a policy matter and therefore seek to rationalize the holding some other way. Perhaps the goofiest is the suggestion advanced by a few law professors, in apparent seriousness, that abortion restrictions violate the Thirteenth Amendment’s ban on slavery. Saner, but in the end still unsound as a legal matter, is the notion that abortion laws discriminate on the basis of sex and thus deny “equal protection of the laws.” The defect in this argument is that abortion laws do not classify on the basis of sex or gender and are not disguised attempts to do so. Rather, they aim at conduct—obtaining or committing an abortion—when engaged in by persons of either sex. Abortion restrictions do not restrict acts of women because they are women; they restrict acts committed by men or women because they kill human fetuses. Further, ask a “pro-choice” “feminist” whether abortion should be permitted for reasons of sex-selection—that is, because the unborn child is a girl—and the sex discrimination argument begins to turn back on itself. All but the most blindly pro-abortion ideologues abandon the argument that abortion rights are required for gender equality, if that means abortion can be chosen for gender-selection of boys over girls.

In Planned Parenthood v. Casey, the Supreme Court rested the right to abortion back where Roe purported to find it, in the Due Process Clause. Recognizing the embarrassments created by this view, Casey added another prop: the doctrine of precedent or “stare decisis,” which is essentially all that is left to support Roe. But Casey’s invocation of the doctrine was transparently disingenuous: Because the public expects the Court to adhere (usually) to its past decisions, because the Court had staked its authority on Roe, and because the Court might be viewed unfavorably by some of the public if it reversed itself in such a case, the Court said that it had decided to adhere to Roe “whether or not mistaken.” Thus, what Roe held to be required by substantive due process Casey held to be required by stare decisis, even assuming Roe to be wrong.

If Roe was radical, Casey was craven. A majority of the Supreme Court apparently believed that Roe was wrongly decided, fully understood the moral and human consequences of the decision, and deliberately adhered to it anyway. Stare decisis has never been thought required by the Constitution, before or since. Brown v. Board of Education (1954) famously repudiated Plessy v. Ferguson (1896) on the question of whether racial segregation was consistent with “equal protection of the laws.” The Court has overruled scores of its own precedents. Indeed, it overruled two cases in Casey. Casey’s reaffirmation of Roe, in the name of stare decisis, was a sham—perhaps the most transparently dishonest major judicial decision since Dred Scott.

Roe’s Immorality

Finally, there is Roe’s immorality—the abortion holocaust it unleashed—and the problem of our response to it. Roe is a radical decision and a legally indefensible one. But what really makes Roe unbearably wrong is its consequences. The result of Roe and Doe has been the legally authorized killing of nearly sixty million Americans since 1973. Roe v. Wade authorized unrestricted private violence against human life on an almost unimaginable scale, and did so, falsely, in the name of the Constitution.

It is hard to escape this conclusion, but not impossible—and many certainly try. I will not here belabor the question of whether the intentional killing of innocent, dependent, vulnerable human children is a grave moral wrong. My concluding point concerns the lengths to which we will go to deny the reality of this holocaust, because it is almost unbearable to contemplate and still go on living life as if nothing is terribly wrong. The cognitive dissonance is simply too great. And so we have become, in effect, a nation of holocaust deniers.

Here is the problem, undressed: If human embryonic life is morally worthy of protection, we have permitted sixty million murders under our watch. Faced with this prospect, many of us—maybe even most—flee from the facts. We deny that the living human embryo is “truly” or “fully” human life, adopt a view that whether the embryo or fetus is human “depends,” or can be judged in degrees, on a sliding scale over the course of pregnancy; or we proclaim uncertainty about the facts of human biology; or we proclaim moral agnosticism about the propriety of “imposing our views on others”; or we throw up our hands and give up because moral opposition to an entrenched, pervasive social practice is not worth the effort, discomfort, and social costs. The one position not on the table—the one possibility too hard to look at—is that abortion is a grave moral wrong on a par with the greatest human moral atrocities of all time and that we passively, almost willingly, accept it as such.

All of this should tell us a few more sobering things. It should tell us that, much as we would like to believe that human beings have become more morally conscious, more sensitive to injustice and intolerant of clear evil, it remains the case that we often either fail to recognize it in our midst, or refuse to respond to it decisively, out of self-interest or cowardice. It should tell us that, much as we would like to think that we surely would have stood bravely against slavery, even if embedded in a nineteenth-century society that tolerated and accepted it as a legal right, we might have acquiesced or been tepid in our condemnation. It should tell us that, much as we would like to think we would never have put up with what transpired in Nazi Germany in the 1930s and the 1940s, the evidence of our lives in twenty-first century America is that we might have put up with quite a lot.

And it should tell us finally, that, as much as we may claim to admire our governmental and constitutional system, the decisions of the Supreme Court in the abortion cases expose the Court—at least on this matter of life, death, and law—as a lawless, rogue institution capable of the most monstrous of injustices in the name of law. The Court has, with its abortion decisions, surely forfeited its legal and moral legitimacy as an institution. It has forfeited its claimed authority to speak for the Constitution. It has forfeited its entitlement to have its decisions respected, and followed, by the other branches of government, by the states, and by the people. Yet the docility of the American people with respect to Roe and abortion rivals the pliancy of the most cowardly, servile peoples toward ruinous, brutal, anti-democratic regimes throughout world history.

The Supreme Court is empowered by the Constitution to faithfully interpret the Constitution. But it is not alone in that power, and when it exceeds it and violates it, it is the responsibility of other actors in our system to check the abuse. As James Madison wrote in The Federalist No. 49, “the several departments being perfectly co-ordinate by the terms of their common commission, neither of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers.” Moreover, it is “the people themselves” who are “the grantors of the commission” and who “can alone declare its true meaning and enforce its observance.”

The Court’s decision in Roe v. Wade should not be accepted as law, in any sense. It should be resisted by legislatures and it should be refused enforcement by executive officials because it is not the law. It should be resisted by all citizens, with all the resources at their disposal, and perhaps even with resources not (yet) at their disposal. Anything less is holocaust denial.

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

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DoJ’s position is reminiscent of a prior era of antitrust regulation, in which preventing market concentration was prized over economic efficiency and clear consumer interests (e.g., lower prices and higher quality). That trust-busting ethos no longer holds much currency at the Supreme Court, but it is alive and well in the Obama administration, thus demonstrating that the pursuit of a policy agenda—be it a throwback to an age of liberal monopoly regulation or an advancement of the common good through a pro-life agenda—relies not only on the courts, but also on the properly oriented engagement of the administrative state.

AT&T–T-Mobile Merger

The $39 billion deal would have given AT&T access to more wireless spectrum in order to enhance its network with T-Mobile’s assets, and it would have taken the American company off Deutsche Telekom’s hands. Instead, as per the merger agreement, AT&T owes Deutsche Telekom $3 billion in penalties, and Deutsche Telekom is still looking for a way to unload T-Mobile. AT&T also had to relinquish spectrum to T-Mobile, thus presumably affecting adversely the needs of its existing customers. This result came about because, “in the end, [AT&T] decided it couldn’t come up with a package of divestitures or other changes to the deal to appease U.S. officials that had deemed it anticompetitive.” Indeed, “people familiar with the matter” told the Wall Street Journal that “no amount of divestitures would appease government lawyers.”

The result of the merger would have been to unite the number two and number four cellular providers, essentially creating a three-firm market with AT&T, Verizon, and Sprint. Verizon favored the merger, but Sprint did not, as it would have been the distant, third-ranked player in the market. Another loser in the deal was the broader mergers and acquisitions market, which, adding this failed merger to a string of other soured deals, finds that “the value of corporate deals struck in 2011 may be lower than the year before. The last time that happened was 2009, in the teeth of the financial crisis.”

DoJ’s interest in the merger made sense given the market context. Increased market concentration is a concern of the Obama Justice Department, as laid out in its merger guidelines. Here, the threshold application of the Herfindahl-Hirschman Index (HHI, the prescribed test for analyzing relative market concentration under the guidelines) shows a move from a moderately concentrated market to a highly concentrated one. The guidelines warn that such a situation might “raise significant competitive concerns and often warrant scrutiny.”

The Return of Liberal Antitrust

The appropriateness of this scrutiny is debatable. As one commentator noted about a leaked FCC report on the merger (and AT&T’s response),

Not only is there no actual evidence of consumer harm resulting from the sort of increases in concentration that might result from the merger, but the [FCC] staff seems to derive its negative conclusions despite the damning fact that the data shows that wireless markets have seen considerable increases in concentration along with considerable decreases in prices, rather than harm to competition, over the last decade. While high and increasing HHIs might indicate a need for further investigation, when actual evidence refutes the connection between concentration and price, they simply lose their relevance.

Others took away from the whole ordeal a simple lesson: “Don’t underestimate the Justice Department’s newfound toughness in policing mergers between rivals.” Those authors point out, “The tougher stance shouldn’t come as a surprise. President Barack Obama campaigned on reinvigorating antitrust enforcement, reversing the previous administration’s more hands-off approach to mergers between rivals.”

Such a result follows from the position established at the outset of the Obama administration by its first Assistant Attorney General for Antitrust, Christine Varner. As the New York Times reported on a speech she gave before the liberal Center for American Progress, she announced “that the administration would restore an aggressive enforcement policy against corporations that use their market dominance to elbow out competitors or to keep them from gaining market share.” While she placed this commitment to preventing “market dominance” in the context of “consumer welfare,” at a more fundamental level, it harkens back to an earlier age of antitrust enforcement in which an ideological aversion to market concentration qua market concentration (or, arguably, to market concentration as a threat to competitors not competition) was read by the courts into the antitrust statutes, in particular the Sherman Act.

It is a view succinctly described by Judge Learned Hand in United States v. Aluminum Co. of America (1945): “We have been speaking only of the economic reasons which forbid monopoly; but, as we have already implied, there are others, based upon the belief that great industrial consolidations are inherently undesirable, regardless of their economic results.” Judge Hand cited as support the Supreme Court’s first decision on the merits of the Sherman Antitrust Act, United States v. Trans-Missouri Freight Association (1897), in which Justice Peckham denounced even those monopolies that drove down prices (that is, enhanced consumer welfare by one very important quantitative measure), saying,

In business or trading combinations they may even temporarily, or perhaps permanently, reduce the price of the article traded in or manufactured, by reducing the expense inseparable from the running of many different companies for the same purpose. Trade or commerce under those circumstances may nevertheless be badly and unfortunately restrained by driving out of business the small dealers and worthy men whose lives have been spent therein, and who might be unable to readjust themselves to their altered surroundings.

Like Justice Peckham, the Obama administration seems willing to dismiss concrete consumer benefits (like lower cost or enhanced service with a more reliable wireless network) as ancillary to perceived non-economic negative effects (like hurting “worthy men” in competition or “keep[ing]” competitors “from gaining market share”).

