West and Fineman are guilty of some overly broad generalizations about the inadequacies of home-schooling, and sloppy inferences from what can happen to what should. There is little evidence that home-schooled children are subjected to widespread abuse or neglect, and some evidence that home-schooled children perform as well or better than publicly educated children by a number of measures of assessment. Yet, on the grounds that abuse can happen and occasionally does in the homeschooling environment, Fineman, for example, draws the astonishingly strong conclusion that “public schooling should be universal and mandatory.”

This conclusion rests on the faulty assumption—widely shared amongst liberal theorists of education—that the state is in some way a privileged player in the question of children’s education. According to this view, the state should educate children, and others who claim a right to do so should be subject to special scrutiny or meet a special burden of proof.

One can see how such an assumption might make sense. If children are to be primarily educated into citizenship, then it might seem entirely natural for the state to have the primary responsibility for doing so. And if children are primarily to be educated for autonomy, then removing children from the religiously, morally, and culturally homogeneous environment of the home might be essential. Finally, if children are to be educated with a view to their best interests, and those interests are understood as in tension with the interests of their parents, then again, the state will seem to be the default educator of children.

But are these the ends of children’s education? And should state schooling be the default position against which others are judged? The two questions are, as we have just seen, linked, and they must be addressed together.

Moreover, these questions need to be addressed against the background of what we might call the ontology of children and the family. Is the family a mere aggregate of individuals—spouses, and children—held together, perhaps by common or overlapping interests, but ultimately independent, in their interests and their being, from one another? Such a picture seems implicated by those who pit children’s interests against the interests of their parents; but it can also seem lurking in the naked assertion of “parents’ rights” as a conclusive justification for the right to homeschool.

A more adequate picture emerges from a more accurate account of marriage as a comprehensive sharing of lives that extends not just through those immaterial aspects of the spouses’ lives, such as intellect, will, character, and emotion, but penetrates down to the bodily being of the spouses in the act of sexual intercourse. That act of intercourse is, by its nature, ordered to the biological function of reproduction. Thus, children who are born of marriage so understood are the fruit of that parental union, and so themselves in a strong sense new parts of that union. The unity and multiplicity that characterizes the lives of spouses who have become one flesh is thus extended to include the lives of children born (or, I believe, adopted) of that union.

On this latter view, children are not property of their parents, for the family is a society of mutual service, and is not for the good of parents alone. But neither are children independent agents, existing only in association with their parents but ontologically apart. The good of the children is now a part of the good of their parents as parents. Thus parental care of children, before they have fully separated from their parents, is continuous with parents’ care for themselves, and their concern for the common good within the family is, as Germain Grisez puts it, a concern for “the child’s good considered insofar as it also perfects the parent precisely as parent.”

This indicates a key reason why objections to homeschooling cannot be met with a straightforward assertion of “parents’ rights,” anymore than the rejection of homeschooling can be predicated on a bald assertion of “children’s rights.” Both assertions, unless significantly qualified, adhere to the mistaken aggregate view of the family discussed above.

How, then, should the child’s good, which also is the perfection of their parents, be understood?

Children’s education is primarily about their fulfillment, but that fulfillment is and can only be rooted in an orientation towards a life of service to genuine human goods, including the goods of others and service to God. The particular form of life within which each child is called to perform these services is the child’s vocation; the task of education—its primary end—is to enable children to recognize, accept, and pursue that vocation.

This task cannot be accomplished without a host of subsidiary ends being met. Children must be instructed into the moral and religious life, and this must include sexual education. As a part of this education, children must be taught how to distinguish true from false claims, and genuine from illusory goods. This part of a good education is itself bound to be deeply countercultural in the consumeristic and erotically charged world in which we live. Further, children will not understand or make adequate use of the gifts they have been given unless they are allowed and encouraged to discover and cultivate those gifts; consequently, an adequate education will be attentive to the much of the traditional curriculum, such as reading, writing, and arithmetic, the study of literature, history and the social sciences. At the same time, education should also provide exposure to nonacademic domains within which children might have gifts, such as music and sport. Children must also learn what it is to act in communion with others, and what it is to possess the virtue of solidarity. Finally, because children are, and will grow up to be, members of a state, to the authorities of which they are rightly subject, children must learn what respect is due those authorities, and how they may be responsible citizens of their state.

When these genuine educational interests of children are violated by their parents, as when parents neglect their educational responsibilities, or positively abuse their children, this cannot be construed as in the interests of the parents. Rather, parents fail themselves as parents just insofar as they fail their children. To frame failures of education in terms of conflicts of rights or interests entirely misconstrues the proper relationship between parents and children.

This possibility of failure is real. Since serious failures of this sort have the potential to radically damage a child’s capacity to lead an upright and flourishing life, the state must take an interest in ensuring that children are not seriously harmed in their education. Still, there is, I believe, a straightforward argument to be made that parents, rather than the state, have the default position in judgments about who should educate children and how they should do it.

The foundation of that argument returns, again, to the very nature of the family: just as spouses take on a radical commitment to each other’s good when they marry, that good becoming “common” to the union, so they take on a radical commitment to the good of their children, that good too becoming part of the family’s common good before it can reasonably be thought of as part of the good of any other social union. The good of the family, that is to say, is first relative to the goods of other societies, including the state. But education of children, like love and care for those children, is essential to that common good; the responsibility, and thus the right, for that education, rests first with parents.

Such considerations are furthered by noting that the ends of children’s education, as identified above, are, in a sense, formal. Each requires further specification in order to generate adequate content for an educational program. There is widespread disagreement about the nature of children’s sexual education, about the meaning to be attributed to solidarity and cooperation, and about the nature of human flourishing. Who, then, is to provide that content? The mission of parents to provide for their children’s good cannot be accomplished unless they are charged also with the responsibility of bringing their own understanding of these ends to bear on the formation of their children.

Moreover, a child’s developing recognition of his or her vocation—which is the ultimate end of children’s education—is not simply a matter of recognizing the goodness of this or that way of life, for there are many such good ways of life. Additionally, the child must recognize the fittingness of some particular way of life for him or her. The particular way of life to which this child is called is not the same as the life to which that child is called, and the particular shape this a child’s obligations, opportunities, and destiny will take are, in many ways, unique to him or her.

Parents are in a unique position to help children through the years of their formation, in recognizing what they are called to. There are dangers here, of course, of parental overreaching and domination, but such dangers are to be combated by a deeper awareness of parental responsibility, not a mistaken judgment that it is really the state’s responsibility for providing, and assisting in interpreting, the moral materials out of which a child’s education is structured.

Such considerations do not provide an argument against state assistance in children’s education, or even an argument against the existence of state-funded public schools. But they do suggest, I think, a rather strong conclusion: that the option of home-schooling should be the prima facie starting point for parental deliberations about their children’s education. Many parents will, in the course of their deliberations, realize that they are best positioned to pursue, with their children, the ends of education in the home. Others will conscientiously judge that others, in one or other of a variety of possible ways, must be brought on board to assist with the task. But, as the starting point for deliberation in this area, homeschooling, and homeschoolers, should be given considerably more deference, in theory and practice, than recent educational theory suggests.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His latest book, co-authored with Robert P. George, is Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on the editorial board of Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Financial relationships raise acute moral issues that suddenly appear to be at the heart of the problem. Why should burdensome obligations come with a duty to repay? Is it good to be in debt?

This isn’t a new story. In the early 1930s, the world went through a period of debt-deflation, in which the compulsion to repay forced down prices and increased the real level of debt. Today, we face a milder version of the same phenomenon as banks cut back lending to rebuild their capitalization. The resulting credit difficulties create downward pressure on prices and make for higher and less sustainable debt levels.

The problem is severe. Deflation produces radical anti-capitalism and a demand for a cancellation of debt. Revulsion against the market economy often takes the form of a specific condemnation of debt and debt instruments.

The Saudi cleric Grand Mufti Abdelaziz Al al-Sheikh made the case that the cause of the crisis is interest on debt, and that the sharia principle of risk participation would eliminate the problem. This is a very old answer. The Old Testament famously recommended a cancellation of debt every forty-nine years in a “jubilee.” The medieval church attacked usury. Such arguments are not built on simple obscurantism. Both the medieval church and Islam distinguish between debt that is exploitative, in which individuals are tied in debt servitude, and the relationship that arises out of a sharing of entrepreneurial risk. This tradition invites us to think about how debt today may inhibit free choice and the free development of the human personality.

These critics, ancient and modern, see debt as leading to a fundamental moral flaw. Today debt is much more prominent than it was in medieval Europe. Consumers in advanced industrial countries (and in particular the United States) rely on debt in order to buy. Treasury Secretary Paulson complained that the credit crunch was “making it more expensive for families to finance everyday purchases.” But dependence on debt polarizes societies. Bailout proposals run into opposition from those who are not so highly indebted and see an overall solution as a subsidy for the improvident.

One interpretation of modernity is that we borrow from one another on an increasingly grand scale for a reason, because we are convinced that our utility schedule is more important than someone else’s. If I see a beautiful piece of jewelry or a bright new car in a shop, I am convinced that it should be mine and that it can be more usefully employed in my possession than in that of someone else. In that way greed feeds on a kind of pride or self-regard. This problematical character of debt is captured in an ambiguous phrase of the Lord’s Prayer that refers not only to spiritual offense but to actual debt and was often in the past translated as “forgive us our debts.”

The meltdown of capitalism produced a big blame game both in the 1930s, when industrial capitalism broke down, and today, when it is financially driven capitalism that has gone awry. Today the collapse is widely thought to be the responsibility of poor regulators and monetary policy makers, or unscrupulous mortgage originators, or greedy bankers. Popular commentators like to go back to stereotypes from earlier eras, such as the figure of Gordon Gekko in Oliver Stone’s movie Wall Street who memorably proclaimed that “greed is good.”

The attributions of blame do not contemplate why a little bit of greed can produce such bad effects. Greed works as a doctrine of management because it is endlessly replicated in everyday behavior, by neighbors who borrow because they want to match other people’s consumption patterns, or buy bigger houses out of a competitive spirit. Wall Street moved prices by means of a “thundering herd,” but it is not the only locus of greed. We might equally look to popular culture, to game shows, or to shopping behavior. In November 2008, the same instincts that drove financial markets produced the post-Thanksgiving shopping consumption-intoxicated herd which trampled a store clerk to death in a Long Island Wal-Mart.

Solutions to the crisis include a simplification of finance, a return to lower levels of debt, and a reduction of flows across long distances. Some natural law traditions point in a very radical direction and demand regular cancellations of debt like the “jubilee.” But how can any of this be achieved?

A less radically intrusive approach would end the incentives that created powerful motives for households and corporations to increase their debt. In particular, the tax deductibility of mortgage-interest payments led to an excessive level of household debt; and tax deductions for interest led to high levels of corporate leverage. Some countries have already experimented with ending or reducing the levels of permissible mortgage-interest deduction.

Debt reduction is not only a good way of avoiding the constant repetition of the kind of disaster that emerging markets went through in the early 1980s and the late 1990s, and the whole world has experienced after 2007. It is also an example of the way in which the application of some natural law principles might lead to a healthier economy.


Harold James is Professor of History and Public Affairs at Princeton University. He is a Senior Fellow of the Witherspoon Institute, where he is also the Director of the Program in Ethics, Culture, and Economic Development. His most recent book is The Creation and Destruction of Value. He sits on the editorial board of Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Ramadan wrote What I Believe as “a work of clarification.” In it, he emphasizes that his goal is to fashion a distinctively “Western” expression of Islam that does not require Muslims to choose between their national identities and their religious one. According to Ramadan, a person can be both fully Muslim and fully French, British, or German; these multiple identities shift and blend depending on the situation we face.

Ramadan’s intellectual agenda reflects his own unconventional upbringing: his maternal grandfather was Hassan al-Banna, the founder of the Muslim Brotherhood, the radical group that championed the establishment of an Islamic state in Egypt and which launched the modern era of Islamist politics. Ramadan’s father, Said, was one of al-Banna’s senior deputies, and after al-Banna’s death, he went into exile with his family in Geneva. There, he committed his life to preserving and disseminating al-Banna’s legacy. The first of Said Ramadan’s children born in Europe was Tariq. Caught between the Islamist cauldron of Egypt and cosmopolitan Geneva, Tariq grew up parsing his multiple and seemingly competing identities. As he writes, “I am Swiss by nationality, Egyptian by memory, Muslim by religion, European by culture, [and] universalist by principle.”

After a secular education at the University of Fribourg and religious training at Al-Azhar University in Cairo (the global center of Sunni learning), Ramadan made a name for himself  in the nineties as an expert on European Islam. It was a prescient concern. By that time, it was clear that the latest waves of immigrants—mainly Muslims from North Africa, Turkey, and south Asia, who had come to Europe to jumpstart manufacturing industries left crippled by the war—were not integrating properly. Despite having lived in Europe for decades and even having raised a new generation there, Europe’s immigrant Muslims were steeped in social, economic, and religious discontent. The discontent was exacerbated by widespread unemployment, low rates of education, and a seeming unwillingness to engage with the culture of their new countries. Most disturbingly, the malaise encouraged some young Muslims to experiment with rigid, literalist interpretations of their faith—expressions of Islam that promoted the use of Islamic law, sanctioned honor killings, and even condoned terrorism in the name of religion.

This powderkeg has prompted deep reflection among white Europeans and the European Muslims who live among them: Is Islam fundamentally opposed to European values? How can governments integrate groups unwilling to desegregate themselves? Is Europe a secular or religious continent? These represent the signal questions facing Europe today; and for much of the past fifteen years, Tariq Ramadan has been at the center of the debate.

Ramadan’s fame owes not only to his timely academic interests. He has also attracted considerable controversy. His connections to the Muslim Brotherhood have earned him deep suspicion. Meanwhile, in a 2004 book the French journalist Caroline Fourest chronicled examples of Ramadan’s alleged “double-speak”: instances of Ramadan modifying, even contradicting himself before Muslim and non-Muslim audiences, preaching a liberal message of integration, at the same time urging Muslims to resist European culture. Among his most notorious statements came during a 2003 debate with current French president Nicholas Sarkozy, in which Ramadan called for a “moratorium” on stoning, refusing to support an outright ban.

Despite the rancorous debate surrounding Ramadan’s true beliefs it is worth trying, at least for a moment, to separate the ideas from the man and ask whether Ramadan offers a workable solution to Europe’s “Muslim problem.” Fundamentally, Ramadan’s project focuses on integration. He wants to see Europe’s Muslim communities become full participants in their adoptive cultures, such that “Muslim” and “European” are regarded as complementary identities. Islamic and European values rest on a common bedrock of moral teachings, he argues, grounded in the pursuit of “justice, solidarity, and human dignity.” Acknowledging these shared principles could contribute to several goals: ending the tug-of-war many Muslims sense between their Islamic and European identities reconciling native Europeans with the immigrants who live among them; and building a multi-cultural society where difference flourishes among common civic principles.

Establishing common ground is key if Islam is to become a true interlocutor in the European conversation. To that end, Ramadan urges Muslims to distinguish between the cultural trappings of their faith, which tend to separate them from their new countries, and the essence of their faith, which has the potential to transcend cultures and continents. Many of the most troubling practices in Europe’s Muslim communities—such as stoning or genital mutilation—are “un-Islamic” in Ramadan’s view. They represent vestiges of Algerian, Egyptian, or Pakistani culture that immigrants have failed to jettison as they have settled in their new lands. So long as these groups continue to huddle in ethnic ghettos, resisting pressure to join the mainstream, they will cling to these practices.

Ramadan’s solution is to develop a new “Western Islam”—a radical “reconstruction” of the faith that upholds core beliefs shared by all Muslims, but which also embraces important European values, such as freedom of religion and respect for women. If history furnishes any clues, Ramadan’s “Western Islam” could become a reality one day. Over the centuries, Islam has proven remarkably durable and dynamic, capable of spreading among diverse cultures and across far-flung continents. From the first hundred years, when Muslim armies carved out an empire stretching from Portugal to China, to the fourteenth century, when Sufi missionaries began preaching deep in southeast Asia, to our modern day, when mosques rise around Detroit, Paris, and Rome, Islam has shown itself adept at inhabiting new cultures as it maintains its strong sense of self. While the situation in Europe may appear grim at the moment, there is ample precedent throughout history of Islam’s ability to adapt—even if it often entailed conquest.

On balance, Tariq Ramadan presents an attractive solution for Europe’s “Muslim problem.” Europe’s Muslim communities are not leaving anytime soon, so the present gridlock between them and the European mainstream must come to an end one way or another. There are far worse outcomes than what Ramadan proposes. Yet What I Believe suffers from a few key weaknesses.

First and foremost, for a work of clarification, What I Believe does little to dispel the most trenchant criticisms leveled at Ramadan: his alleged sympathies toward the Muslim Brotherhood and instances of double-speak. He dismisses them offhand, writing, “I will not waste my time here trying to defend myself.” While Ramadan understandably may not want to spend the entire book answering attacks, criticisms leveled against him are deep and detailed, and warrant more than the brief retorts we read.

Second, Ramadan goes to great lengths to portray European Muslims as peaceable, upstanding citizens. This is clearly a corrective to the Islamophobia that festers among certain sectors of the European public. For the vast majority of Muslims, Ramadan is undoubtedly right: Many immigrants have made the transition from Algeria, Turkey, or Pakistan with remarkable ease and now lead successful, stable lives in Europe. But Ramadan seems unwilling to concede that one of the biggest problem facing Europe’s Muslims may not be integration per se, but rather, the temptations toward fundamentalism and violence. Ramadan deals with these explicitly only once in a chapter on “Challenges,” where he commits a paragraph to describing them. Individuals such as Umar Farouk Abdulmutallab—the Christmas-Day bomber radicalized during his time at University College London—may be few in number, but they are the fruit of a broader culture that, at its worst, sanctions extremism, and at best, finds it difficult to denounce or defuse it.

The book’s third shortcoming concerns identity politics. Throughout, Ramadan argues that Muslims must be given a sense of belonging in European culture if they are ever truly to integrate. But as he reads the accounts narrated in textbooks, university syllabi, and popular culture, he finds a biased version of European history that excludes the achievements of Muslims. If Muslims do appear in the story, it is often as the ominous “other” lurking in the background as Europe undertakes its grand march from “Plato to NATO.”

For Ramadan, this traditional plotline is not only misleading, but also dangerous. It dismisses the major contributions of Islam to European civilization, especially the role of Muslim philosophers in transmitting classical learning to the medieval West. By denying these contributions, he argues, modern-day European Muslims are made to feel like second-class citizens in a civilization their ancestors helped to  build, but for which they get no credit.

In principle, Ramadan is correct: without Muslim philosophers such as Avicenna or Averroes, there would have been neither medieval Scholasticism nor the Renaissance. These contributions are substantial, and cannot be underestimated. Yet at the same time, to portray Islam as a constitutive part of Europe, a distinctively European achievement, or a core aspect of European identity from the beginning, is itself a misleading brand of revisionist history. To be sure, Islam played a huge role in the formation of Europe, but primarily as Europe’s existential rival and occasional collaborator. Islam is part of Europe’s modern identity, but it need not justify its place today by rewriting the past. As religious observance declines across Europe and the continent loses touch with its Christian roots, now is precisely the moment to recover a sense of historical self, not dilute it further.

This was part of the message in Pope Benedict XVI’s controversial 2006 speech at the University of Regensburg, where he urged Europeans to recover their true cultural identity—an identity the Pope grounded in the twin legacies of Greek philosophy and Christian faith. For Ramadan, this approach is both reductionist and exclusive, for it essentializes a rich, textured history in order to protest the bugaboo of the multi-cultural present.

But Ramadan misses the point of Benedict’s speech, which in fact contains a kernel of wisdom that might be useful for Europe’s Muslims too. Over the centuries, Christianity has succeeded by translating the philosophical principles undergirding the faith into good public policy. It is no coincidence that secular ideologies such as universal human rights or economic subsidiarity took root in the Christian West; they represent political extensions of Christian ethics. Muslims need to consider the same principles that undergird their faith, and imagine how these principles can help them live as citizens in their new European environment. The currency of debate in Europe is not the Qur’an or the sayings of the Prophet, but the rational convictions enshrined therein. Islam has the intellectual resources in its past to excavate these principles; it just needs to relocate them.

Tariq Ramadan is an optimist, and in these times filled with apocalyptic predictions about “Londonistan” or the minarets of Notre Dame, it is refreshing to hear some good forecasts. Still, Ramadan’s optimism may also be his greatest weakness: In his eagerness to shrink the chasm between Europe and Islam, he seems to have lost sight of their fundamental and abiding differences. Thus, he succumbs to the temptations of flaccid ecumenism, which compels no one to reexamine his fundamental assumptions. Islam is not some exotic form of continental philosophy we can simply drop into the European equation and expect to balance effortlessly. Rather, it is a significantly different variable—and balancing this equation will take a lot more than liberal readings of the Qur’an mixed with a dose of Enlightenment thought. But the existence of a chasm between Europe and Islam does not necessarily entail the spread of bigotry or segregation. Neither group needs to whitewash its convictions or rewrite its past in order to live together. Islam has the power to enrich civil society in Europe—it can begin by identifying first principles it shares with the cultures around it.


Christian Sahner, a Rhodes Scholar, is presently a doctoral candidate in History at Princeton University. In May 2009, he worked with Tariq Ramadan on a symposium on religion and politics at the University of Oxford.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In a previous piece for Public Discourse, I responded to similar objections, typically but not always raised by Protestants of a Calvinistic bent, against the “Manhattan Declaration” and Robert P. George. Like the Catholic Griffiths, those critics think that sin renders the natural law problematic since human nature is vitiated as a moral or logical foundation. The always nuanced and brilliant Griffiths, however, requires an independent response.

Griffiths begins by arguing that, given sin, our desires are no longer properly harmonious, no longer configured and ordered, but open, “free to wander in an open range without limits.” As utterly open, we cannot say our desires are natural since they do not, by nature, desire anything in particular—we desire, yes, but we do not by nature desire this or that, here or there.

He argues that the particularity of desire—that I desire this but not that—is configured or trained in accidental fashion. Children have tastes formed by “local habit, custom, and discipline” and so are formed to delight in some things rather than others—but “none of these tastes is natural.” That certain foods are desired and others found disgusting is the result of custom, that certain music is praised while other forms disregarded comes about from instruction, and formation applies to each and every desire you or I might, or might not, have.

Griffiths claims his understanding would be objectionable to many “Thomistic philosophers,” but I fear he portrays these philosophers as hopelessly naive. In my earlier piece, I explained how Thomas Aquinas fully incorporated the reality of sin into his theology and still held that humans could follow right reason. Griffiths knows that Catholic theology and Thomistic philosophy accepts and gives place to human derangement in its anthropology and moral philosophy. Aquinas did, after all, know his Augustine, including Augustine’s anti-Pelagian works. Still Griffiths almost writes off Thomism on the issue of derangement. Why? I find his reason utterly surprising, and incorrect.