The Supreme Court and the “New Learning” in Antitrust

While DoJ seems to be applying century-old ideological concerns about the inherent threats posed by market concentration to competition, the Supreme Court, over the past forty years, has moved away from non-economic consideration like harm to competitors, focusing instead on concrete harm to consumer welfare and economic efficiency. As Judge Douglas Ginsburg recently wrote, “Starting in the 1970s, the Supreme Court began systematically reworking antitrust doctrine in order to bring it into alignment with the modern economic understanding of competition.”

Describing this reworked doctrine as the “new learning” in antitrust, Judge Ginsburg lays out various antitrust trends at the Supreme Court. He notes that as a result of this new learning, “During the most recent decade, defendants won all thirteen, that is, one hundred percent of the Court’s antitrust cases. These figures reflect the Justices’ increasing embrace of the economic approach to antitrust law, which—relative to approaches based upon amorphous sociopolitical goals—limits liability to those relatively few business practices truly inimical to consumers.” Or, paraphrasing Judge Robert Bork, the current consensus is that our antitrust laws “would promote consumer welfare, not the various sociopolitical aims that judges had read into [them].”

Perhaps even more surprising to the outside observer, Judge Ginsburg shows that the Supreme Court not only employs the “economic approach” to antitrust in favor of defendants with regularity, but also does so with increasing agreement among the Justices. As he explains,

[Between 1997 and 2007], when the Court decided all thirteen cases for the defendants, a supermajority obtained in eighty-five percent (eleven of thirteen) of the cases. Over [the past] four decades, the percentage of all antitrust cases that the Court decided by a supermajority in favor of the plaintiff fell from fifty-five percent to zero. As these figures suggest, the economic approach to antitrust has conduced to clear and largely predictable outcomes in favor of defendants.

While this situation is not always reflected in all federal jurisdictions, the sharp change in antitrust posture at the Court today as compared to fifty years ago has altered the legal landscape. As Judge Ginsburg concludes, the triumph of economic efficiency “does significantly constrain the decision making of the Court and thereby narrow the range of plausible outcomes.”

The Importance of Agencies

Against this backdrop, the AT&T merger shows that the administrative state matters. While not making any definitive judgments on the specific antitrust implications of this merger, it remains the case that AT&T would at least have faced a favorable environment if it fought DoJ in court, given the Supreme Court’s defendant-preference in accordance with the modern economic understanding of antitrust. Indeed, given that AT&T, in response to the FCC, made, at minimum, colorable claims that the merger would benefit consumer welfare in a number of ways, surely AT&T and T-Mobile were not despairing of their chances in court.

Yet, as is said sometimes of criminal law, the prosecution can be the punishment. Here, civilly, it was the litigation brought by DoJ, as AT&T and Deutsche Telekom’s stockholders can surely attest. (Shares of AT&T saw a series of drops in August, coincidentally the month when DoJ announced its antitrust suit.) This phenomenon is especially acute for ex ante merger regulation, in that, while AT&T may have prevailed in court, antitrust litigation is a long and costly process. As mergers are typically stayed while proceedings continue, the market conditions might no longer be ripe for the acquisition by the time the case is resolved and the merger can proceed. So, as was the case with AT&T, the parties will contort themselves into pretzels to appease the regulators and avoid the litigation, and when they can’t, the merger fails. Even the Supreme Court might have held AT&T to be in the right, but, in the end, it was the bureaucracy that scuttled the $39 billion deal. In an election year, there are lessons to be learned from this, which extend far beyond the realm of mergers and acquisitions.

If a president wishes to effectuate policies that advance the common good (as he ought to), he needs to do so on multiple fronts. Given President Obama’s policy interest in reviving a more activist conception of monopoly regulation, he not only placed traditional liberals on the courts, but also arranged the bureaucracy so that it would take a harder look at monopolies and—as with AT&T—provide an administrative backstop in case an antitrust defendant-preference persisted in the courts.

In many ways, this is the mirror image of what happened in the 1980s, when President Reagan appointed not only new-learning judges like Robert Bork and Richard Posner to important federal courts, but also economist James Miller to run the Federal Trade Commission. The synergy of the related actions in distinct branches—according to James Q. Wilson’s Bureaucracy—allowed “economists [to] increase their strength at the Federal Trade Commission,” with the result that “as the courts became skeptical of the argument that big corporations were inherently less desirable than small ones, the FTC became less likely to bring cases that asserted the proposition that big was bad.”

Candidates for the Republican presidential nomination should pay heed to Reagan and Obama’s multi-branch approach to achieving desired antitrust policies, which can inform how administrations can best achieve policy goals, not only in market regulation but also in areas such as the regulation of abortion and its related policy issues. There is a temptation for Republican candidates to respond to the judiciary’s arrogation of the abortion issue in Roe v. Wade by simply promising to appoint “originalist” Justices to the Supreme Court, whose “faithful application” of the Constitution will overturn federal judicial abortion protections.

While judicial appointments are surely an essential element of any coherent policy to extend greater legal protection to the unborn, the AT&T lesson demonstrates that it is not sufficient. It was not the confirmation of Sonia Sotomayor to the Supreme Court or David Hamilton to the Seventh Circuit that killed the AT&T merger and thus preserved “competition” and forestalled “excessive” concentration in the cellular-provider market; on the contrary, ex post antitrust enforcement in the courts would likely have faced bleak prospects even with Obama’s appointments. Obama’s antitrust policies were adopted by DoJ, and that is where they were effectively applied, even in the face of likely unsympathetic courts.

In addition to appointing originalist judges, a Republican administration will have numerous opportunities to advance pro-life policies at the administrative level. It can reinstate robust medical conscience regulations; it can rescind the broad new abortifacient insurance-coverage mandates; it can retrench the marketing of abortifacient drugs like ulipristal; it can pursue more active enforcement of federal laws like the Partial-Birth Abortion Ban Act and the Born-Alive Infant Protection Act. These policy goals can be sought either in conjunction with an increasingly sympathetic judiciary (as with Reagan’s FTC) or as an alternative avenue of effecting policy in the face of a hostile judiciary (as with Obama and the AT&T merger).

A sincere pro-life candidate needs to recognize that the same channels of power that the current administration uses to protect competitors can and should be used to protect the unborn.

Michael A. Fragoso is a student at Notre Dame Law School.

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On the face of it, this would appear like an unpromising thesis, considering the momentous transformations in belief and culture that have occurred over a period of nearly three millennia. But the radical nature of modernity’s challenge to customary conceptions of the human has thrown into relief a number of extremely basic premises that had been taken for granted by almost every generation of Western man prior to the twentieth century: that humans are creatures endowed with consciousness, or mind; that language conveys meaning; that human actions are the proper subject of moral evaluation.

Likewise, the radical stylistic departures of modernist poets compel us to recognize a very basic stylistic consistency that obtains in the work of the early Greeks all the way through the late Victorians, and this stylistic consistency, so I will try to argue, embodies that basic level of philosophical agreement in pre-modern thought. To put the point another way: there are certain truths about man and the world that one must assume in order to write formally structured, consecutively ordered verse, and conversely, the writing of formally structured, consecutively ordered verse attests to the presence in the mind of the author of certain truths about man and the world, and disseminates them among his audience. What, then, are those truths?

Let me begin addressing this question in somewhat oblique fashion, by calling the reader’s attention to a particularly remarkable passage in Shakespeare. I have in mind that scene in Act Four of King Lear when the convalescent king, just awakening out of his fit, finds Cordelia standing by him and tending to his infirmity. Faintly recalling the great wrong he committed against her in the play’s opening scene, he acknowledges his guilt, and Cordelia responds with what I find to be the most poignant four syllables in English poetry:

Lear: If you have poison for me, I will drink it.
I know you do not love me, for your sisters
Have, as I do remember, done me wrong.
You have some cause, they have not.

Cordelia: No cause, no cause.

Here, in one brief utterance, Shakespeare reveals to us the deep beauty of genuine love, the love that is resilient in the face of all of life’s vicissitudes, the love that “forgives wrongs blacker than death or night.” One would have to be uniquely cloddish to read this passage, or watch it performed on stage, and not be moved at such beauty, and it is in being thus moved that we understand the passage. For whatever else the play ultimately means, it means that love is a precious, fugitive thing; it does not change the trajectory of fortune, it does not preserve the purest of souls from the most reprehensible of deaths, but it is our consolation in the midst of suffering, and not one to be disdained—the something that comes from the bleak nothingness of human misery. We cannot know love in the play by its effects, for it is perfectly ineffectual. One must simply recognize, in Shakespeare’s depiction, the intrinsic loveliness of the thing, and this recognition must be felt. To be cold to this scene, to lack any apprehension of its beauty, is to be in danger of misreading the play severely. (See, for instance, Harold Bloom’s essay on King Lear in his Shakespeare: The Invention of the Human, where he refers to the play as “nihilistic.”) A defect of feeling is here a defect of understanding.

All truly excellent poetry works like this. All great poetry moves; this was, for Sir Philip Sidney, the distinctive potency of poetic discourse. But in moving us, it discloses to us something essential about our natures. We are stunned by the beauty of Cordelia’s affectionate clemency toward her father, and are thereby jolted into an awareness of the springs of such virtue in our own souls. We sympathize with depicted goodness because, as rational creatures, we prefer goodness; as that sympathy is elicited, that preference is raised to consciousness (and conversely, our revulsion at depicted wickedness signals to us our disgust for that). It is not too much to say that great poetry reveals us to ourselves, and what it reveals is a creature fit for moral predicates.

The first question of all sound poetic interpretation ought to be, “why was I moved?” and the answer to that question will generally bear some reference to our ethical nature. Horace famously declared that the ends of the poetic art are to “teach and delight” (aut delectare aut prodesse est); I would modify his dictum slightly, exchanging the coordinating for a subordinate conjunction. Poetry teaches because it delights; it conjures in our minds an emotional pleasure through its representations, and thereby teaches us the disposition of our native sympathies—how far they are already oriented toward our rational perfection, and how far not.

Something is obviously being assumed about human nature here, something fundamental: that there is in all of us something excellent, something worthy to be nurtured, however much overlaid with the other crudity of our natures. In some very elemental way, poetry seeks to gratify our desires—not all of them, of course, but those that tend toward the great transcendentals of beauty, goodness, and truth. Poetry, therefore, rests on the assumption that at least some portion of our desires does tend toward these things, and is therefore answerable to reason. It is an art that demands, for its proper practice, a minimal degree of admiration for the human creature, and a minimal confidence in that creature’s capacity for rational improvement. There can be no stronger contrast with the customary attitude of modernist poetry, which from the beginning was at war with human nature. “It is not an exaggeration to assert that modern paintings and sculptures betray a real loathing of living forms or forms of living beings,” wrote Jose Ortega y Gasset in his essay The De-humanization of Art, and a similar “loathing” of the human permeates modern poetry as well. A mind that loathes human nature will never attempt to delight it. Rather, as Jacques Barzun noted in The Use and Abuse of Art, the goal of the modern author is to “brutalize” his reader; modern literature “is meant to nauseate us and it succeeds.”