In parrying the (never explained) Thomistic objections to his account, Griffiths states that one of the intellectual currents of our times is one encouraging us to “discover who we are and to act accordingly” by a “gaze with the inward eye on our glassy essence and to respond to what we find there.” But, counters Griffiths, such a gaze provides only multiplicity, a “vast range of identities: of gender and sex and ethnicity, of trait and temperament and passion.” Rather than discovering our glassy essence, our true being, we discover ourselves as unfixed, as utterly open and in flux, capable of being formed in almost any direction, including (hopefully) in proper directions, but “there is no glassy essence to discover.”

This response to his Thomistic interlocutors is remarkable and mistaken. I always find something worthwhile in Griffiths’s writing and lecturing, but on this point he seems to have gravely misunderstood the Thomistic impulse and underestimated its cache of resources.

The notion of a glassy essence, of a mental substance to which we have privileged access through self-immediacy, is entirely foreign to Thomism. The “invention of the mind,” as Richard Rorty termed it, as a glassy and mirror-like self-presence is modern, not Thomistic, as I’ve argued elsewhere. Descartes may think we have such an essence, Locke may think we can access it immediately, and perhaps even Augustine agrees, as some think, but this is not Thomas.

John Finnis, a leading proponent of natural law philosophy, makes clear that one does not know human nature or the self by an immediate introspective look at our substance. He argues in Fundamentals of Ethics:

one proceeds by reflecting on one’s own wanting, deciding and acting; and this reflection must not be an attempt to peer inside oneself, or to catch oneself as it were in a mirror out of the corner of one’s eye: those empirical methods, based on the uncritical fancy that understanding is just a matter of opening one’s eyes (or other senses) and looking, yield nothing but illusions.

Finnis sounds much like the Jesuit thinker Bernard Lonergan. For Lonergan, author of the monumental work Insight, the notion that knowledge is somehow like taking a look is a “cognitional myth” responsible for a whole panoply of epistemological and metaphysical errors: “as merely seeing is not human knowing, so for the same reason merely hearing, merely smelling, merely touching, merely tasting may be parts … but they are not human knowing itself.” Consequently, since no human knowledge consists of taking a look pure and simple, neither is self-knowledge gained by looking inward at the self as if it were a glassy object to be gazed upon: “People are apt to think of knowing by imagining a man taking a look at something, and further, they are apt to think of consciousness by imagining themselves taking a look into themselves.” Both images are mistaken.

Lonergan, like Finnis and Aquinas, rejects the notion that knowledge is like looking, and thus rejects the notion that one can look inside and see a pure self. Aquinas’s account of knowledge is rooted in understanding, of the grasp of intelligibility, while sensation provides only phantasms, the intellectual matter, as it were, from which the intellect apprehends intelligibility and about which it judges. But Thomas never suggests that we know by gaping; rather, we know by abstracting or understanding intelligibility.

When it comes to self-knowledge, the Thomistic method does not introspect but rather infers, and does so based on the many objects of desire. As Lonergan describes the Thomistic method: “through objects we know the acts, through the acts we know the habits, through the habits we know the potencies, and through the potencies we know the essence of soul.” To know the soul, then, we do not examine the soul. This cannot be done, since we cannot look inward to a glassy essence with the eye of the mind. Instead we examine our intentions, that is, the intelligible objects of our desires.

Finnis agrees: “reflection on practical reasoning and human action … seeks to understand human capacities by understanding human acts and to understand those acts by understanding their object(ive)s.” The Thomist never looks at the soul to find some natural shape to its structure; the Thomist examines the intentions of the human being, the “why?” and “what for?” of action. A person does x. Why? Well, for the sake of y. He or she intended y and so chose x. This is the domain of intelligibility, of form.

Since the Thomist never intends to look inward and find a static, glimmering orb or glassy essence, the Thomist is quite unperturbed to learn that one might find, as Griffiths suggests, “a vast range of identities.” Turning inward, Griffiths complains, “we find only phantasms”—just so! Aquinas told us that sensation creates phantasms or sense images, not the form of the thing; Lonergan suggests that inward looking is a mythical action we cannot actually perform; Finnis suggested that the inner look yielded “nothing but illusions.” Griffiths has made a rather Thomistic point: looking for a glassy essence is a fantastic exercise in futility.

Since the Thomist never expected the glassy essence, we shouldn’t be surprised to discover that the Thomist also welcomes historical change, cultural difference, plural expressions of identity, open-ended desires, and the need to form habits into certain shapes. Not only was Thomas indebted to virtue ethics, and thus quite willing to embrace the moral necessity of habit, he was fully aware that particular desires are in flux, and also aware that the flux could be deranged and sinful. Of course our particular desires are in flux; how else would we distinguish natural desire from those we happen to have at any particular point in time?

Griffiths seems to think, if I read him correctly, that for Thomas natural desires are fixed, invariant, universal properties because they stem from a fixed, invariant, universal and observable glassy essence. If that were Thomas’s position, then noticing the empirically obvious reality that desires can be open-ended might pose some difficulty. But if desires are to be understood, then natural desires are not known by observing my many desires—nothing is understood merely by observation—but by grasping the intelligible intentions or object(ive)s of the acting person. The variability of particular desires defeats the naturalness of desire if and only if the variability somehow surpasses intelligibility, if the flux resists understanding.

But it doesn’t. Griffiths is entirely correct that we always seek a particular, that our “sexual, gastronomic, and intellectual appetites are unbounded in what they might desire” but always in the end fix on some particular. Sexual desires might in the end be particularized by marriage, or pornography, or masturbation, or rape. Gastronomic desires may very well fix on “horses and snails,” “citrus-tinged Pinot Gris” or “roast cat,” to use his examples. Intellectual appetites might turn to literacy and logic, or to entertainment and spectacle. Of course.

Yet each and every of these particular desires can be rendered intelligible by asking “why?” or “what for?” Why does one wish to eat a snail? Why does one wish to use pornography? Why does one wish to avoid Latin and watch a reality show instead? These questions make sense; it is not strange and confusing to position a particular desire within the standpoint of intentionality and ask what is being sought by the desire.

In the Summa Theologiae’s discussion of law, Aquinas suggests that inclination is the hint to understanding the natural law. As a substance, the human is inclined towards existence; as an animal, the human seeks children and their well-being; as rational, the human is inclined towards knowledge, friendship, and so on. There is very little reason to think this list is exhaustive, but it does demonstrate a pattern, namely, that particular desires can be investigated and rendered sensible by their finality, by their end or telos, by what they want.

Aquinas clearly distinguishes the particularity of sensible appetite from the generality of rational appetite. A sensible appetite is particular, it wants this car or that cake, and comes to be when evoked. That is, we desire the car or cake when we sense it, although we could expand such evocation to include cultural and historical catechesis without much of a problem—we desire the Pinot Gris or the roast cat only in response to cultural formation. Rational appetite, on the other hand, desires not this or that good but the total flourishing of the human being. Note: the human good is an order, a properly arranged nexus of various human goods necessary and conducive for human flourishing. One doesn’t observe this good like one can observe cars and cake; one understands this good by understanding our intentions, by grasping intelligently what we are after when we are after all those particular goods. An ordered life seeks basic human goods—naturally desirable goods—not because our static essence drives us to them, still less because we can look inside and intuit natural desires a, b, and c, but because we try and make sense of our lives, and subsequently can reflect and understand how we tried to make this sense.

Now, whether one can discover in these intentions a set list of basic human goods, as Finnis thinks, or discover a structured heuristic nexus of intentional goods, as Lonergan thinks, is a big and difficult question, and one that I will not take up here. My point is not to defend natural law theory of any particular sort, new or old, but simply to argue that Thomism is markedly more differentiated on natural desire than Griffiths portrays.


R. J. Snell is an associate professor of philosophy and director of the Philosophy Program at Eastern University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

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

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

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

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

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

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

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

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


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

Copyright 2010 the Witherspoon Institute. All rights reserved.

Though common, this charge of hypocrisy sheds little real light on the questions in relation to which it is invoked, for several reasons. First, it does nothing to help us determine the relative merits of the liberal and conservative positions with regard to the proper exercise of the judicial power. After all, the charge clearly cuts both ways. In regard to Citizens United, liberals have complained not only about conservative inconsistency on the matter of judicial activism, but also about the supposed activism of the decision itself. Thus conservatives might well ask these liberal critics: where was your hot indignation about judicial activism when the Court, as recently as nineteen months ago, issued its ruling in Boumediene v. Bush? In that case, the Court, to widespread liberal acclaim, reinterpreted key precedents and struck down Congressional enactments on the basis of a hitherto unknown right of alien enemy combatants to habeas corpus review. Liberals no less than conservatives, it seems, can be charged with a selective opposition to judicial activism.

Second, charges of inconsistency regarding judicial activism are often unhelpful because they routinely use the term too loosely—that is, without reference to the merits of the specific constitutional arguments in question. When the Court strikes down a law or overturns precedent, those who disagree with the ruling will generally complain of judicial activism. Yet it is agreed on all sides in American politics that it is sometimes perfectly appropriate for the Court to strike down laws or overturn precedents. After all, from the beginning of the American republic it has been understood that the exercise of judicial review is an inescapable part of the Court’s function, and judicial review is inseparable from the possibility of declaring unconstitutional laws void and erroneous precedents inoperative. If judicial activism is to have any useful meaning, then, it will have to be understood as the exercise of judicial review in a way that is not warranted by the Constitution. The purpose of judicial review, however, is to safeguard and enforce the law of the Constitution. Judicial activism, therefore, is best understood not as the striking down of laws or reversing of precedents—both of which may be required by the Court’s duty in a particular case—but as the substitution of the Court’s political, policy, or moral judgments for the requirements of the law and the Constitution. On this understanding, it is worth observing, the Court could engage in judicial activism even when upholding a law or precedent, if it does so contrary to the clear meaning of the Constitution.

This brings us, in the third place, to a deeper problem: loosely framed charges of judicial activism, flung selectively by both conservatives and liberals, tend to obscure the disturbing extent to which much of the modern Supreme Court’s jurisprudence is itself a product of and a continuing invitation to a problematic judicial activism in the precise sense noted above. That is, the intellectual framework that all the justices, left and right, have inherited, and within which they think they must work, arose from and invites the substitution of their moral and political convictions for the law of the Constitution.

This problem is evident in the Court’s opinion in the Citizens United case, whether or not one agrees with its ruling. In deciding the question before them, the majority had recourse not only to the Constitution, but also to a Court-created judicial doctrine known as “strict scrutiny.” Strict scrutiny is ordinarily applied to laws that (among other things) impose on what the Court regards as “fundamental rights”—such as, in Citizens United, the freedom of speech. The test reverses the usual presumption of constitutionality. That is, when strict scrutiny is invoked, the burden of proof is not on the litigant challenging the law to demonstrate its unconstitutionality, but on the government to justify its constitutional legitimacy. Despite weighting the scales against such laws, strict scrutiny further stipulates that they can be upheld if they serve a “compelling governmental interest” by the “least restrictive means.” In other words, a law may constitutionally intrude on a fundamental right, if it is necessary to serve some important objective and there is no other way to do so that is less of an intrusion.