If my argument is accepted thus far, the significance of form in classical poetry should be evident: it is there to gratify, and thereby cultivate, the better portion of our nature. Clarity of meaning, regularity of syntax, consecutiveness of thought each become regulative principles of the art for the very simple reason that they are what our rational natures hunger after, and such a desire ought to be satisfied. Obscurity in all of its varieties—dislocation of syntax, arbitrariness in image or idea—is to be eschewed for the very simple reason that it frustrates the expectations of our rational natures. Formal, structured poetry satisfies our desire for the true and the beautiful, and, in doing so, reveals that we are truth-craving, beauty-craving creatures. I am, of course, supposing a basic philosophical realism, and I think that poetry, as an art, supposes such realism too. Poetry supposes that human experience, and concepts such as truth and beauty that are necessary for the direct interpretation of human experience, are more real than any system of concepts that has been abstracted too far from such experience, a point magnificently expressed by Chesterton in his brief book on Robert Browning:

Poetry deals entirely with those great eternal and mainly forgotten wishes which are the ultimate despots of existence. Poetry presents things as they are to our emotions, not as they are to any theory, however plausible, or any argument, however conclusive . . . If bereavement is a bitter and continually aching thing, poetry will say that it is so, and no philosophers will persuade poetry to say that it is an evolutionary stage of great biological value. And here comes in the whole value and object of poetry, that it is perpetually challenging all systems with the test of a terrible sincerity. The practical value of poetry is that it is realistic upon a point upon which nothing else can be realistic, the point of the actual desires of man.

All classical poets are moral and metaphysical realists in just this way, in the belief that among the elemental desires of a human being are the desires for truth and beauty, and that these are desires for real things. And this is why, at a certain point, radical skepticism simply precludes the possibility of writing and enjoying poetry.

This endeavor to gratify our better natures is reflected even in the sensual presentation of language in classical poetry. Meter, rhyme, and stanzaic structure please through their creation of patterned sound. Such pleasure is not merely bio-mechanical, however, for the mind hears too and is pleased in its apprehension of order. But order is a rational principle. Contrast such purposes with those of that arch-modernist, Rimbaud, who wrote that “the poet should make himself a seer by a long, immense, deliberate disorder of all the senses.” Here, again, is the credo of a mind at war with human nature. The classical poet, finding the senses in a native state of order—attracted toward order, and therefore in harmony with our rational nature—only seeks to preserve that order, to cultivate it, to direct it toward greater and more encompassing realities. In doing so, the poet reveals again his conviction that something is there in human nature to be redeemed, something that extends all the way down to our sensual nature, since we are attracted to objects in nature that are proportional and lovely, and where we do not find these things outside of ourselves, we conjure them from within ourselves and usher them into the world.

In brief, the practice of classical poetry assumes, and simultaneously nurtures, the intuitive belief that human beings, for all of our undeniable imperfection, are marked in our essential natures by certain commendable desires, the gratification of which is edifying, that these are the desire for truth, goodness, and beauty, and that these are real things. I maintain that the art of poetry flourished in the West because, throughout its history, such beliefs were more or less normative, and that in the twentieth century, the beliefs and the art died together.

I will go further. I maintain that authentically civil life is impossible in the absence of such beliefs, which is almost as much to say that civil life is impossible in the absence of poetry. This was the meaning of the old fable of Amphion, who moved the stones into their place in the walls of Thebes when he sang to the music of his lyre. Poetry establishes the polis, the ordered community, because only poetry teaches men their “actual desires,” the desires that must be accommodated in any lasting and beneficial order. The community must be organized in accordance with human nature; all other disciplines render a theory of human nature, but only poetry reveals to us the real thing.

For these reasons, I cannot end without lamenting the failure of modern Christians—and clergy and theologians, in particular—to take the art of poetry seriously. I myself am no theologian, and I comment on religious topics only with the greatest diffidence, but it seems evident to me that Christian doctrine presupposes the same general conception of human nature I have delineated. We live in an age of skeptical “theory,” and that theory now appears more real to most of our contemporaries than their own experience. It will do no good, then, to go on preaching a doctrine presupposing that experience to an age so utterly seduced with theory. We must regain our natures before we can regain super-nature.

I sincerely wish all modern Christians would consider how far modern unbelief is involved in false and distortive theories of human nature, and consequently, how far a revival of the poetic art might be a true antidote to the prevalence of unbelief. I think of those ancient Christians who responded with vehement indignation to a decree of Julian the Apostate that forbade them from teaching the pagan poets to their children. They understood what I hope their spiritual descendants in our times will soon understand, that we must first be men, and only after that the children of God.

Mark Anthony Signorelli is a poet and essayist whose work has appeared in the New English Review, the Front Porch Republic, the University Bookman, Arion, and the Evansville Review.  His personal website is markanthonysignorelli.com. This is the second in a two-part series. Read the first here.

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Similarly, when one watches a performance of the Japanese Noh drama, one cannot help noticing the carefully restrained, almost ritualized movements of the actors, the way motion and language suggest, rather than directly imitate, human behavior. Here is a dramaturgy of reserve, rooted in the ancient Japanese aesthetic of wabi, “according to which anything gorgeous becomes truly beautiful with something subdued, so as to become half concealed by it” (Yamazuki Masakazu in an essay entitled “Artistic Theories of Zeami”). The aesthetic of wabi itself stems from certain Zen Buddhist teachings; Zeami, the great theorist of Noh, refers continually to the term yugen, a term from Zen Buddhist literature that refers to “what lies beneath the surface, the subtle as opposed to the obvious, the hint as opposed to the statement” (Arthur Waley in Noh Plays of Japan). Again, the artistic form embodies the philosophical convictions.

I call attention to these examples in order to illustrate what ought to be a basic principle of artistic theory, namely, that artistic form is never philosophically neutral, that it always embodies some identifiable ethical or cosmological perspective in itself, without any reference to the content of the artwork (insofar as form and content can be conceptually distinguished). This does not mean that the form of the artwork is propositional in any manner; Byzantine art does not assert the truth of neo-Platonic doctrine, nor does the Noh drama assert the truth of the wabi aesthetic. It is doubtful whether even the content of an artwork is propositional in just this way. There is no more difficult, no more crucial, question for artistic theory than the question of how the work of art means, and only the most hideous propaganda—that is to say, the very worst art—signifies in any unambiguously discursive manner. The sentences of Lucretius’ De Rerum Natura do not mean the same thing, nor in the same way, as the sentences of Epicurus’ teachings, though the former, in a certain way, is just a synopsis of the latter. The interpretation of the content of Lucretius’ poem is therefore already a more complex endeavor than the interpretation of Epicurus’ treatise, but this task becomes all the more daunting when we ask of Lucretius’ hexameters what, and how, do they mean.

I have chosen the word “embody” to describe the relationship between artistic form and philosophical perspective, and I think it suffices to capture something essential about that relationship. The Virgin of Vladimir does not propose the veracity of Orthodox Christianity; it embodies it. The audience member attending a performance of Noh is not being persuaded of Zen truth; he is being invited to share in a vision of things shaped fundamentally by Zen Buddhism. The drama is not submitted for his agreement or disagreement, but presented for his delectation, and insofar as that delectation is accomplished, he will regard the perspective not necessarily as true or false, but as desirable. And as his visits to the theater become more frequent and more attentive, as he becomes more accustomed to the Zen vision of things represented by the Noh drama, his mind becomes more and more habituated to that perspective.

Even as the artist’s encounter with the world is mediated by his artistic form—a dutiful sonneteer will eventually think in sonnets—to some extent, the same holds true for his audience as well; a people’s appropriation of reality is significantly determined by the artistic forms prevalent among them. Johann Huizinga, for instance, makes very clear how profoundly the late medieval society that he explored in The Waning of the Middle Ages was affected in its customary attitudes and behavior by the courtly lyrics and chivalrous romances so popular at the time. Similarly, the revival of the ideal of the classical orator during the early Italian Renaissance brought men such as Coluccio Salutati and Leonardo Bruni into the political arena for the first time; the rigid neo-classicism imposed by Richelieu’s Academy on the theater of the times prepared a generation of ambitious Frenchmen to acquiesce to the ritualistic formality of Versailles. As an artistic form becomes more common among a people, the philosophical perspective embodied by that form permeates the deepest structures of their minds, shaping their conceptions of reality in a way that is finally more consequential and consistent than would be the case with their conscious assent to any set of propositions.

With these principles in place, I ask of modernist poetry in particular: what is the philosophical perspective embodied in its forms? What is the conception of reality insinuated among its audience? What are the habits of thought produced by a regular exposure to its productions? Of course, I am well aware that modernist poetry is no monolithic phenomenon, that it encompasses a broad variety of styles in its own right. Yet as with any artistic movement (and there can be little doubt that, whatever literary modernism has been, it has been a deliberate movement), certain general features can be identified and questioned. I wish to examine a couple of incontestable features of modernist poetry, and simply ask what these common features of modernism mean, in the sense I have ascribed to the meaning of artistic form.

To begin with free verse, the obvious question is: in what sense is non-metrical poetry “free”? What is the concept of “freedom” entailed by the practice of non-metrical composition? One useful way to answer this question is to ask a different question: why didn’t the thousands of poets who composed in meter throughout the millennia regard themselves as any less free than the modernists? No serious student of literature could really believe that a Virgil or a Swinburne chafed resentfully under the alien strictures of metrical convention, and there is not the least indication that any worthwhile poet ever felt that way prior to the end of the nineteenth century. Why not? Clearly, because they regarded the use of meter (or alliteration, or rhyme, or stanzaic form) as an appropriate technique to achieve one of the universal purposes of the art they were practicing, the purpose of causing the reader delight. Patterned language brings the reader pleasure, and thus was an appropriate technique for the poet. The poet was confined by this technique in the exact same way a painter is confined by his paints; these things constitute the limits of the art just because they constitute its essence. A poet could only wish to be “free” from meter insofar as he wished to be “free” of his art and its essential ends. This is precisely the kind of freedom claimed by the modernist poet.