Strict scrutiny, however, is itself a product of judicial activism understood as the substitution of the opinions of judges for the requirements of the Constitution. As Justice Felix Frankfurter—one of the Supreme Court’s great defenders of judicial restraint—pointed out when the elements of the strict scrutiny test first began to emerge in the mid-twentieth century, there is nothing in the Constitution on the basis of which an impartial reader could conclude that some kinds of laws are entitled to a presumption of constitutionality while others are not. There is, in fact, nothing in the Constitution to suggest that some governmental objectives are more “compelling” than others, or that some rights are more “fundamental” than others. Such categories were utterly unheard of in American constitutional jurisprudence during the nation’s first century and a half. They were unknown to Chief Justice Marshall, and even to zealous judicial defenders of rights in the early decades following the ratification of the Fourteenth Amendment. These concepts are not requirements of the Constitution but the inventions of judges seeking to guide the Court to outcomes they approved on non-constitutional grounds—namely, their own assessment of what would be good and just.

A product of judicial activism, strict scrutiny is also an invitation to ongoing judicial activism. Most obviously, its abandonment of the traditional presumption of constitutionality gives the Court much greater freedom to strike down laws that have been approved by majorities of the people’s representatives. Perhaps more important, by requiring the Court to ask questions to which the Constitution provides no answers, strict scrutiny calls judges to substitute their own convictions for those of legislators. What counts as a compelling governmental interest? The Constitution, again, is silent on this question. The answer is not a matter of constitutional law but of political philosophy. Some people think that the promotion of greater economic equality is a compelling governmental interest, while others do not. Some people think that the fostering of traditional sexual morality is a compelling governmental interest, which others would deny. Such disputes are subject to more or less plausible philosophic reasoning, but not to constitutionally conclusive reasoning. When a Court overturns a law based on arguments that are not constitutionally compelling, however, it has not vindicated the Constitution but simply decided to prefer what seems reasonable to it over what seemed reasonable to legislators. It has, in other words, engaged in judicial activism.

Nor is it the case, as some might contend, that the Court could find clear guidance on what constitutes a compelling governmental interest by looking not to its members’ convictions but to the dominant practices and values of contemporary society. The very fact that cases arise in which the parties contend over what is a compelling governmental interest shows that society is characterized as much by division as by agreement on such questions. And when the Court decides to side with one understanding over another without a constitutional reason to do so, it has again engaged in what can plausibly be called judicial activism.

None of this is necessarily to say that the Supreme Court erred in its decision in Citizens United. The case involved a law that regulated political speech. Accordingly, even dispensing with strict scrutiny, a Court could reasonably conclude that while such a law is entitled, like any other, to a presumption of constitutionality, that presumption is here overcome by the law’s infringement on a freedom expressly enshrined in the text of the Constitution. My point is that, even if Citizens United was correctly decided, the use of tests like strict scrutiny, now deeply entrenched in the Court’s jurisprudence, drive the Court into kinds of inquiries that almost inevitably make even the most sincere critics of judicial activism engage in it themselves.

Judicial activism is a problem of profound significance for the American republic. By relying on the opinions of judges instead of principles grounded in the constitution, it represents a denial of the rule of law that was the very purpose of the Constitution. More than that, because the concepts essential to modern judicial activism are so pliable, and because the composition of the Court changes so regularly, judicial activism turns out to be incompatible with the rule of law in any sense. The Court’s jurisprudence becomes instead a record of ad hoc approvals and disapprovals on the basis of which no clear predictions of future rulings is possible, a set of arbitrary judgments that is the opposite of the rule of law. If this very real and serious problem is to be addressed, our concerns about judicial activism will have to become more than just rhetorical weapons wielded when politically convenient. We will instead have to reconsider the role the Court has assumed for itself over the last half century or more.



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

Copyright 2010 the Witherspoon Institute. All Rights Reserved.

Heller itself is the root of the problem. In that case, Justice Scalia brought together a large quantity of historical information to support the argument that the Second Amendment (“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”) embodies an individual right not connected to military service to keep and bear arms. However, in a cogent dissent that also relied extensively on history, Justice Stevens concluded that the Amendment did not create any such individual right. While the historical record does not unambiguously point to one conclusion on such a complicated question, the Heller Court nonetheless aggressively declared a brand-new individual right.

Justice Scalia’s opinion received predictable criticism from liberals, but the most devastating critique of Heller came from the esteemed conservative federal jurist J. Harvie Wilkinson, III, of the United States Court of Appeals for the Fourth Circuit. In his trenchant analysis, “Of Guns, Abortions, and the Unraveling Rule of Law,” published in the Virginia Law Review, Wilkinson argues that Heller “represents a failure—the Court’s failure to adhere to a conservative judicial methodology in reaching its decision.”

In fact, the Court’s failure in Heller, says Wilkinson, is strikingly similar to its catastrophic decision in Roe v. Wade. Wilkinson identifies “four major shortcomings” in Heller: “an absence of a commitment to textualism; a willingness to embark on a complex endeavor that will require fine-tuning over many years of litigation; a failure to respect legislative judgments; and a rejection of the principles of federalism.” Wilkinson expects the incorporation of the Second Amendment with its Heller reading. And that extension is precisely the problem: “As courts get drawn father into the gun control thicket, they will be forced, as they were by Roe, to decide contentious questions without clear constitutional guidance.”

Even with all its flaws, the Heller decision currently applies only to the District of Columbia. That is because the Second Amendment has not—yet—been applied against the states. This process of applying the specific guarantees of the Bill of Rights, which originally were restrictions that operated against only the federal government, is known as “incorporation.”  Decades after the ratification of the fourteenth amendment in 1868, the Court began, without any textual or historical basis, the piecemeal application of various provisions of the Bill of Rights to the states through the due-process clause of that amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law”). The entire Bill of Rights is not incorporated (the Fifth Amendment’s indictment-by-grand-jury requirement, for instance, does not bind the states); we currently have what is referred to as a system of “selective incorporation.”

Incorporation represents one of the true revolutions in American politics and law. It has subverted the careful balance between federal and state power and dramatically increased the power of federal courts. It is, moreover, a judicially manufactured revolution in its entirety. With its highly dubious historical foundation, incorporation is a doctrine that originalists have rightly challenged for its absence of legitimacy even as they must live with its precedential force. Now, they are being seduced with a new theory in McDonald: the idea that incorporation of the Second Amendment should be through the privileges-or-immunities clause of the fourteenth amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

Historically, this clause was nullified in The Slaughter-House Cases (1873). All of the subsequent extra-textual judicial overreaching, whether through incorporation or the judicial invention of rights, has been through the due-process clause. In recent decades, however, scholars of the government-by-judiciary school have been attracted to a revival of this clause because of its vagueness. (Not only scholars: Justice Thomas, of all people, expressed interest in the clause’s resuscitation in a 1999 case.) For example, the most adroit advocate of judicial adventurism of his time, John Hart Ely, in his enormously influential book Democracy and Distrust (1980), concluded that “the most plausible interpretation of the Privileges or Immunities Clause is, as it must be, the one suggested by its language—that it was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.”

This reading provides a very capacious abode for the judge-as-policymaker ideal that is beloved of judicial supremacists but is, or used to be, anathema to conservatives. An incorporated Heller right would mean that every gun regulation enacted by state and local governments would potentially be subject to review by federal courts, which have no expertise or guidance in this area. The serious flaws identified by Wilkinson will lead to increasingly subjective and ad hoc judicial rulings by those who, in all other contexts, are the fiercest critics of that slipshod method of judging.

The interpretive doctrine of original understanding has reached a high level of sophistication and influence, especially in the opinions of Justices Scalia and Thomas. However, it is in danger of losing its principled foundation because its most celebrated practitioners are pursuing the nationalization of an individual right to bear arms on exceedingly thin constitutional authority. Wilkinson is justified in his yoking of Heller with Roe, and once the questionable determination reached in Heller applies to every gun regulation enacted at any level of government, it will be well-nigh impossible to tell the originalists from the make-it-up-as-you-go-along crowd on the Court.


Gregory J. Sullivan is a lawyer practicing in New Jersey. He has written for First Things and The Weekly Standard.

Copyright 2010 the Witherspoon Institute. All rights reserved.

More recently, Thomas Geoghegan argued in the New York Times that the filibuster is unconstitutional.  First, he says the framers of the Constitution were generally against supermajority requirements, and included just a few such requirements for special purposes in the Constitution; therefore the Senate filibuster, not specially authorized in the Constitution, is contrary to their intentions.  Second, Geoghegan notes the vice president’s power to cast a tie-breaking vote in the Senate, a power that is vitiated when the 60-vote requirement prevents a tie vote from ever happening.  And third, the Constitution requires only a bare majority as a quorum to do business, yet the filibuster requires the supporters of a major bill to muster 60 votes.  Thus the filibuster violates the Constitution.

These are less than convincing arguments.  Geoghegan downplays the provision in Article I, Section 5 of the Constitution that authorizes each house of Congress to “determine the Rules of its Proceedings.”  The Senate has chosen a set of rules that prize the power of senators as individuals to shape and to slow down debate in the chamber, while the House has chosen rules that streamline debate and advantage the majority party.  How can the Senate’s conformity with the letter of the Constitution be declared “unconstitutional”?

Klein keeps the focus on the alleged unfairness of minority power, and the impact on accountable and effective governing.  But Geoghegan’s argument has resonated more strongly with critics of Senate obstructionism, because the American people will always respond to an appeal to the Constitution—even a strained one unsupported by the text.  What Klein and Geoghegan have in common is a sense of outrage about the Republican Senate minority’s ability to traduce (in their view) the most fundamental principle of democracy, majority rule itself.

But is the filibuster anti-democratic?  Or is it, in purpose and effect, an aid to legislative deliberation, and in that sense a valuable contribution to democracy?  A good case can be made for the filibuster, when it is used prudently on the most important matters.

Before judging the value of the modern filibuster, consider its history and its present shape.  In contrast to the House of Representatives, where the duration and openness of floor debate on each bill are tightly controlled by the Rules Committee and the majority leadership, the Senate has always prized the freedom of action of the individual senators, to speak at length during debate and to turn the deliberations on a bill in new directions by way of amendments.  The only mechanism routinely used to control floor debate is the “unanimous consent agreement” (UCA), which limits the time each senator may speak and forecloses certain kinds of amendments.  But as its name indicates, each UCA must be accepted by every senator, any one of whom may say “no” and keep his options open.  Where there is no UCA, a filibuster remains a live possibility, and a single senator, having gained the floor (yes, think James Stewart in Mr. Smith Goes to Washington), can talk until either he or his colleagues give ground on the disputed legislation.

By the late nineteenth century, the use and abuse of the filibuster had become a famous and often controversial feature of Senate practice.  In 1917, the Senate adopted Rule XXII, instituting the system of “cloture” to end debate.  Now there were three ways that Senate debate could be brought to a conclusion: the UCA, cloture, or the exhaustion of any senators pursuing a filibuster.  Initially cloture required two-thirds of those senators present and voting.  In a 100-member Senate with 51 senators making a quorum, this could require as few as 34 senators, but when major legislation was on the floor, one could expect 90 or more senators to be present, requiring 60 or more to vote for cloture.

In the 1970s two changes took place in the cloture system.  First, Rule XXII was amended to require three-fifths of all serving senators, not merely all those present, thus setting the bar at 60 votes for cloture in every case (when all Senate seats are filled).  This is a target easier or harder to hit than the old one, depending on the circumstances—but probably easier when a truly significant bill is on the floor.  Second, under Democratic majority leader Mike Mansfield, a “multi-track” system for moving legislation was devised, so that if a bill was threatened with a filibuster it could be sidetracked, while other legislation proceeded to floor consideration.  Previously, with legislation on the Senate calendar, a filibuster stalled current business, producing a bottleneck until the filibuster was resolved.