The freedom in “free verse,” then, is the freedom of modernity, the conception of freedom absolutely divorced from all conception of form. It is what Servais Pinckaers called the “freedom of indifference,” which he said was “practically identified with the will . . . In this way it came to constitute, in some way, by itself alone, the very being of the person, at the source of all action.” It is that conception of freedom that, as applied to persons, has slowly eroded belief in the moral essence of human nature, redefining human liberty as nothing more than the unfettered will. The “free” in “free verse” is the same “free” in “free market” and “free love”—the freedom to “do what we like.” It is a corresponding caprice that moves the writer of “free verse.” Thus, Wallace Stevens could airily remark, “There is such a complete freedom nowadays in respect to technique that I am rather inclined to disregard form so long as I am free and can express myself freely.” The poet claiming his freedom from meter is merely asserting his desire to write with a perfect indifference toward the telos of his art. There is nothing philosophically neutral about the form (or formlessness) of free verse; it embodies our own debased conception of freedom, the moral fulcrum on which the West has tilted toward ever-greater societal depravity. The vision that modernist poetry thus invites us to share in is primarily a vision of the liberated ego, the individual severed from all obligation to tradition, nature, or rationality. It is the manifested artistic expression of modern license.

What about the most distinctive feature of modernist poetry, which is its fragmentation and obscurity, what Jacques Barzun, in The Use and Abuse of Art, called “obscure, non-objective, non-communicative art,” and what Jacques Maritain, in his Creative Intuition in Art and Poetry, referred to when he claimed that the art of his times “endeavors to get free from the intelligible or logical sense itself,” that it represented “a process of liberation from conceptual, logical, discursive reason”? Tolstoy believed obscurity to be the dominant characteristic of modernism, claiming in What Is Art? that it had been “elevated into a dogma among the new poets,” and that “it has come finally to this: that not only is haziness, mysteriousness, obscurity, and exclusiveness . . . elevated to the rank of a merit and a condition of poetic art, but even incorrectness, indefiniteness, and a lack of eloquence are held in esteem.” In that “haziness” and “indefiniteness,” in the sometimes total lack of all trace of consecutive thought or syntactic propriety which modernist poetry betrays, we should discern the verbal embodiment of that total skepticism that so thoroughly determined the intellectual climate of the twentieth century: the doubts about the integrity of human identity, as put forward by Freud and the materialists; the doubts about the efficacy of language, as put forward by the deconstructionists; the doubts about the validity of reason itself, as put forward by almost everyone. In truth, it is this stylistic feature of modernist poetry—its impenetrability, its defiance of coherent ordering—that is most pregnant with the philosophical radicalism of our era.

I think the point is clear by now; in the same way that the mosaics in the Hagia Sophia embody the philosophical perspective of neo-Platonism, in the same way that the Noh drama embodies the philosophical perspective of the wabi aesthetic, modernist poetry embodies the philosophical perspective of late liberal Western society. The conception of freedom divorced from essence, the theoretical primacy of the individual, the broad skepticism toward any notion of a rational human nature—each one of these integral facets of that perspective receives its adequate formal expression in the creations of the modernists. To peruse the pages of Pound or Stevens or Ashbery is to be presented with a vision of things wholly informed by the most fundamental beliefs of the decadent West.

For this reason, I am always amazed, and not a little disheartened, to discover how little antagonism toward modernist literature commonly exists among persons who regard themselves as, in one way or another, antipathetic to modern currents of thought.         Much philosophical work has been produced in our times, exposing the dubious grounds of that mass of prejudice, half-truth, and rhetorical affectation referred to as “modern thought.” But where is the corresponding literary movement? Where is the attempt of criticism to return to ancient principles, as ethics and metaphysics have been attempting to do? There is no sign of such things on our intellectual horizon. (The New Formalism, which some may propose as a candidate for this role, has proven far too timid to counteract the trends of modernism, and far too concessionary to its basic premises.)

To the contrary, it seems to me that numerous people who pride themselves on their hostility to the modern world are quite content to enjoy its poetry. There is nothing demonstrably illogical about entertaining an appreciation for modernist poetry alongside anti-modern philosophical convictions, but we must assume that those who espouse a certain philosophical position wish to see that position prevail in the world, and art is the most effective means by which a particular vision of things can be disseminated. That is why it is so incongruous to find Christian “poets” filling the journals with free-verse, modernist-style creations; they are working against the advance of their own convictions by the style of art they practice, a form of self-contradiction unfortunately sanctioned by the example of that detestable little fraud, T.S. Eliot, who first deluded himself, and who has gone on deluding generations of Christians ever since.

Most people are content to admire whatever it is that they admire in the arts, without giving the matter much thought. And this is probably healthy for most people. But if we wish to harmonize our aesthetic inclinations with our rational natures, if we wish our artistic production to spring from a spiritual integrity, then we must realize that our philosophical antagonism to liberalism, relativism, and existentialism enjoins an aesthetic revulsion from the literature of liberalism, relativism, and existentialism. Nor should we fool ourselves into believing that there is any set of critical criteria by which we can, with rational coherence, approve the works of the classical, or pre-modern, poetic tradition, and those of the modernist tradition, for the latter came into the world explicitly to be the rejection and destruction of the former. But to understand why this is the case, I must say more about the philosophical assumptions embodied in that pre-modern tradition of poetic composition. That is the subject of my next essay.

Mark Anthony Signorelli is a poet and essayist whose work has appeared in the New English Review, the Front Porch Republic, the University Bookman, Arion, and the Evansville Review.  His personal website is markanthonysignorelli.com. This is the first in a two-part series. Read the second installment here.

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In our present intellectual climate, where rival atheist and theist camps disagree about whether God exists, why not circumscribe God’s role in this picture, bracket the question of his existence, and focus upon the ethical requirements of human nature alone? I want to consider a few reasons why this strategy is flawed, if it is adopted as a general method of ethics. It is, of course, possible to address many individual ethical problems in piecemeal fashion and on theologically neutral terms. There is no reason why vexed contemporary debates about abortion or gay marriage, for example, need to implicate theology. But the construction of an ethical theory, as a general matter, inevitably implicates what natural human reason can know about God.

This claim would appear to Plato, Aristotle, and Aquinas as obviously true. In the Nicomachean Ethics, Aristotle contends that the highest end of man is the contemplation of God. Even Plato’s Euthyphro, which is superficially interpreted by modern readers as critical of theological ethics, is in fact entirely consistent with a theological law conception of morality, as Elizabeth Anscombe argues in a posthumously published essay. For Aquinas, ethical theory necessarily implicates revealed theology in addition to natural theology, because he thinks that the final end of human beings is supernatural communion with God, which transcends the knowledge of God available through natural reason; the imperfect happiness afforded by merely natural goods is incapable of grounding an autonomous ethical theory. Even in the Summa Contra Gentiles, which does not presuppose the truth of biblical revelation, Aquinas suffuses moral discussions with natural theology. For example, Aquinas argues that the duty of human beings to act in accordance with their natures arises from the debt they owe God as their providential creator (see SCG II, 29, 17). In contemporary reconstructions of medieval natural law and classical virtue theory, however, God’s place in morality often becomes vacant or ambiguous.

Contemporary theorists hope that bracketing the question of God’s existence will clear the way for agreement on a conception of the natural world, which they assume will be less controversial than natural theology. But theists and atheists disagree about the existence of God because they already disagree about the nature of the world, including the nature of morality. To put it roughly, theists think that natural phenomena are not fully explicable apart from God, because they are finite and contingent. To explain why natural phenomena are what they are, and why they exist to begin with, it is necessary to appeal to an uncreated, necessary being—that is, to God. These natural phenomena include moral experience, such as the binding force of conscience, which is explicable only by inference to “the authority of divine precept,” as Aquinas argues. Atheists reject this inference, like the inference to a creator generally, because they assert that such ultimate explanation of nature is superfluous. There is no theologically neutral conception of the natural world that convinced theists and atheists share, therefore, because the disagreement about God’s existence, when it gets clear, is really a disagreement about how to characterize nature. For theists, nature’s finitude and contingency needs explanation, and for atheists, nature explains itself.

Let’s assume that the criterion of moral action is the final end, or ensemble of ends, that perfects human nature, and actions are good or bad insofar as they contribute to or frustrate the attainment of the final end. Actions will be intrinsically bad if they can never be ordered to the final end. At this point, the disagreement between theists and atheists about nature becomes morally acute. On atheistic assumptions, the final end must be some merely human good. Given this restriction, it is difficult to see how the final end could be specified determinately enough to demonstrate that certain kinds of injustice, such as intentionally killing the innocent, could never be chosen in order to advance the final end. Robert Miller, in his reply to my earlier essay on Public Discourse, says that this can be done, but he does not even hint at what the substance of the argument is supposed to be.

A lucid example that highlights this problem is John Rawls’s treatment of “supreme emergencies” in The Law of Peoples (1999). Rawls develops an account of just war that is similar to traditional theistic natural law theory, but different in a crucial respect: he allows for intentional killing of the innocent in supreme emergencies where the very possibility of civilized life hangs in the balance. The United States’ nuclear attacks against Japan did not meet this standard, Rawls argues, but the British attacks against Nazi Germany’s civilians earlier in the war did:

First, Nazism portended incalculable moral and political evil for civilized life everywhere. Second, the nature and history of constitutional democracy and its place in European history were at stake. Churchill really did not exaggerate when he said to the House of Commons on the day France capitulated that, “if we fail [to stand up to Hitler], the whole world including the United States … will sink into a new Dark Age.” This kind of threat, in sum, justifies invoking the supreme emergency exemption, on behalf not only of constitutional democracies, but of all well-ordered societies.

Whatever the merits of Rawls’s analysis of the historical examples, the principle of his argument is powerful—if his atheistic assumptions are granted. Rawls recognizes that intentional killing of the innocent is bad, perhaps intrinsically bad, and ordinarily should never be considered. The prudent statesman may nevertheless, in supreme emergencies, decide to kill innocent civilians, because Rawls’s political liberalism rules out trust in God’s promises or obedience to his commands as too sectarian for pluralistic politics. (Never mind Rawls’s sophistical appeal to “public reason,” elsewhere in the book, that allows him to exclude philosophical theology.) I simply want to point out that the non-theological arguments for moral absolutes do not hold up against a position such as Rawls’s. Early in the war, Churchill may have reasonably thought that he faced a tragic dilemma: kill some innocent Germans in the course of defeating the Nazis or let the Nazis kill countless innocent people everywhere. If the traditional prohibition against killing the innocent is to be compelling in such a situation, then the blinkers of methodological atheism must be removed.

Consider Peter Geach’s argument in his essay “Moral Law and the Law of God,” which I alluded to in my previous essay. Geach points out that non-theological arguments for exceptionless moral prohibitions, such as Aristotle’s, fail to show that it is unreasonable for someone to sacrifice his own moral integrity by doing something he takes to be bad if the action will seriously benefit others; Churchill could have plausibly thought that he was in this position. But suppose that natural reason can establish that God exists and, like human beings, is a voluntary agent, as many philosophers have thought. From this premise, Geach argues that it is reasonable to conclude “that God will not only direct men to his own ends willy-nilly like the irrational creatures, but will govern them by command and counsel.” Now given that we can know that practices such as intentional killing of the innocent are generally bad, we should infer that this knowledge “is itself a promulgation of the Divine law absolutely forbidding such practices.” This inference must be valid, because otherwise God would have created most people without promulgation of his commands about acts that they must never choose, which would contradict the initial conclusion that God is a voluntary agent who commands and counsels his creatures.