Mansfield and his colleagues probably thought their multi-track innovation would render the filibuster a relic of bygone days, since it would no longer prevent the Senate from considering business on the floor.  Instead it unleashed a torrent of filibusters—or more precisely a torrent of threats, consisting of announcements of an intent to filibuster.  The threat did not need to be made good, because each such announcement came to be treated as triggering the necessity of a cloture vote.  This new political environment is the reason why we never actually see a Mr. Smith-style filibuster, and yet we are told that on bill after bill, a filibuster must be brought to an end by a 60-member cloture vote.  Multi-tracking is not the only cause of this ubiquity of the “ghost filibuster” (in Geoghegan’s phrase); sharper partisanship also makes a contribution, as the minority party feels less obligation to loosen its grip on obstructive power.  But multi-tracking is probably the sine qua non of the modern 60-vote threshold for getting major things done in the Senate.

On many pieces of major legislation, the sponsors or majority leadership will now presume the threat of a (never-to-be-performed) filibuster, and file for cloture at practically the same moment a bill is cleared for movement on the floor.  Then begins the “whipping” for votes not to reach the simple majority for passage, but to reach the super-majority of 60 votes just to control debate and make a vote on passage possible.  This preemptive cloture-seeking can inflate the numbers of so-called filibusters, leading to somewhat different statistics on the frequency of the threat, depending on who is counting and what measure is used.  Yet no one doubts there has been a sharp increase in recent decades in the employment of threatened filibusters and the need for cloture votes to bring the Senate to final votes on bills.  The majority could conceivably reduce these numbers by forcing senators to make good on the threats by “doing a Mr. Smith.”  But there is a powerful incentive to leave well enough alone, thanks to the fact that each party has had its turn in the minority on a regular basis.

But is all this minority power justified?  Geoghegan complains that “[f]orty-one senators from our 21 smallest states—just over 10 percent of our population—can block bills” in the Senate.  True enough: according to the latest Statistical Abstract of the United States, the smallest 21 states contain 11.2% of the nation’s people.  But if cloture were blocked by 41 senators from the largest 21 states, they would represent 77.4% of the nation’s population.  In terms of majority rule in the Senate, the cases are identical.

But the contending sides in a cloture battle are never so neatly distributed as in these hypotheticals.  If we turn instead to our actual partisan division, we find that the 59 Democratic senators represent 36 states and 74.9% of the population, while the 41 Republicans represent 27 states and 48.7% of the population.  (Numbers total more than 50 states and 100% because thirteen states have senators from both parties.)  Before we conclude that their strength entitles the Democrats to unilateral control of the debate on every bill, note that the Republicans represent more than half the states and just a little less than half the population.  These are sizable proportions to be considered, especially when taking up important legislation.

The goals of a minority can vary from blocking legislation altogether, to offering amendments constructively altering a bill’s shape, to merely having sufficient time on the floor to build a public case against the majority’s agenda.  When the majority cannot command (or cajole its way to) 60 votes, it must give ground to the minority and attempt to find the distance each side must travel to reach an accommodation.  This is the essence of deliberation, and it has the potential to be regularly conducive to better legislation, understood as laws acceptable to a near-consensus of the American people.  The more significant the legislation, the more desirable is such a deliberative process.

What would be lost with the elimination of the filibuster?  We saw a glimpse of the answer in the Christmas Eve vote on health-care reform in the Senate.  Senator Harry Reid, the majority leader, engineered the all-Democrats cloture vote to produce a tightly controlled debate on final passage of a bill that few senators could possibly have read, to which no senator had a realistic opportunity to offer meaningful amendments, and which was conducted in an appallingly short time allowing practically no true debate among senators by which they could persuade one another or communicate with the American people.  If Sen. Reid had set out to reproduce the worst features of debate in the House of Representatives on its worst days, he could not have done better.  Each house of Congress has its peculiar virtues and vices as a legislative assembly.  Deliberation and consensus-building are not the distinctive features of the House of Representatives.  And there is no reason to desire two such chambers with the same deficiencies in this regard.  Every proposal so far advanced to “reform” the filibuster promises exactly that outcome.

Republicanism does rest on majority rule.  But decent republicanism also honors minority views, and gives a hearing to those voices that lack the power of command but possess the potential to persuade.  When Scott Brown won in Massachusetts, he brought this decency back to the United States Senate.  If the Senate is to aspire to its self-awarded title as “the world’s greatest deliberative body,” it will welcome his arrival and leave its fusty old filibuster tradition firmly in place.


Matthew J. Franck is Professor and Chairman of Political Science at Radford University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

First, we must analyze what is occurring in Pakistan. Is Pakistan engaged in an internal war, or is it just having a particularly hard time maintaining law and order?  Since 2004, the Pakistani army has been fighting tens of thousands of insurgents with a loose but effective command structure, control of territory, and a plentiful stockpile of weapons. This situation easily meets the legal criteria for an internal war. The targets of the attacks are organized and  their activities are distinct from banditry, short-lived insurrections, and isolated terrorist activities.

With this internal war in mind, we can analyze whether the U.S.’s very presence in Pakistan is legal. Stemming from the United Nation’s Charter, international law contains a general prohibition on the use of force, except in cases of self-defense against an armed attack or by Security Council authorization. One might argue that the U.S. has breached this rule by sending military force abroad and engaging in an international conflict without the permission of the Security Council. But this misuses the term “international.”

The U.N. Charter’s use-of-force rules apply only to international wars—that is, conflicts between states, not just on foreign soil. The Charter does not require the authorization of the Security Council before engaging in an internal war—a conflict within but not between states. Rather, it is within any state’s sovereign rights to oppose revolutionaries in its own borders with military force if necessary. Furthermore, another state is free to assist in such an internal armed conflict so long as it does so with the host state’s consent. The assisting state need not obtain any other international entity’s permission since this conflict is not international—it is not between states.

Does the U.S. have Pakistan’s consent to help with this internal war? Most likely yes, although this high-level diplomacy is often hidden by political maneuvering. There is evidence of a secret deal whereby Pakistan publicly complains about U.S. attacks to avoid a backlash from segments of its population while secretly cooperating with U.S. activities in the region. Also, it is widely reported that the drones have operated from bases within Pakistan. The totality of the evidence indicates that the U.S. drone attacks in Pakistan constitute consensual participation between these states against non-state internal warring groups.

Yet even if the U.S. drones are in Pakistan legally, to assist with an internal war, the law of war still binds the host nation and its allies as they engage in the conflict. The law of war traditionally requires military force to be used in accord with the principles of distinction, necessity, and proportionality. In other words, the attacking party must target only combatants, have no reasonable, less lethal alternative, and seek a goal proportionate to the damage it expects to cause. For this analysis, let’s turn to a specific and unusually tragic example.

The date is June 23, 2009. A crowd in South Waziristan, Pakistan has gathered to mourn the deaths of people killed in U.S. drone attacks. Intelligence suggests that Baitullah Mehsud, the leader of the Taliban in Pakistan, is among the mourners, so after the funeral prayers, two circling drones fire at least three missiles into the crowd. Around 45 militants and perhaps as many as 41 civilians are killed, but Mehsud survives.

Did the June 23 attack respect the principle of distinction? It would be illegal to target non-combatants. But who is a combatant in an internal war? Usually, combatants are defined as those who wear a uniform, bear arms openly, and operate under a responsible command. Yet this classic concept breaks down in internal wars. Non-state insurrectionists almost never meet the classic combatant criteria. Thus in an internal war, the operative criterion is combat membership: is there sufficient evidence that a target plays a combat role in a warring group? If so, he or she can be legally targeted.

Available evidence clearly implicated Mehsud—the leader of the Taliban in Pakistan—as a member of a warring party against the de facto government of Pakistan. It seems probable that the drone operators aimed at the crowd with the intention of killing Mehsud but without intending the deaths of civilians (though presumably thinking them highly probable). So long as the civilian deaths were not intended and reasonably could not be avoided, the principle of distinction was respected.

Did the June 23 attack follow the principle of necessity? Even if a state’s participation in an armed conflict is legal, it should not kill combatants if there is a reasonable possibility of incapacitating or arresting them before they resume combat activities. In the case of the June 23 killing, there was at the time no effective control over South Waziristan and thus no reasonable possibility of apprehension. Moreover, Mehsud had been hunted for years and could easily disappear into the populace, only to direct further strikes and militant operations. The June 23 strike would have been the last opportunity to stop him before he directed further strikes. On this evidence, the attack was in accord with the principle of necessity.

Perhaps most controversially, was the June 23 attack proportionate? Although civilians can never be the objects of a military strike, some civilian deaths are inevitable in the successful execution of military operations. Thus, the law of war requires the attacking party to balance its objective with other damage inflicted according to a rule of reason. This decision must be made in good faith on the information available before the attack.

The proportionality analysis is dauntingly complex. It governs reasonably understood goals and not unforeseen effects. It involves many possible factors and unlike, apparently incomparable values such as the number of anticipated casualties, the target’s short- and long-term military importance, his location and surrounding, whether the means to destroy him exceed those necessary, and the feasibility of alternatives.

Since evidence is sparse, it is difficult to convincingly condemn the June 23 attack as disproportionate. Did the drone pilots know that the rest of the crowd was mostly militants? If the pilots thought them civilians, was the value of the target from a long-term perspective worth a high loss of civilian life? A good case can be made that it would have been proportionate to accept many dozens of civilian deaths to incapacitate or kill a leader like Mehsud.

On proportionality, reasonable minds will disagree. Some will recoil at accepting such a high loss of civilian life. But in the final analysis the June 23 attack and those like it should be judged legally proportionate. Not everything permissible will be pleasant, and some unpleasant things will be necessary. For a just warrior to prevail over his enemy, he will have to make difficult decisions that hinge not only on principle but also on prudence and the facts at hand.


Thomas Haine is a First Lieutenant in the U.S. Army on educational delay and a law student at Washington University School of Law in St. Louis.

Copyright 2010 the Witherspoon Institute. All rights reserved.

A professor of Jewish Philosophy at Jewish Theological Seminary, Mittleman is before all else a scholar, and one of the most Germanic sort: slow, methodical, and thorough. Like much of his other work, Hope in a Democratic Age: Philosophy, Religion, and Political Theory (OUP, 2009) is marked by a mentally taxing but productive tension between nuanced scholarly exegesis of key texts and the positive argument toward which the scholarship is, in principle, ordered.

Mittleman contends that hope, rightly understood, is a universal virtue that democratic societies should embrace and encourage, but also that hope is dangerous when wrongly understood. These fairly straightforward claims are central and controlling, but Mittleman develops them against the background of a scholarly history of the notion of hope in the West. He constructs this story by careful attention to the Bible and the writings of representative Christians, Jews, pagans, and modern secular thinkers.

The pagans were, at best, ambivalent about hope. Hope was good when it provided the energy needed to overcome moderate difficulties in certain situations. But it was not considered a virtue, that is, a durable, praiseworthy disposition (a habit) toward life as a whole. Hope was often viewed negatively, as an unreasonable passion that set its victim up for bitter disappointment. Life already had enough difficulty and bad luck—it would only make things worse to expect too much.

This pagan resignation contrasts sharply with the biblical outlook. As Mittleman shows (most illuminatingly in his reading of Paul and Aquinas), Jews and Christians consider hope a virtue. After all, as they tell the story, an infinitely benevolent and omnipotent God created the world good, providentially guides history and the lives of persons and communities, and has made irrevocable promises to those who trust in him. It is not only reasonable but imperative to manifest trust in God, desire to cooperate in his providential plan, and show proper appreciation of the essential goodness of reality and its possibilities by maintaining hope even in the face of grave difficulty. For Jews and Christians, life is properly pursued with energy, resilience, and daring—if such attitudes generally require ingrained hopefulness, how could such a disposition fail to constitute a virtue?

Mittleman does not hesitate to declare his commitment, as a practicing Jew, to the biblical worldview. He exhorts modern liberal societies to value hope as a virtue, and therefore to craft policies with an eye to protecting and stoking it. This view obviously lends support to the liberal democratic aim of increasing and maintaining a wide range of social, intellectual, and economic opportunities for all citizens. Without possibility there can be yearning, but not hope. But, Mittleman also argues, since hope involves the inclination of the appetite towards a good viewed as possible but at least somewhat difficult to attain, then attempts to create a world that does not require or reward struggle, daring, or initiative (Mittleman is plainly not an admirer of the so-called nanny-state) are misguided. Indeed, it would seem, if Mittleman is right about the value of hope, such policies indirectly insult being as such. They make it difficult to pay existence due homage by passionately responding to its value against the adversities that test and elicit the lover’s ardor.

Despite his enthusiasm, however, Mittleman is careful to nuance his argument, and these nuances provide the most stimulating and helpful elements of his book.

His most important point is that hope, although it necessarily regards the future, does not necessarily involve desire for liberation or even change. The liberationist attitude so characteristic of modernity (which, Mittleman is careful to say, is in some cases justified) is unjust to the good aspects of past and present. A man may take as the object of hope the maintenance or intensification of present goods or the retrieval of lost goods.

Mittleman also warns, channeling Eric Voegelin, against the dangerous modern tendency toward utopianism. Utopian thought assumes that the object of ultimate hope may be achieved in this world, primarily through the saving action of the state. There are many central human yearnings (most notably the transcendent yearnings which are the object of religion) which the state cannot satisfy, but this does not prevent the state from trying, with disastrous results. When the state shows itself incapable of satisfying such hopes, it attempts to trivialize and marginalize them.

Mittleman’s proposed corrective is for associations within civil society, especially religious associations, to insist that the hopes that define them are of vital importance to social health, and that there is no possible state-administered substitute for the social forms and disciplines by which they pursue these hopes.

Although Mittleman does not point this out, there is here a striking connection to ideas developed by Wendell Berry in his seminal 1971 essay “Discipline and Hope.” There Berry seeks the cause of decay in areas of American life as seemingly disparate as political discourse and the art of agriculture. He argues that Americans have learned to seek in mindless partisanship, jingoism, technocracy, and the gospel of free markets the political, cultural, and material flourishing that only hard personal and communal disciplines can provide. Thus, for instance, Americans have fallen into the indiscipline of sound-byte politics because they despair of achieving political health through the proper means of painstaking public deliberation. Because, at least in this case, means are not ultimately separable from ends, despair of political discipline amounts to despair of politics. It amounts, in fact, to the end of politics in the proper sense.

It follows that the key to healing society is not so much the negative task of discarding false hopes as the rekindling of humbler, more demanding, but ultimately more rewarding hopes. That thinkers as different in style and substance as Berry and Mittleman seem to converge on this interesting argument surely counts in its favor.

But putting aside the detailed political implications of this valuation of hope, we must ask a prior question. If, according to Mittleman’s own scholarship, only biblical cultures have sustained the notion that hope is a virtue, why would those who do not accept the biblical story accept Mittleman’s recommendations? Why should we expect a consensus about hope in a secular, pluralist democracy?

Mittleman’s response is to downplay the significance of explicit philosophy. He observes that even dogmatic materialists conduct themselves as though the universe were far more than matter in motion. They love, cherish, strive, and hope. For this reason, he believes, we should begin not with consensus about the correct worldview or religion, but about the undeniable value of certain goods, attitudes, and commitments. This common ground established, we can then begin asking what kinds of stories about the world make the best sense of our attitude toward reality. Mittleman argues that even secular thinkers (his main examples are Ernst Bloch, Immanuel Kant, and Hannah Arendt) cannot give an honest accounting for the central importance of hope in human life without invoking some notion, however sketchy, of the sacred. So at present, it seems, hope is as likely to inspire belief as belief is to inspire hope.

Intentionally or not, in justifying his high view of hope by appealing to universal principles of practical reason that have a mutually reinforcing relation to biblical revelation, Mittleman has made an idiosyncratic approach to a doctrine of natural law. This is unsurprising. In a democratic and pluralistic age, where public reason does not stand under religious authority, no serious discussion about ordering our common life can long avoid questions of natural law. Perhaps Mittleman is too deep in other projects to accept another load, but a scholarly history of natural law would make a worthy supplement to this insightful and engaging book.


Stefan McDaniel is a former assistant editor of First Things.

Copyright 2010 the Witherspoon Institute. All rights reserved.

All of this political fighting can be disconcerting to average citizens. Why, on an issue that is plainly so important, can’t our nation’s elected leaders check their politics at the door and work out an agreement that elicits broad-based support instead of war-room like campaigns to prevail over their opponents?

The answer is that the disagreement over what must be done to improve American health-care is profound and largely irreconcilable. This isn’t your usual, run-of-the-mill political fight. The two sides hold diametrically opposed views that simply do not easily allow for compromise. Moreover, the outcome of the battle will be highly consequential, not just for our system of financing and delivering health-care, but also for our economy and democratic processes. In short, the stakes are very, very high, and both sides know it.

Many people suppose that the heart of the disagreement is over whether or not to expand coverage to more people. It is, of course, a primary objective of the Democratic sponsors of the current initiative to ensure that every American, or nearly so, is enrolled in some kind of health insurance plan on a continuous basis.

But Republicans are not opposed to expanding coverage to the uninsured. In 2008, presidential candidate John McCain proposed a plan which would have provided to every American household a tax credit which could only be used to purchase a health insurance policy. It was, in a very real sense, a “universal coverage” plan in that it sought to ensure that every American would have the financial wherewithal, provided by the federal government, to acquire some level of health insurance protection. The issue, then, is not over expanding coverage to all.

No, the real sticking point between the two sides is over how to allocate resources in the health-care sector. Both sides agree that the status quo is unsustainable, largely because costs are rising much more rapidly than wages or governmental revenues. The crucial question is what to do about the problem. Put differently, the question health-care reform advocates must answer is this: what process will be put in place to bring about continual improvement in the productivity and quality of patient care? That might strike some as more of a technical question than one of fundamental importance.  But, in reality, it’s just another way of saying that resources are scarce and must be allocated in some fashion. The only way to slow rising costs without lowering the quality of care provided is to improve the efficiency of the interactions between doctors and hospitals and those they care for. The question before policymakers is what reforms are most likely to lead to better care at less cost.

The Obama administration believes a governmental process is the answer. There are a series of provisions in the House and Senate bills which try to use the leverage of Medicare payment policy to force doctors and hospitals to change how they practice medicine. For instance, there are penalties for hospitals that have too many of their patients readmitted for care, and for physicians who are outliers in terms of how many services they render for certain diagnoses.

Other reforms are introduced as pilot programs that might be expanded later. In addition, the Senate bill picks up on the idea pushed by the administration to set up an independent Medicare commission which would make ongoing recommendations for cost-cutting in the program through provider-payment reforms. Congress could not reject the commission’s proposals without substituting ideas that achieve similar levels of savings, but the commission couldn’t make any recommendations that alter any aspect of the program other than payment policies for providers of services.

Some of these reforms might actually work and marginally improve matters from the status quo. But would they fundamentally change Medicare, much less the rest of American health care? No, they wouldn’t.

The Congressional Budget Office (CBO) projects that relatively small savings will result from the Medicare commission idea, and even smaller amounts will be saved by the other reforms touted by the administration. In ten years’ time, even if all of the ideas were fully implemented, Medicare and the rest of American health-care would look and operate largely as it does today, which is to say as a fee-for-service insurance model that rewards volume and fragmentation, not integration and efficiency. Adding tens of millions of people to an unreformed system will only exacerbate rising costs, putting even more pressure on the federal budget as well as household incomes.

Proponents of a governmental process have an unbounded confidence in the ability of the federal government to centrally plan and control an extremely complex sector of the American economy. But there is nearly a half century of experience with the Medicare program indicating that this confidence is entirely misplaced.

There have been countless efforts over the years to measure quality and  set payments in the Medicare program accordingly to encourage patients to see the doctors and go to the hospitals that are the most efficient and provide the best care. Most of the ideas have been tested in demonstration programs, or floated as legislative initiatives. But virtually none of them have gone anywhere.

Why? The answer is simple: Politicians are incapable of building what amounts to a government-administered “preferred provider network.” They simply can’t pick one hospital over another, or one physician practice over another, because that implies that some physicians or hospitals in their districts are inferior. And that’s just not something an elected official ever wants to do.

So, instead, they prefer to hit spending targets with across-the-board payment-rate reductions which treat all licensed providers equally.Every hospital, doctor, and other service provider gets cut the same, without regard to any measure of how well or badly they treat patients. That’s been the history of the Medicare program, and, in fact, that’s how the current Congress plans to achieve most of the $500 billion in Medicare savings in the health-care bills.

But these kinds of arbitrary price controls are also very dangerous for the quality of American medicine. They drive out willing suppliers of services, after which the only way to balance supply and demand is with waiting lists and rationing of care. That’s why so many other countries have months-long waits for expensive care. They control costs by artificially holding down prices with government regulation. And they pay the price “off-budget” by making their citizens wait for care they would rather access much more quickly.

That’s the big danger of the health-care bills being drafted in Congress. They would put the federal government in the cost-control driver’s seat, and all experience indicates that will lead, in time, to arbitrary price setting and rationing.

There is an alternative to this kind of governmental process. It involves building a real marketplace, one where cost-conscious consumers choose between competing insurers and delivery systems based on price and quality. The government can and should play an important oversight role in such a reformed system. But the difficult organizational changes and innovations necessary to provide better care at lower cost would come from those delivering the services, not Congress, or the Department of Health and Human Services, or even an independent commission.

The new Medicare prescription drug benefit was constructed just this way when it was enacted in 2003. Beneficiaries get a fixed dollar entitlement that they can use to buy coverage from a number of different competing plans. The insurers understand that they have to keep costs down to attract price-sensitive enrollees. And the government has no role in setting premiums or drug prices.

And how is it working? Costs have come in forty percent below original expectations.

Opponents of a market-based reform argue that it is impossible to reconcile price-based allocation of health services with equity. But that is not true. In the Medicare drug program, low-income seniors get additional help to pay for their prescriptions through a special funding stream. And all indications are that poor seniors are getting what they need from the program.

The country faces a choice here. We can choose to rely entirely on the federal government to allocate resources in the health-care sector, or we can choose to let consumers and suppliers make decisions in a decentralized marketplace with the government providing oversight and enforcing consumer protections. There is an irreversible aspect to this decision, whenever it is made, which perhaps explains why it has been delayed so long in our political processes. Once we finally decide, definitively, to head down one of these paths, it will be very difficult to change course later and go the other way. Which is why all concerned are bringing to the current fight in Congress every resource they can muster to prevail.