Geach’s argument needs to be developed at much greater length, of course, but it strikes me as promising; in any case, I have already pointed out flaws in Christopher Tollefsen’s attempt to justify exceptionless moral norms by appeal to the logic of “basic goods.” Tollefsen’s reply to my critique leaves the substance of my argument untouched. First, he repeats the common mistake that Anscombe dispatched in her famous essay “Modern Moral Philosophy”: divine law cannot generate a moral obligation unless there is already a moral obligation to obey divine law. This is like saying that a doctor can’t give you a prescription unless there is already a prescription for you to go to the doctor. On the contrary, for traditional theists such as Aquinas, a divine command gives you a new reason for doing what the command requires, because God has legitimate authority. His commands make perspicuous to you those acts and omissions without which you cannot reach your final end.

Second, Tollefsen misunderstands what tragic dilemmas are. They need not be cases where two moral absolutes conflict. They can be cases where a defeasible moral duty conflicts with an absolute prohibition. Rawls’s analysis of Churchill’s position early in the war provides just such an example: Rawls doesn’t claim that Churchill’s duty to protect the United Kingdom and her democratic allies was absolute; presumably this duty could be overridden in different circumstances. Rather, his argument is that this duty, although defeasible, justifies the intentional killing of the innocent in the circumstances of World War II, given what was at stake. The route to refuting Rawls is blazed by Aquinas, and it requires establishing that the universe, and man’s place within it, is providentially ordered, which would imply that “tragic” dilemmas are avoidable because they are either merely apparent or the consequence of prior wrongdoing.

What I have been arguing for here is an approach to ethical theory that is broadly in the tradition of Plato, Aristotle, Aquinas, Geach, Anscombe, and others who recognize that God’s existence is directly relevant to both the force and content of the claims that morality has upon us. Furthermore, this tradition also recognizes that the criterion for moral action is human nature and the goods that perfect it. The crucial question is whether or not human nature is created, for if it is, then the reasonable norms of nature are really obliging laws in a providential universe governed by the commands and counsels of the Creator. As John Finnis rightly points out in his book Aquinas, conceiving of human nature as created by God “enhance[s] both the content and normativity” of morality. His mistake, which Tollefsen echoes, is to think that the force of exceptionless moral norms can be demonstrated before broaching philosophical theology. The debate over moral absolutes is only one among a number of problems that illustrate the implications of how the question of God’s existence gets answered.

Matthew B. O’Brien is a postdoctoral fellow at Villanova University.

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After King was arrested for parading without a permit, he took a moment, from the confines of his jail cell, to pen a response to his fellow clergymen and offer a justification for his resistance to segregation ordinances. Like any civically minded lawbreaker, King faced vexing moral and philosophical questions from the outset: how did he know whether a law was just or unjust, and when, if ever, was it morally permissible to disobey? In his now-celebrated “Letter from Birmingham City Jail,” King’s answer was that “a just law is a manmade code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law.” “To put it in the terms of St. Thomas Aquinas,” King explained, “an unjust law is a human law that is not rooted in eternal and natural law.”

Those who praise the modern civil rights movement, but who also want to keep morality and theology absent from public discourse, seldom mention King’s reliance on natural law in his justly famous letter. Scholars such as the late John Rawls were at great pains to show how their thoroughly secularized theories of justice and public reason could make room for King, but in fact they could do so only at the cost of minimizing the seriousness of King’s argument. The son and grandson of Baptist preachers, King had studied the Western philosophical tradition while completing his doctorate in philosophical theology at Boston University, and his defense of civil disobedience drew from the work of Thomas Aquinas in particular.

Human ordinances, Aquinas argued in his Treatise on Law, can be contrary to the human good—and therefore unjust—by way of their end, author, or form. The first mode of legal injustice, according to this schema, is a law designed to bring about private gain at the expense of other members of the community. Otherwise benign laws can also be terribly unjust if made by someone without legitimate lawmaking authority or enforced in an illegitimate or partial manner. King, of course, had in mind Jim Crow laws when he spoke of legal injustice, but the concrete examples he marshaled in his letter followed the general contours of Aquinas’s natural law theory.

First, King suggested, “a code that a majority inflicts on a minority that is not binding on itself” is unjust, because the end of the law is some private good rather than the good of the community. Second, “a code inflicted upon a minority which that minority had no part in enacting or creating because they did not have the unhampered right to vote” is unjust, because such a law, in a republican regime, was made by an illegitimate authority. The final mode of legal injustice—and perhaps most obvious given King’s arrest for marching without a permit—was “a law just on its face and unjust in its application.” There was of course nothing wrong with requiring permits for marches, but it was unjust, King thought, to specifically deny permits to civil rights protesters in an attempt to silence their message.

Following Augustine and Aquinas, King famously claimed that unjust laws were no laws at all. Rather, they were acts of violence and usurpations of law that damaged the human good and failed to instill a moral responsibility to obey. And yet even in the face of legal injustice, Aquinas cautioned great prudence and forbearance when deciding whether to engage in disobedience. For the sake of avoiding scandal or the breakdown of public order, Aquinas taught, it may be appropriate in many circumstances to simply suffer injustice. Aquinas’s thought on this point seems to be that the good of individuals and communities will often be more secure under an imperfect but stable order than in a broken, unstable, and scandalized community.

Theological concepts play an important supplementary role in King’s case for overcoming the heavy prudential burden against civil disobedience. After offering specific examples to demonstrate why Jim Crow laws were unjust in end, author, and form, King suggested that these laws were also unjust in a much more fundamental sense. Even if some of the procedural aspects of justice were fulfilled, King insisted, these laws would remain “morally wrong and sinful,” because, as he argued, “Any law that uplifts human personality is just. Any law that degrades human personality is unjust. All segregation statutes are unjust because segregation distorts the soul and damages the personality.”

Although the reference to human personality here may seem a bit out of place, King’s comments were rooted in a tradition of philosophical personalism, which emphasized the personal—rather than material—nature of ultimate reality. Under the tutelage of Edgar Sheffield Brightman, Harold DeWolf, and other philosophical personalists at Boston University, King came to believe that ultimate reality was necessarily personal. The philosophy to which King was exposed in Boston buttressed his belief in a personal God, which he had long ago developed as a child growing up in the Christian church. In fact, the “two greatest formative influences on King’s thought and action,” King’s Pulitzer Prize–winning biographer David Garrow notes, were “the biblical inheritance of the story of Jesus Christ, and the black southern Baptist church heritage into which King was born.”

King was, first and foremost, a pastor, nurtured in the Christian tradition and sharpened by his encounter with the classic texts of Western philosophy. His description of segregation ordinances as “morally wrong and sinful” occurred within a theological framework, and his justification of civil disobedience was indebted to the tradition of natural law philosophy. Indeed, the cogency and persuasiveness of King’s letter depend on such controversial and contested theological and philosophical claims.

These aspects of King’s letter provide a challenge to modern theorists who would, as a matter of principle, scrub the public sphere clean of all philosophy and theology. Lest their insistence on a naked public square appear to be merely an unprincipled attempt to silence conservative moral and religious arguments, they must reluctantly exclude much of King, as well. Attempts to erase or diminish King’s theological and philosophical commitments will not do, for although he was famous for declaring that he had a dream, we sometimes forget that his dream was of a world in which “every valley shall be exalted, and every hill and mountain shall be made low, the rough places will be made plain, and the crooked places will be made straight.” One of the most famous passages of King’s most famous political speech comes verbatim from the fortieth chapter of the book of Isaiah, and the original context was a prophetic vision of one preparing the way for the political rule of God.

King is of course the kind of historical figure that practically everyone wants to claim as his own. Reality, however, is often complex, and the truth about King is that his primary motivations, his most fundamental commitments—the very core of his thought—were rooted in a worldview repugnant to many of those who now claim his legacy. Despite his personal failings, many of which have come to light in the years since his assassination, we should remember King for who he was: an imperfect man and a Christian pastor who, in the best tradition of American politics, fought for justice by appealing to a law higher than the state while respectfully and thoughtfully engaging his interlocutors on the principles of a just political order.

Justin Dyer is an assistant professor of political science at the University of Missouri and author of Natural Law and the Antislavery Constitutional Tradition (Cambridge University Press). Kevin Stuart is a political consultant at Teddlie Stuart Media Partners in New Orleans, LA and a graduate student at the University of Texas at Austin.

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The decision was, strikingly, unanimous: no one disagreed with Chief Justice Roberts’s opinion for the Court. The only separate opinions were concurring ones, suggesting further extensions or specific applications of the Court’s reasoning. On a Court that has often been bitterly divided, this expression of unanimity is truly remarkable.

The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord). Essentially everything the Court said was right. And every right thing it said is important—a point brought home by considering the consequences if the Court had ruled the opposite way, as the Obama administration had urged and as many feared possible.

Consider for a moment, point by point, what makes Hosanna-Tabor so praiseworthy:

First, the Court specifically grounded the so-called “ministerial exception” to employment discrimination laws in an affirmative First Amendment constitutional right of religious organizations to select their own faith leaders and exemplars, free of government interference. The “ministerial exception” originated in a series of lower court decisions, beginning forty years ago, reading into federal anti-discrimination employment statutes an implied exception for a church’s hiring (and firing) of ministers. The exception had the feel of judge-made law, carving out of the law as written an unwritten escape hatch (of indeterminate breadth) for churches and synagogues. The lower courts then struggled with how to apply an unwritten statutory exception, creating all the problems, in principle and practice, common to legal rules seemingly made up by judges as they go along, in disregard of the text.

Hosanna-Tabor was the Supreme Court’s first case involving the “ministerial exception.” The justices might have chosen to embrace the exception on a more namby-pamby, “we-construe-the-statute-in-such-a-way-as-to-avoid-the-possibility-of-its-creating-constitutional-difficulties” approach—not exactly embracing a constitutional rule but adopting an awkward rule of interpreting statutes in such a way as to avoid possible constitutional problems. (The Court has done this a fair bit, including in the religious freedom context.) Chief Justice Roberts’s opinion would have none of that: the right embraced in Hosanna-Tabor is a First Amendment constitutional right.