James C. Capretta is a fellow at the Ethics and Public Policy Center.

Copyright 2010 the Witherspoon Institute. All rights reserved.

First, the Swiss population voted in favor of a ban on the construction of minarets. This was a bad day for religious freedom, and the vote seemed to stand in stark contrast toArticle 15 of the Federal Swiss Constitution, which protects religious freedom.

Next, instead of seizing the opportunity to advocate for human rights per se and for universal religious freedom, some key Muslim leaders lined up to complain about the West. The only element their complaints had in common was the absence of advocacy for religious freedom in their own countries. Granted, some of them gave a passing nod to “human rights,” but again and again their criticism of the Swiss ban was about how the Swiss and other western countries deal with their Muslim populations. That this ban sets a harmful precedent for all multi-faith populations, including the ones where they’re in the majority, seems to have escaped them.

Three Muslim leaders seem to be striving to outdo the Swiss population: Ekmeleddin Ihsanoglu, Secretary General of the Organization of the Islamic Conference (OIC), the OIC Ambassadorial Group, and Ali Gomaa, the Grand Mufti of Egypt who is the most senior official interpreter of Islamic law for the Egyptian government.

The response of Secretary General Ihsanoglu to the Swiss minaret ban vote was one of “disappointment” and “concern.” As a Muslim leader, he has good reason to be concerned. After all, verse 2:256 of the Quran makes an injunction against religious coercion. But where is Ihsanoglu’s “disappointment” and “concern” about countries with Muslim majorities ignoring the injunction of Quran verse 2:256 against religious coercion, by their intimidation, punishment, and death sentences to discourage apostasy?

To be fair, in his statement Ihsanoglu did mention the existence of “universal human rights.” But the conclusion he draws is that “the decision of the Swiss people stood to be interpreted as xenophobic, prejudiced, discriminative . . . and it would tarnish the reputation of the Swiss people as a tolerant and progressive society.” The broader implications of the Swiss minaret ban for religious freedom, the real reason this vote is so troubling and alarming, seem lost on (or perhaps just too uncomfortable for?) Ihsanoglu.

Earlier this month, the press release for Ihsanoglu’s Message on Human Rights Day found time to devote a whole paragraph to condemning Israel, but nowhere in the document does he include advocacy for religious freedom. He mentions “religious diversity” in passing, but strangely, even bizarrely, the OIC, a religious organization, does not seem to have an interest in religious freedom as a core component of human rights.

Ihsanoglu’s remarks about universal human rights reveal more about hesitation than about endorsement. In his Human Rights Day Message, Ihsanoglu stated, “I would also like to reiterate once more my call to all OIC Member States and to the international community at large as well to give full consideration to the developmental challenges which constitute serious obstacles in implementing the noble objectives of the Universal Declaration of Human Rights.” So, he does call for some internal house-cleaning, good, but his language of “developmental challenges” exudes obfuscation. And then: “noble objectives”? This seems to suggest that human rights are just nice-sounding ideas, but really not something anyone takes seriously, not something actually to strive for, concretely, not something for which violators need to be held accountable.

Next in line to compete with the Swiss population is the OIC Ambassadorial Group in Geneva which sent a letter to the Swiss government strongly condemning “the discriminatory decision to ban constructing minarets.” If the OIC Ambassadorial Group is now concerned about discriminatory decisions, when are they going to condemn and seek to eliminate violations of religious freedom by OIC member countries against Muslim dissenters, non-Muslim religious believers, and those of no faith?

In the letter, they explained that their concern was that “the decision was a manifest attack on an Islamic symbol which could only serve to spread hatred and intolerance towards Muslims in general and those living in Switzerland in particular.”

The press release about this letter explains that “the OIC Group has consistently pointed towards the xenophobic and Islamophobic trends in Western societies.” They themselves admit that their finger-pointing at Western countries has been “consistent.” And they continue in this vein, explaining that “the OIC Ambassadors further hope that sustained efforts would be made by the Swiss authorities in particular and western authorities in general, including the civil society, to fight the scourge of discrimination and xenophobia.”

The OIC Ambassadorial Group’s criticism of the Swiss minaret ban is narrow; they assert that “this ban also stands in sharp contradiction to Switzerland’s international human rights obligations concerning freedom of expression, conscience and religion.” Again they sidestep advocating for universal religious freedom and recognizing their own human rights obligations.

How can countering discrimination be meaningful if it is only the big-bad-West which is to blame? Without universal principles and a core shared concept of human dignity, including the right to religious freedom, efforts to counter religious discrimination lack foundation.

The next competitor who has entered this race to find the most counter-productive approach to building stability and human flourishing amid religious diversity is Egypt’s Grand Mufti Ali Gomaa.

Gomaa’s first criticism of the minaret ban vote is that he considers it “an attack on freedom of beliefs.”  Granted, he deserves some credit for supporting “freedom of beliefs.”  However, effectively countering discrimination such as the Swiss minaret ban has got to go beyond just “freedom of beliefs.” Religious freedom is more than just freedom to believe. Religious freedom, to be meaningful, includes freedom to enter and exit a religion or to choose not to believe; it includes freedom to worship communally, and freedom to engage in the public square as believers. The Grand Mufti had a grand opportunity to defend religious freedom, and yet his response was to sidestep. Perhaps Egypt’s own track record of respecting religious freedom on paper but then using bureaucratic hurdles to block Christians from renovating churches, (and denying Egyptian Bahais basic Egyptian identity cards, to note another example) gave Ali Gomaa pause.

It is important to note that in response to the Swiss minaret ban some Muslims in charge of local community-level groups and writing in newspapers called for calm and noted that poor treatment of minorities in many Muslim-majority communities makes criticism of the Swiss minaret ban difficult.

At the international level, however, credibility in advocacy for human rights, including religious freedom, is at stake for all parties: the Swiss, the OIC, and the Grand Mufti. If the Swiss vote is upheld, there is a danger that Switzerland will end up in the position many Muslim-majority countries are in—hypocritically demanding liberty for their citizens living as religious minorities in other countries while they restrict the rights of religious minorities at home. As for bodies such as Al-Azhar and the OIC, their own silence and obfuscation on religious freedom, starting in their own countries, undermines their credibility even before they open their mouths.

As for Ihsanoglu, the OIC Ambassadorial Group, and Ali Gomaa, if they want to exercise effective leadership, to provide a substantive challenge the Swiss minaret-ban vote, they first need to become credible advocates for religious freedom. They need to start at home to advocate and take steps to realize religious freedom on their own door steps. Short of this, their complaints against the Swiss carry about as much weight as individual snowflakes falling onto the Alps. In the end, their complaints are not just inconsequential, but are harmful, like adding fuel to a fire, because rather than countering the Swiss minaret-ban in principle, they endorse the Swiss population’s selective discrimination by exercising selective “rights” advocacy. Only with credibility established by a substantive, coherent, universal track record of advocating and enforcing religious freedom can the engagement of Muslim leaders credibly rebuff religious discrimination in Switzerland.


Jennifer S. Bryson is the director of the Witherspoon Institute’s Islam and Civil Society Project. She is a contributor to Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.

When considered a précis against the lack of theological imagination known as Pantheism, Ross Douthat’s piece in the New York Times (which he expands in an interview) is characteristically brilliant. Douthat’s actual film criticism, however, is somewhat overdrawn. To call Avatar a “long apologia for pantheism” is to give it too much credit. The scriptwriters, perhaps despite themselves, couldn’t help but allow some classical theism to seep in. When the film’s main character, Jake Sully, implores divine assistance, he does not pray to a tree. He prays, almost sacramentally, through a tree to the deity whom he addresses personally, not without the help, I should add, of a sort of communion of saints departed. Douthat explains (rightly) that Pantheism is a religion for people who wish to avoid an “Almighty who interferes in human affairs.” But, in response to said prayer, the film’s deity does indeed—contrary to the native wisdom of the Na’vi—interfere in human affairs.  Needless to say, Director James Cameron is no Andrei Tarkovsky, and “Eywa” (the native deity) is no Aslan – but fictional scenarios can be provided more theological leeway than Douthat permits.

While Douthat uses the movie to critique Pantheism, John Podhoretz uses it to critique a base brand of Hollywood anti-Americanism.  Avatar, claims Podhoretz, asks the audience to “root for the defeat of American soldiers.” Based on this perceived connection, Podhoretz names Avatar “among the dumbest films [he has] ever seen.” As a caricature of corporate greed, Avatar is, unfortunately, as bad as Podhoretz claims. But I’m not so sure about its depiction of the military. In fact, the scriptwriters seem to have gone to considerable trouble to distance the soldiers in the film from the U.S. military.  Colonel Miles Quaritch, played brilliantly by Stephen Lang, is not an enlisted U.S. soldier, but the head of a hired security force comprised of ex-soldiers. Furthermore, while the American army is notably (some would say notoriously) religious, God of any kind means nothing to Colonel Quaritch’s mercenaries.  When he refers to the deity of the natives, his soldiers scoff. There is only one theistic option in this movie, and Quaritch’s army is utterly against it.  This film depicts a military-for-hire that is blatantly irreligious, only then to hinge the plot upon one soldier and a pilot who resist their corrupted leadership.  Notably, Stephen Lang succeeded in depicting the full range of military behavior—from self-sacrificial heroism to an addiction to violence—last year in a staggering one-man off-Broadway show, Beyond Glory. Granted Avatar does not approach this level of complexity, but as a depiction of military life, Hollywood can get much worse.

Then there is Caleb Stegall, a Front Porch Conservative who has long been a gadfly to more prominent conservatives such as Richard John Neuhaus, a role he describes as “loyal opposition,” and which he advances by articulating localist, agrarian ideals. Stegall assumed this posture as editor of the satirical journal The New Pantagruel, and he has kept it up more recently by lobbing challenges at First Things from the Front Porch. In a post subtitled “Reviewing the Reviewers,” Stegall claims that conservative reactions to Avatar are a rehearsal of the debate sparked years ago by Rod Dreher’s book Crunchy Cons (a book Stegall defended at National Review). For Stegall, Avatar is (as it is in this article), “a prism through which one can read the motives, cares, and commitments of its decidedly political reviewers on the right.” Stegall challenges the conservative reviews of Ross Douthat and John Podhoretz, leveling critiques similar to my own. He then adds his own favorable perspective on the film, one also subject to review.

Stegall paints Avatar as Front Porch Republic: The Movie. He identifies themes in the film such as culture and membership, and links them with posts at the Porch. That it takes a quarter of a billion dollar blockbuster to best articulate small-town, localist ideals is, to say the least, odd—but not untrue. Stegall is absolutely right: The blue people do it better. Harmony with nature, respect for food sources, sensitivity to the earth, liturgical vitality, rites of passage, lifelong marriage commitments, horse whispering—all the key ingredients to a harmonious agrarian society. How could one not be attracted to the ideals so beautifully presented in this film? The problem is, Avatar is not describing how the world might be if Wendell Berry were president; it’s describing a world without a Fall.

It is odd that amidst the innumerable citations the reviewers have noticed in the unoriginal script of Avatar, there has been (to my knowledge) no mention of C.S. Lewis’ Space Trilogy, which ushered the Christian imagination into space long before the emergence of Star Wars or Star Trek. Lewis paints a picture of space—better termed the heavens—as an “empyrean ocean of radiance.” A dazzling variety of planets singing to their Creator, one of which—our own—is tempted by “The Bent One,” in turn losing this music to become “The Silent Planet.” When visitors from our Silent Planet visit planets that have not experienced a similar rebellion, the scenario is very much like the earthlings visiting Pandora in Avatar. Fallen humans, in comparison to the inhabitants of Lewis’ distant, unfallen planets, are inevitably corrupted. When further demented by “The Bent One,” they become hyper-Hegelian monsters. One professor describes his chilling ideal of an ideal future of pure Mind, which is far too close to modern reality:

We do not want the world any longer furred over with organic life… all sprouting and budding and breeding and decaying. We must get rid of it. By little and little of course. Slowly we learn how. Learn to make our brains live with less and less body: learn to build our bodies directly with chemicals, no longer have to stuff them full of dead brutes and weeds. Learn how to reproduce ourselves without copulation.

And yet, there is a resistance in Lewis’ Space Trilogy from those who believe in Maleldil, who, like Aslan, corresponds to the Christian God. Long before the indigenous Ewoks fought the mechanized Empire in Return of the Jedi, C.S. Lewis painted a picture of an organic, traditionally religious resistance to a tree-killing evil machine that looks much like the military/corporate alliance in Avatar. In fact, Avatar’s “unobtanium”—the element that justifies earth’s mission on Pandora—can perhaps be understood as a version of that fruit that one of Lewis’ characters discovers on the unfallen planet Perelandra: “For one draught of this on earth,” remarks Ransom, “wars would be fought and nations betrayed.” Indeed, one of the lessons of Lewis’ Space Trilogy is that the pleasures of unfallen worlds are impossible for a fallen race (humans) to handle. Seen not only through 3-D glasses, but through the lens of Lewis’ Space Trilogy, Avatar emerges not as a defense of Pantheism, an anti-American screed or as a vision of ideals realizable on this planet: Instead, it’s a depiction of Eden.

And this brings us back to Stegall, who is right to suggest, alongside Ann Marlowe, that conservatives have overlooked things of value in Avatar. But those things of value, a perfect fusion of inhabitants and habitation, are impossibly far from being real alternatives on the planet that we inhabit. When one sees Avatar with Lewisian eyes, Stegall’s brief article highlights a criticism that Postmodern Conservatives at First Things have made of Front Porchers: some of their ideals seem suited for a world without a Fall, if not the primordial one, at least one without the second Fall of the Enlightenment. This is not to say that such ideals should not be promoted. One primary appeal of the Front Porch Republic is that it uplifts such principles, hence increasing their appeal, and their probability for real market success.

These localist principles, however, are best realized (and admittedly diluted) not despite of, but within the democratic capitalist arrangement we’ve been bequeathed. Community Supported Agriculture (CSA), for example, succeeds not as an anarchic cog in the market system but as a more appealing alternative that competes with supermarket chains and—because CSA tastes better and costs less—prevails. Walkable urbanism need not be billed as a Molotov cocktail tossed angrily at suburbia, but as a more alluring alternative that, as one recent book has argued, can naturally evolve from sprawl in response to consumer demand. The ideals of the Front Porch Republic are essential to the rehabilitation of conservatism, but the real work is in transposing them into the key of reality.  Between the purest of such principles and modern life stands a somewhat formidable obstacle: “a cherubim and a flaming sword that turned every way to guard the way to the tree of life.”

Matthew J. Milliner is a doctoral candidate in art history at Princeton University. He blogs at millinerd.com.

Copyright 2010 the Witherspoon Institute. All rights reserved.

One might expect this group to value traditional marriage, oppose abortion and embryo-destructive research, and defend religious liberties strongly, and they do, and yet many in this group have reacted quite negatively to the document. The reaction intensified, at least in the blogosphere, after a New York Times Magazine piece on Robert P. George, one of the leading signers of the declaration.

Some of this is the usual antipathy towards Roman Catholicism, which remains severe enough to prompt even a signatory like Dr. Albert Mohler to feel the need to explain his association with the document. The main intellectual objection is precisely the one mentioned in the Times piece, namely, “that [George] puts too much faith in the power of reason, overlooking what Christians describe as original sin and what secular pessimists call history.” The notion that the natural law forgets sin and thus depreciates the necessity of Christ and the supremacy of Scripture is an old one, to be sure, and is a common objection raised against the ethics and theology of Thomas Aquinas by this same group of Protestants. For example, James White states that George’s position is “a direct refutation of the biblical view of the supremacy of divine revelation and the corruption of human reason through sin,” and Phil Johnson claims “the biblical truths of original sin and human depravity [pose] a fairly fundamental challenge to Robert George’s notion that society can be won to righteousness through human reason alone.” And these are among the more moderate objections. The influential Protestant apologist Francis Schaeffer spoke for many when he characterized Aquinas as believing “the will was fallen or corrupted but the intellect was not affected.”

Certainly Thomas held that the first principles of the natural law could not be erased from the human being (ST I-II 94. 6), and neither did sin fundamentally negate human nature, for if human nature were to be essentially changed by sin then our first parents were of a different species before and after the first sin. A nature cannot change essentially without changing the essence of a being, after all.

But only a wooden and uncharitable reading of Aquinas stops here, for Aquinas has a sophisticated view on the question. He holds that the prelapsarian human was endowed with the grace of original justice, a rectitude whereby reason is subject to God, the lower human powers subject to reason, and the body subject to the soul. Such a person would not sin because he or she is properly ordered; without concupiscence, the unfallen human would always follow the dictates of right reason. Original sin, among other consequences, deprives the human of this original justice, destroying the harmonious relation of human powers to each other and to God.

Since the will is for Aquinas a rational appetite, the will is directed to the good of the whole person rather than to some power or part of the person. While a particular appetite, say for food or sex, seeks only its particular satisfaction, the will integrates and directs all these competing desires into a whole, into a human act, which is why humans can, for the sake of their own and the common good, control their desires to consume too much food or fornicate with this or that person. Particular appetites are directed and placed in order by the rational appetite.

Given original sin, the rational appetite is inordinate and can act counter to right reason. We do disobey the divine mandate, we do allow lower appetites to dominate reason, and we do allow the goods of the body to triumph over the goods of the soul. Further, given original sin and the loss of human integrity and rectitude, we do suffer what Thomas calls the wound of ignorance, that is, we can voluntarily ignore truth and the desire for truth. We can, and do, act in cunning fashion, whereby reason is bent to devise new and clever evils in service to inordinate desire.

There is no cheery optimism in Aquinas with respect to reason. The human is disordered;, one might even say we suffer a totality of depravity since not a single human capacity or function remains in the state of original justice. Yes, humans are utterly messed up, but they are still human beings, and as human beings, as rational animals, they still possess the natural law, for to lose the natural law would be a loss of humanity, actually to become a beast. Not, that is, to act bestially—humans do so—but to be a beast. And this has not happened, since original sin does not change our essence—nor could it. The basic human goods remain the same basic human goods for Adam and for Hitler, and the flourishing of human persons qua persons has not changed. But sin does change our willingness to function as we ought, as we can all attest.

There is, then, no contradiction between the natural law and original sin, at least as understood by Thomas Aquinas. The “Manhattan Declaration,” therefore, remains the declaration of cosmopolis, for insofar as the declaration is reasonable it is reasonable for all, even us sinners.


R. J. Snell is Associate Professor of Philosophy and Director of the Philosophy Program at Eastern University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In response to the news that Abdulmutallab’s trail to Detroit seems to have gone through Yemen, Yemen’s Foreign Minister Abu Bakr al-Qirbi acknowledged the presence of al-Qaeda in Yemen and has already used this incident to try to secure more financial assistance for his country. Discussing counter-terrorism aid so far, Al-Qirbi complained, “I must say it is inadequate.” He went on to say, “We need more training, we have to expand our counter-terrorism units and provide them with equipment and transportation like helicopters.”

There is a striking disconnect between the information coming out about the young Nigerian terrorism suspect in custody now, Umar Farouk Abdulmutallab, and the nature of the Yemeni request. This disconnect also highlights a gaping hole in U.S. counter-terrorism efforts.

Information currently available about Abdulmutallab paints a picture of a young college student in London who adopted and sought to act on extremist ideas. While there is a role for military hardware in tracking down and eliminating violent extremists, it is unclear how adding helicopters in Yemen, or London for that matter, would stem the stream of young radicalized Muslims coming out of London and other areas.

Helicopters may intimidate, but they do not change hearts, minds, or wills at the deep level necessary for transformative change. Instead, a more pressing need in counterterrorism assistance is a focus on causative factors of the problem combined with long-term perseverance to counter these causative factors at the root level. Our cooperation with countries such as Yemen must be primarily at this root level.

No quantity of helicopters would be sufficient to stem the zeal of all the al-Qaeda enthusiasts in the world who have become starry-eyed in their obsession with al-Qaeda’s cosmic narratives of utopian global domination.

For those wondering how someone with the tremendous privilege of studying in London would abandon such an opportunity to pursue the goals of Islamist extremists, I recommend Ed Husain’s autobiographical account of his experience in London as a young Muslim. In The Islamist: Why I Joined Radical Islam in Britain, What I Saw Inside and Why I Left, Husain details his radicalization, Islamist activism, and the eventual opening of his heart and mind. He walks the reader through his youth in London and into the seductiveness of the Islamists’ claim to have solutions to all the problems of being a teenager, and of the world too.

Husain’s differentiation of various strands of Islamism, including accounts of infighting between various Islamist groups, is an important aspect of his book. He combines this with reflections on his own individual process of questioning, doubting, and ultimately turning away from the black-and-white, bellicose worldview of the Islamists. His account is a stark reminder that the Islamist movements are manifold, not a monolith, at both a macro and a micro level.

In this complexity lies opportunity, for in this complexity there are cracks and openings. In these cracks and openings are opportunities to begin turning hardened individuals away from radicalism, and to deter would-be adherents of these violent ideologies.

Granted, engaging this complex realm will not be easy. Our counterterrorism programs need to focus more on the view of the world as it appears looking out through the eyes of individuals such as Abdulmutallab and relatively less on the view of the ground from the air in far-off helicopters. There is a role for helicopters, but it is an ancillary role. The core of our approach must engage hearts, minds, and wills.

Opportunities to do so abound, if we seize them. For example, reach out to key audiences and teach critical thinking, so that youth can penetrate the simplistic narratives of extremists with questions. Place role models in the paths of youth—role models who can handle ambiguity and deal with disappointments. These role models don’t have to all be real people—characters in movies and other media attractive to the target audiences can contribute to this. Stop turning a blind eye to the censorship of progressive Muslim thinkers by dictators we support such as Egyptian President Hosni Mubarak. Media by progressive Muslims abound, but often languish in obscurity due to censorship and lack of access to major media markets. One way to help these already existing media get broader circulation and multiply their audiences is through translations.

UK Prime Minister Gordon Brown has called for a high-level meeting in London January 28 to discuss measures to counter radicalization in Yemen. This sounds good, though it is unclear what mechanisms exist to implement the long-range follow up which would be necessary for a substantive, astutely designed counter-radicalization effort in Yemen.

As for President Obama, he has not shown signs of taking ideological drivers of terrorism seriously. Who in the U.S. government is in charge of countering ideological support to terrorism? Having a smattering of offices interested in the topic scattered across lots of departments and agencies in the U.S. government is insufficient. President Obama needs to identify countering ideological support to terrorism as a top priority and assign this priority leadership, long-term commitment of resources, and authority to act.


Jennifer S. Bryson is the director of the Witherspoon Institute’s Islam and Civil Society Project. She is a contributor to Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.