This right is not a judge-made interpolation into a statute; it is not a rule of construction; it is not an avoidance of deciding a constitutional question. It is a right supplied “by the text of the Constitution itself.” Hosanna-Tabor is a constitutional holding that where the Constitution supplies one rule (here, that religious groups have the right to hire and fire, free from government interference, those who personify and represent their faith communities, as an aspect of the free exercise of religion) and a statute supplies a contrary rule (that government generally may regulate employment practices, for example, to forbid practices it considers discriminatory), the Constitution’s rule trumps the statute’s. This is straight, old-fashioned, Marbury v. Madison-style judicial review: the Constitution is law and prevails over inconsistent statutes, to whatever the extent of the inconsistency. There is nothing judge-made, narrow, ad hoc, or uncertain about this. Hosanna-Tabor is a rule of First Amendment constitutional law.

Second, the rule that Hosanna-Tabor embraces is a broad, principled rule of First Amendment constitutional law. The “ministerial exception” label really ought to be discarded, for it is now something of a misnomer, a relic of the pre-Hosanna-Tabor, lower court-developed doctrinal approach. Rather, the right should be understood as the “religious autonomy right”—an “exception” to nothing but a principle of its own.  For it is clear from the Court’s opinion that this right of autonomy embraces more than just the hiring of “ministers,” narrowly defined. The plaintiff who had sued Hosanna-Tabor Evangelical Lutheran Church and School was not a pastor in the traditional sense but a teacher in a religious school, teaching secular and religious subjects, but designated by the religious community as a minister.

This counts, the Court said. The principle established by the First Amendment is that a religious group has the “right to shape its own faith and mission through its appointments” and thus has plenary “control over the selection of those who will personify [its] beliefs.” This includes teachers, lay leaders, and persons who perform a mix of religious and seemingly “secular” functions. The right extends to those whom a religious community, operating under its own system of rules, designates as central to its religious mission and identity. The Court’s one-word descriptor perhaps says it best: those persons that the community identifies as personifying its religious identity. The Court decided only the case before it, but it made clear that the right itself is one of religious community autonomy, broadly understood. It is not a right limited to pastors alone.

This interpretation has important consequences beyond direct employment regulation through anti-discrimination laws. Student religious groups, at state university campuses and at public schools, are religious communities, too. So are para-church ministries and many other types of religious organizations. They, too, have the right to control the selection of those who personify their beliefs, and to shape their own faith and mission through their decisions.

Third, the Court in Hosanna-Tabor held that the right of religious community autonomy is a right specifically of constitutional religious freedom, which exists regardless of what rules government might have the authority to impose on (otherwise) analogous organizations. The Obama Administration had argued, vigorously, that the rules for ministers should be the same as the rules for private associations generally—that there is nothing unique about religion or religious employment. Chief Justice Roberts’s opinion demolished this position: “We find this position untenable . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

This is important. The Supreme Court has unanimously held that the Free Exercise Clause of the First Amendment provides additional and independent rights to religious organizations, beyond those to which non-religious groups are entitled as a matter of the freedoms of speech and association. Even when government might be able to regulate the employment or internal governance of non-religious organizations and associations, it may not regulate the selection by religious groups of its leaders and exemplars.

Perhaps most significant of all was the Court’s response to the suggestion that Employment Division v. Smith (1990) foreclosed such special constitutional accommodation of religious practice. The Court stated flatly that this was an overly broad reading of Smith that “has no merit.” For those who have regarded (and experienced) Smith as a major retrenchment from true religious freedom, Hosanna-Tabor offered a ray of hope. The Court seemed to limit Smith much more tightly to its specific facts than it has before. Conceding that anti-discrimination laws, like Oregon’s prohibition of peyote use (at issue in Smith), are “valid and neutral” laws of general applicability, the Court distinguished Smith sharply: “a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.”

It is too soon (by a long shot) to shout “Hosanna!” for the overruling of Employment Division v. Smith. But it is not too soon to observe that the Court has drawn a line—if an imperfect one—between “outward physical acts” and “internal” religious community practice that affects the “faith and mission” of the religious community, and, notably, has placed employment practices on the “internal . . . faith and mission” side of the line, not governed by Smith.

All of this is especially significant when one considers what the Court might have done—how Hosanna-Tabor could have gone very wrong. One imagines, and shudders at the prospect, of a decision in which the Court might have held that employment discrimination laws are laws that apply to everybody, on an equal basis—religious and non-religious institutions alike (citing Smith with approval, rather than distinguishing it); that, to be sure, religious institutions possessed equal rights of freedom of association to secular institutions, but not greater ones; that, whatever the possible merit of a “ministerial exception” to anti-discrimination law in extreme cases (such as requiring the Catholic Church to ordain women), the facts at hand, involving a claim of disability discrimination brought by a teacher, not a pastor, did not warrant the Court’s “creating” an exception where Congress’s statute had not done so, and the First Amendment does not of its own force create one.

That, I must confess, is how I feared the case might come out. The fact that Hosanna-Tabor did not turn out that way—and, instead, adopts precisely the opposite of each of those plausible but sinister propositions—is its great achievement.

The achievement is, in significant part, that of Chief Justice John Roberts, a masterful legal craftsman, whose skills as a legal advocate and persuader—forged by years as a leading Supreme Court practitioner, brief writer, and oral advocate—enabled him to build a unanimous Court in support of a dramatic defense of religious liberty, in an important context. He also left a trail of wonderful bread crumbs for future possible decisions. If not picked off by crows, Hosanna-Tabor’s statements of principle may become even more important than its specific holding.

The opinion closes with an important statement, shifting, subtly, the psychological balance of how the Court, and, one hopes, the country, sees these issues: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” With respect to a religious community’s freedom to select its minister, “the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

One could do far worse than that as a statement of religious liberty, and the Court often has. Hosanna-Tabor is truly a shout of praise to first principles of the First Amendment.

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

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The Obama Administration’s claims that it favors local control in education are belied by its actions—for example, coercing states to accept federally approved content standards and to compile and share private student data. But as evidence of federal interference run amok, Exhibit A is the Administration’s campaign to outlaw “bullying” and “harassment” in schools. From the Administration’s standpoint, this campaign offers double benefits: it enables the federal government both to control the minutiae of daily school operations, and to impose its preferred cultural attitudes. This attack is demonstrably inconsistent with constitutional and statutory law, and is yet another troubling transfer of power from families and localities to Washington.

The federal government’s constitutional role in education is basically nonexistent; the education of children is quintessentially a local and familial function. Though Congress long ago inserted itself into education policy despite this lack of authority, the federal government almost certainly does not have the power to enact an outright ban on bullying, under either the Commerce Clause (see U.S. v. Lopez) or the Fourteenth Amendment (see U.S. v. Morrison).

Congress and the federal Department of Education evade this problem through the power of the purse. Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and two lesser known statutes prohibit any educational institution that receives federal funding from discriminating on the basis of race, color, national origin, sex, or disability. If a school takes our money, says the Department, it must obey our rules. The Supreme Court generally allows this technique under the Spending Clause, Art. I, § 8 (see Davis v. Monroe County Bd. of Ed.). Thus does the federal government assume control in an area the founders left to local authority.

In October 2010, the Department’s Office for Civil Rights (OCR) announced its intention to aim these civil-rights statutes at schools that mishandle (in its view) student interactions. Decrying a supposed “pandemic” of bullying and harassment, OCR issued what is known in the bureaucracy as a “Dear Colleague Letter” to warn schools about potential civil-rights liability in such cases. Now, every teacher who addresses the everyday complaints of one student about another must fear being second-guessed by a bureaucrat in Washington. It is difficult to imagine a more inappropriate intrusion of federal authority into a manifestly local issue.

The OCR Letter’s Conflict with Current Federal Law

A particularly obvious problem with the Letter is the breadth of its definitions. Harassment, it says, “may take many forms, including verbal acts and name-calling; graphic and written statements, which may include use of cell phones and the Internet; or other conduct that may be physically threatening, harmful, or humiliating.” The government website fleshes this out: bullying includes “name-calling, teasing, spreading rumors, leaving people out on purpose, [and] breaking up friendships.” In other words, the federal definition of bullying includes much of what occurs in every school every day, and has since the advent of schools. The government presumes to hold schools accountable—through the threat of lost funding—if they do not stop it.

Another fundamental problem with the Letter is its inconsistency with Supreme Court authority. In Davis v. Monroe County Board of Education, the Court ruled that a student may recover damages from a school under Title IX for sexual harassment by another student, but only under very limited circumstances: school authorities must have been deliberately indifferent to, although they had actual knowledge of, harassment that was so severe, pervasive, and objectively offensive that it deprives the victim of access to educational opportunities or benefits. The Letter’s conflicts with this standard are several:

• The Letter changes the phrase “severe, pervasive, and . . . objectively offensive” to “severe, pervasive, or persistent.” The altered conjunction is significant: whereas the Davis Court required that all three conditions be met before liability would attach, OCR allows liability if any one of the three is present. Thus, as the dissenters to a U.S. Commission on Civil Rights “bullying” report warned, “schools can be in violation of Title IX based on a single student act if the government believes it is sufficiently severe.” This result was never contemplated by Davis.
• The Letter removes the requirement that the conduct be “objectively offensive” to justify liability. This change appears to eliminate the “reasonable person” standard, so that a school could lose federal funding for disregarding conduct that seemed harmless to the objective observer.
• Although Davis allows liability only for harassment that “deprive[s] the victims of access to educational opportunities or benefits,” the Letter  changes “deprives” to the more expansive “interferes with.” This change in terminology broadens schools’ potential liability beyond the Davis limits.

The Letter changes the Davis holding that there is no liability unless a school had “actual knowledge” of the misconduct. OCR says instead that the school may be liable if it “knows or reasonably should have known”—a much broader standard than that applied by Davis. The OCR Letter also expands potential liability beyond school grounds. Davis emphasized that the school could be liable only for harassment that occurred during school hours and on school grounds; other courts have similarly refused to sanction a school based on off-campus misconduct (see Lam v. Curators of the Univ. of Missouri at Kansas City Dental School). But the Letter obviously contemplates holding schools accountable for such behavior, especially in its reference to Internet-based misconduct. Unkind remarks posted on Facebook late at night may be distressing to a student, but is it fair to hold a school accountable for them?

In expanding potential liability so far beyond that allowed in Davis, OCR assumes the authority to reinterpret the governing statutes (primarily Title IX and Title VI). As Professor John Eastman has pointed out, an administrative agency has only limited authority to interpret statutes, especially when the Supreme Court has already done so and has reached different conclusions. So a school targeted by OCR may ultimately prevail in court, but the risk and expense of protracted litigation may (as OCR perhaps intends) force it to submit without a fight.

In addition to the inconsistency with Davis, the OCR Letter expands the coverage of the federal statutes beyond their clear terms. The statutes do not cover discrimination based on sexual orientation or religion, yet the Letter purports to include harassment bases on these nonstatutory characteristics. The legal basis for extending the sanctions to sexual-orientation harassment is at least colorable (by labeling it “sex stereotyping”); this is not true of harassment based on religion. Nevertheless, OCR now appears ready to crack down on schools that allow students to express opinions about, say, the connection between Islam and terrorism.

The OCR Letter’s Conflict with the First Amendment

OCR’s sweeping prohibition of “harassment” and “bullying” carries serious First Amendment implications. May a student express a negative opinion of illegal immigration, or could that be prohibited as harassment toward Latino students? May a boy argue in a public-speaking class that women should not be allowed in combat, or could that be prohibited as harassment toward female students? Troubling hypotheticals abound.

The OCR Letter dismisses the First Amendment problem in a single reference: a two-sentence footnote. That allotment of space crystallizes the level of regard OCR apparently has for freedom of speech.

A school’s regulation of student speech comports with the First Amendment only when (with minimal exceptions) the speech would substantially interfere with or disrupt the work of the school or the rights of other students (Tinker v. Des Moines Independent Community Sch. Dist.). “The Supreme Court has held time and again . . . that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it” (Saxe v. State College Area Sch. Dist.).

Under this standard, OCR’s attack on what it labels harassment or bullying potentially conflicts with the First Amendment. At a Civil Rights Commission hearing held in May 2011, government witnesses insisted that OCR is focusing only on unprotected conduct involving physical threats or creating a reasonable fear of physical harm. But commentators such as Professor Eugene Volokh have refuted this, noting that the Letter’s sweeping language reaches even purely verbal acts well beyond those that can be regulated under Davis and Tinker. At the Commission hearing, no OCR witness denied that the Letter means exactly what it says.

To date, courts have held that even offensive student speech may be protected by the First Amendment. (See Saxe v. State College Area Sch. Dist. and DeJohn v. Temple Univ., both striking down overly broad school “discrimination” or “harassment” policies.) So, a school that defends against OCR action on First Amendment grounds may very well prevail in court. But again, OCR appears to be betting on schools’ unwillingness to risk federal funding and devote extensive time and resources to litigation. First Amendment jurisprudence has a term for this: “chilling effect.”

One aspect of the OCR letter that deeply implicates the First Amendment is the prohibition of “harassment” based on sexual orientation (known as LGBT—lesbian, gay, bi-sexual, and transgendered). By expressing his belief, based on religious faith, that LGBT conduct is immoral, a student exercises his First Amendment rights both to freedom of speech and to freedom of religion. But if an LGBT student takes offense, would OCR respect the speaker’s First Amendment rights? Unlikely. More likely to prevail is the attitude expressed by U.S. Civil Rights Commissioner (and former Pelosi advisor) Michael Yaki, who argues that “government action to stop bullying in schools, particularly bullying against LGTB or LGTB-identified children, [should] be given substantial deference with regard to competing First Amendment concerns.”

Thus does the Obama Administration achieve two goals: it extends the tentacles of federal control more deeply into the day-to-day operations of schools, and it bans the expression of religious and cultural attitudes disfavored by government elites.

The Practical Effect of the OCR Letter

Instructed that “bullying” may be second-guessed by federal bureaucrats with a political agenda, the most likely response will be similar to the “zero tolerance” overreaches that prevailed after high-profile school shootings. Schools are likely to shut down, to the extent possible, all discussion of controversial topics that might offend, and to overreact to every complained-of slight. Expect also the flowering of additional bureaucracy at every level of educational administration, and, as has already begun, marketing of pricey packages designed to train teachers and administrators to prevent kids from acting like kids. And expect students to view teachers and administrators with diminished respect—since the government has pre-judged them as incompetent.

What effect will this bureaucratization have on children? New York psychotherapist Israel Kalman argues that the governmentalizing of responses to bullying actually harms children—even (perhaps especially) those who are the victims. According to Kalman, children must learn how to handle meanness from others and will suffer later in life if they miss these lessons. The better approach is to teach victims how to parry a bully’s thrusts rather than encourage them to run to the principal (which, as any former child knows, guarantees even more mistreatment from the bully). If they learn how to stand up for themselves, they are less likely to be bullied again and more prepared for the real world.

The Obama Administration justifies its obsession with bullying by claiming that the incidence of such misconduct has reached a “pandemic” level. It cites “research” such as an American Association of University Women study, reporting the percentage of eighth- through twelfth-graders who have been sexually harassed during school at a manifestly preposterous 81 percent. But a study funded by the Justice Department and released in 2010 found a sharp drop in the percentage of students who reported being bullied or harassed. Other researchers have made similar findings. So what is going on here?

The unspoken truth behind OCR’s “bullying” campaign is that it is directed primarily at speech critical of government-favored constituencies, such as homosexuals. The Obama Administration has embraced the mission of radical gay-rights groups to propagate full acceptance and affirmation of LGBT lifestyles. The goal is to delegitimize, and ultimately outlaw expression of, orthodox religious beliefs relating to marriage and sexual behavior. Viewed through this lens, OCR’s anti-bullying campaign is worse than silly—it’s dangerous.

Parents should recognize this new federal takeover for what it is, and insist that their legislators rein in OCR’s assault on freedom of speech and belief. Teachers and principals must be allowed to do their jobs and be accountable to parents—not to distant bureaucrats enforcing a political agenda.

Emmett McGroarty, Esq., is Executive Director of the Preserve Innocence Initiative at the American Principles Project. Jane Robbins, Esq., is a Senior Fellow with the American Principles Project.

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Equally important is the Society’s affirmation of its commitment to palliative care. The policy, according to Young, expresses “support for patient dignity and the alleviation of pain and suffering at the end of life,” and encourages physicians “to contribute to the comfort and dignity of the patient and the patient’s family.” As the Society acknowledges, palliation is an important part of the doctor’s vocation. Doctors rightly provide comfort to the dying, even when they know that death inevitably approaches. Unlike assisted suicide, palliative care is not inconsistent with the physician’s commitment to life and health.

Physicians in Massachusetts thus grasp a fundamental distinction that proponents of assisted suicide elide. That is the difference between choosing to cause death and choosing instead to provide comfort, knowing, but not intending, that death might be hastened as a result.

Proponents of assisted suicide obscure this distinction by focusing exclusively on consequences and ignoring purpose and intent. They observe that a terminally ill patient, who qualifies for physician-assisted suicide in those states that now allow it, is going to die no matter what. Why should it matter whether that death comes about as a result of a deliberate act or rather in the natural progression of the disease? Indeed, they insist, it is uncaring not to help the patient kill himself, to leave the patient exposed to the pains of a debilitating illness.

The choice between suicide and suffering is a false choice. Physicians do and should act with a purpose to relieve pain. Palliative care expresses respect for the lives of suffering patients, including those patients who are about to die. To acknowledge that death is inevitable is not to choose death; the fact that death occurs is not itself morally significant. But whether we choose death or not is morally significant.

A physician who helps her terminally ill patient live out his last days with as little pain as possible, even if this means hastening death, has not failed morally. Her action is every bit as reasonable as an act of self-defense, prosecution of a just war, or any other act that results in death, where the death is a foreseen consequence but is not intended. In other words, the principle of double effect applies to healthcare providers, just as it applies to everyone else.

By contrast, one’s purpose with respect to death is extremely important. It is the choosing of death, acting with a purpose that death will result, that is morally problematic. Death is not something to be chosen, least of all by doctors. A physician who adopts the death of her patient as the purpose for her action has become a different kind of physician. Indeed, she has become a different kind of person. She has become a person who chooses death over life.

A person who purposely chooses to cause death, who makes death a reason for his actions, is not oriented toward the good. This is because choosing has a creative, self-making significance. To adopt by free choice a reason for one’s action is to make that reason part of one’s projects and commitments. By choosing life, one becomes a person oriented toward life. By choosing death, one becomes a person oriented toward death.

A person who is oriented toward life is going to act very differently than a person who is oriented toward death. Once one has adopted death as his purpose, death becomes a potential reason for action in later instances. One who considers purposeful death as an option will consider it reasonable to weigh the deliberate destruction of life against more costly alternatives, such as extended palliative care. If death itself is a reason for action, then nearly any hardship in life is sufficient to justify death. Addressing the underlying cause of the hardship is viewed as merely one option, and self-murder is often a less costly alternative.

For these reasons, the availability of assisted suicide is the enemy of palliative care. Perhaps this is why some have found that palliative care is declining in Oregon, where physician-assisted suicide has been permitted for several years. Indeed, there is good reason to believe that opposition to assisted suicide and concern about patient suffering, far from being enemies, actually go hand in hand. Respect for the intrinsic value of life provides a motivation to alleviate pain at the end of life. And a commitment to improving palliative care might eradicate demand for assisted suicide.

Human beings have value simply by virtue of their being alive. This does not mean that the value of life is absolute, that measures should always be taken to prolong life, or that one should never take any action that might hasten death. But we should not ask physicians to act with a purpose to bring about the death of their patients. We could not so alter the role and character of physicians without causing serious harm to their profession and to those whom they serve.

Adam MacLeod is an Associate Professor at Faulkner University’s Thomas Goode Jones School of Law.

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A recent national survey by the Public Religion Research Institute (PRRI) provides a closer look at public opinion on same-sex marriage. The survey was funded by the Arcus Foundation, an organization that champions the rights of gay, lesbian, transgender, and bisexual persons. According to the 2011 PRRI survey, views on same-sex marriage are evenly divided among the U.S. population as a whole: 47 percent of Americans favor it and 47 percent oppose it. Interestingly, this national survey reveals that 62 percent of Millennials (age 18 to 29) favor allowing gay and lesbian couples to marry. In contrast, only 31 percent of senior citizens (age 65 and older) report favoring same-sex marriage. The fact that Millennials are twice as likely as senior citizens to support same-sex marriage provides important evidence of a generation gap on this hot-button issue.

The media coverage of the PRRI survey, however, has painted a very different picture of the findings, drawing the more general conclusion that younger Americans are pro-gay while senior citizens are anti-gay. But does the PRRI survey, as well as other recent national surveys, provide data actually supporting such a conclusion? The 2010 Baylor Religion Survey (BRS) contains relevant questions regarding views on homosexuality that may be helpful in gaining a more accurate understanding of the degree to which there exists a generation gap on the specific issue of gay marriage, as well as the issue of homosexuality more generally. Like the PRRI and other national surveys, the BRS reports that 63 percent of Millennials favor same-sex marriage, while only 33 percent of seniors support same-sex marriage. Additionally, the BRS found that 74 percent of Millennials and 56 percent of seniors agree that “homosexuals should be allowed civil unions.” Though Millennials are significantly more likely to support civil unions, it is not the dramatic split found in support of gay marriage. This finding confirms that civil unions are significantly more palatable than gay marriage for younger as well as older Americans.

Several other questions on the BRS shed additional light by asking questions on homosexuality as well as gay marriage. For instance, the BRS finds there is essentially no difference between Millennials and senior citizens in response to this survey question: “Homosexuals should have equal employment opportunities.” Fully 93 percent of Millennials and 90 percent of senior citizens agreed with that statement. In other words, both young and old Americans overwhelmingly (9 out of 10) believe that homosexuals should have equal employment opportunities. If older Americans are indeed anti-gay, one would not expect 90 percent of senior citizens to support equal employment opportunities for homosexuals.

Millennials and older Americans actually respond in much the same way when asked another question about homosexuality. For example, 54 percent of Millennials and 59 percent of seniors agree with the statement: “People are born either as homosexual or heterosexual.” Finally, Millennials are slightly more likely than seniors to agree with the statement: “Do people choose to be homosexual?” Thus, one can argue that Millennials are more similar than they are dissimilar to senior citizens when asked questions about homosexuality.

As stated earlier, the one area where there is a dramatic divergence of opinion between the young and the old is on support for same-sex marriage (62 percent and 31 percent respectively). Perhaps the striking difference between the views of the young and the elderly on gay marriage is merely a function of the fact that Millennials are much more likely to be exposed to homosexuals or have homosexual acquaintances than senior citizens are. But this is not the case, as there is very little difference between Millennials and seniors, with the vast majority (87 percent and 82 percent respectively) indicating that they “personally know someone who is homosexual.” Simply put, it is inappropriate on methodological grounds to draw the conclusion that opposition to same-sex marriage is synonymous with being anti-gay.

But what are we to make of the undeniable evidence that older Americans (age 65 and older) are twice as likely as young Americans (age 18 to 29) to oppose same-sex marriage (62 percent and 31 percent respectively)? Why is there such a large age effect when it comes to views on gay marriage? I offer two possibilities for consideration.

First, since the issue of gay marriage is a relatively new one, it makes sense that younger Americans have had to confront the issue much earlier in life and with far more social pressure. Americans age 65 and older grew up in a time when they simply did not have to contend with the issue of gay marriage. Millennials, on the other hand, have not been as fortunate as their older counterparts. Most young Americans between the ages of 18 to 29 have been exposed to the issue of gay marriage throughout their adolescence and young adulthood. This is especially true of youth attending public schools in the last several decades. Indeed, public schools in recent years have been much more likely to utilize curricula in support of favorable rather than unfavorable attitudes toward homosexuality and gay marriage. Additionally, television shows over the last several decades have increasingly portrayed these issues in more normative and favorable ways. The data would seem to support the notion that these efforts have been consequential for many Americans.

For example, according to the General Social Survey (GSS), in 1988 only 11 percent of Americans agreed with the statement: “Homosexuals should have the right to marry one another.” By 2008, the percentage of Americans agreeing that homosexuals should have the right to marry one another had more than tripled to 38 percent. Further, the GSS has asked the following question for almost four decades: “What about sexual relations between two adults of the same sex?” In 1973, 76 percent of Americans responded that sexual relations between two adults of the same sex was wrong. In 2008, the percentage of Americans feeling this way had dropped to 53 percent.

Second, it is also possible that religion has had something to do with the apparent generation gap when it comes to the issue of support for same-sex marriage. Most American denominations and church teachings do not condone the practice of homosexuality, and most certainly do not support gay marriage. However, we also know from decades of survey research that the young tend to be less religious than the elderly. Research consistently confirms that the elderly are much more likely than the young to attend religious services and report that religion is important in their lives. Simply put, senior citizens exhibit higher levels of religiosity than Millennials. It stands to reason, therefore, that since the elderly are more religious, they are less likely than the young to favor same-sex marriage. However, should we not also expect Millennials and seniors to differ likewise on other questions regarding homosexuals? As demonstrated earlier, Millennials and seniors hold rather similar views on a number of questions regarding homosexuality.

We also know from the research literature that consistent differences exist between people based on their particular religious tradition or affiliation. For example, Evangelicals tend to be more conservative than mainline Protestants and other religious groups on a host of moral and political issues. Consequently, I examined views on gay marriage among Evangelicals and found a far different picture when comparing Millennials to senior citizens. According to the 2010 GSS, only 38 percent of Evangelical Millennials support gay marriage. Among all other Millennials in the GSS, 72 percent support gay marriage. Turning to Evangelical seniors, we find that only 25 percent support gay marriage, compared to 40 percent among all other seniors. In sum, young Evangelicals are more likely to support same-sex marriage than Evangelical seniors (38 percent and 25 percent respectively), but the difference is nothing close to the 2-to-1 split found in the general population.

There is indeed a significant gap in support of same-sex marriage when one compares all Millennials to all senior citizens. However, when one looks at the views of Evangelicals toward same-sex marriage—a group estimated to be 100 million strong—a considerably different picture emerges. Being an Evangelical Protestant significantly lowers the chance one will agree with gay marriage in either age range, and brings the 18-to-29 age group down to a level of support similar to all others in the 65-and-over age range. Perhaps Evangelical churches are doing a better job combating the considerable cultural influences in support of same-sex marriage.

It is unwarranted and irresponsible to interpret opposition to same-sex marriage as a proxy for being anti-gay. There is no empirical evidence to suggest that senior citizens are anti-gay.

Byron R. Johnson is Distinguished Professor of the Social Sciences at Baylor University and author of More God, Less Crime: Why Faith Matters and How It Could Matter More (2011).

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But beyond the very real protections it offers specific people of faith, religious freedom plays another vital role in the life of a free society, a role that helps make possible the liberty of all its members, believers and non-believers alike. Religious freedom is not just a particular type of freedom; it is a critical source of freedom itself.

To understand why this is the case, consider what freedom requires. Most obvious is a healthy dose of negative liberty—the view that we should have the ability to live our lives as far as possible without undue interference by our government or our fellow citizens. This is what individual rights, limited government, and the rule of law aim to provide. They create a zone in which we can be authors of our own lives without being involuntarily subject to the overbearing power of others trying to force us to live or act or think in certain ways.

Of course, religious freedom is often a significant element in this negative understanding of liberty. It protects my right to practice my faith and share its good news with you, just as it protects your right also to embrace that faith, or another, or none at all. Religious freedom’s early champions played a key role in laying the foundations for constitutional democracy, and it is the first of the “shall nots” directed at the government in our Bill of Rights.

At the same time, however, religious freedom’s importance in understandings of negative liberty is not always so secure. As just one of many individual rights, it can get lost in the shuffle and minimized by those more concerned with other ones, as when the secular media, always protective of freedom of the press, show scant concern for freedom of religion issues. And some understandings of negative liberty, focused as they are on external threats to individual freedom, are more concerned with how religious practices might oppress or discriminate against individuals, often making them more sympathetic to religious regulation than religious freedom.

Fortunately, negative liberty is not the whole story. Individual rights and limits on government are necessary to freedom but not sufficient. There is more to freedom than just non-interference by others. If we are to be authors of our own lives, then we each need the ability to decide what kind of person we want to be and what kind of life we want to lead. The mere absence of external obstacles will not make us free unless we also have the internal capacity to be genuinely self-directing persons. This is why even great defenders of negative liberty such as John Locke also argue that an individual’s ability to act on that liberty is “grounded on his having reason.” This is why we don’t consider infants or those with severe mental disabilities to be fully free, or why we often refer to someone with a serious drug or alcohol addiction as being “enslaved” by it.

This internal dimension of freedom certainly requires the ability to reason, but there is more going on as well. It also requires what Charles Taylor calls “strong evaluation.” By this he means the ability to exercise self-control by subjecting our desires and goals to qualitative judgments. Reason alone can calculate how best to achieve our goals, but strong evaluation is how we determine what goals are worth pursuing in the first place. Doing so, however, requires moral standards upon which to base this evaluation—judgments about what is higher or lower, noble or base, laudable or despicable. Moral judgments of this kind are an inescapable part of freedom. Without them we cannot truly live our lives from the inside.

Taylor’s work reveals how human freedom is inseparable from our nature as moral agents. As human beings, we can’t do without some orientation to the good. It may not always be the right orientation, or we may not always live up to its demands, but it is necessary to living as free persons. I can’t decide what kind of person I want to be or what kind of life I want to lead without a moral language that makes sense of such decisions.

Here is where the internal capacity for freedom connects back to the external society around us. If we need moral standards to exercise the kind of self-evaluation, -control, and -direction that freedom requires, where do these standards come from? They don’t appear out of thin air. And while some may claim to live according to nobody’s standards but their own, this is actually impossible, for even this claim itself depends on moral ideas about autonomy and authenticity in the surrounding culture to make any sense. While we can make moral meanings our own, interpreting them, shaping them, combining them in different and sometimes even incoherent ways, we can’t invent them entirely from scratch in our own minds. Instead, we draw them from the particular cultures, communities, and traditions around us. These sources furnish the moral materials we need to construct authentic lives for ourselves as free persons.

The broadest, deepest, richest, and most important sources of these moral materials, both historically and today, are religious traditions. Even in the contemporary United States, religion remains the most significant source of moral reflection and orientation to the good that our society has. And here is the crucial thing: while the religiously devout certainly draw on this source, so too do others. Those with loose religious connections or no connections at all still participate in a social ethos rich in religious meanings. Even avowed atheists inherit a culture deeply informed by religious sources of morality, sources they often wrestle with in defining their own moral orientations. Religion’s abundant tide of moral ideas—on the nature of personhood, the just society, the good life, duties toward others, and so on—spills over for all to draw upon.

In order to perform this critical role in helping to furnish the moral materials necessary for freedom, religion certainly needs believers, but it also needs institutions where those believers are formed in the faith and put into contact with the wider culture. Churches, synagogues, and mosques; schools and universities; hospitals and clinics; newspapers, magazines, and websites; soup kitchens, adoption agencies, and drug treatment centers; youth camps, prayer groups, scripture classes, and social clubs: These are what cultivate and pass down the moral meanings embedded in religious traditions.

This, then, is why religious freedom is so important to freedom itself, including the freedom of those with little or no religious affiliation: It creates and protects a space in which religious voices can flourish, both individual and institutional. When civil society has a robust and vibrant religious dimension—when believers and their organizations can live their faith, worship, evangelize, and develop and communicate their own distinctive moral traditions—the public square is enriched. It becomes the site of religious traditions in moral dialogue with each other and the culture at large, a dialogue that helps create and sustain the moral language that citizens of all kinds require to construct freely meaningful lives for themselves.

So threats to religious liberty do not just harm individual believers. In seeking to corral, marginalize, and privatize religion, they endanger the health of religious institutions more generally, threatening to cut off a critically important source of moral reflection and orientation. This enfeebles rather than enlivens the moral content of our culture, a content that we all, believers and non-believers alike, rely upon to exercise our freedom.

David Carroll Cochran teaches politics and directs the Archbishop Kucera Center for Catholic Intellectual and Spiritual Life at Loras College in Dubuque, Iowa.

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