I am delighted indeed to be with today for this Red Mass, celebrating the work of lawyers, judges, politicians, and paralegals. I would like my first word to you today to be one of praise and encouragement: you belong to a noble profession! Not long ago, one of my cousins, who is a lawyer, and I were lamenting the fact that both of our professions have come, to a degree, under a cloud in recent years. To be sure, there have been bad lawyers and politicians, as there have been bad priests, but both priesthood and the practice of law remain, in themselves, beautiful and dignified endeavors.
Thomas Aquinas helps us to see the ground for this nobility. For Thomas, all positive law—everything from traffic regulations to the tax code—is rooted in the natural law, which is to say the fundamental precepts of the moral life. Thomas names them as follows: foster life, seek friendship, deepen the bonds of love, and respect human dignity. This is why, for Thomas as for Aristotle, all legislation is, finally, the legislation of morality. The contemporary concern about separating these two dimensions would have struck both philosophers as anomalous. Traffic laws are designed to protect life and hence have a moral purpose; a fair tax code is meant to instantiate justice and hence has a moral purpose.
And the moral law is grounded, furthermore, in the eternal law, which is identical to the mind and purpose of God. This is why decent and well-formulated positive laws, including the simplest regulations, are reflective of the divine mind. It is fascinating to note that Martin Luther King, in his famous Letter from the Birmingham City Jail, cited just this insight of Thomas Aquinas to argue that the unjust Jim Crow Laws of his native South were not simply morally wrong but an affront to God. This is also why Lincoln could characterize the freeing of the slaves as congruent with God’s providence. So don’t lose sight of this nobility of the practice of the legal and political arts as you go about your daily work.
Secondly, I want you to see that law, rightly formulated, is always in service of freedom. But to appreciate this, we have to distinguish between a more modern and a more Biblical sense of the term. On the modern reading, liberty is the capacity to hover above two or more options and to make a decision purely on one’s own, without any internal or external compulsion. It is freedom from alien constraint so as to allow freedom for self-expression. But for the Biblical writers, freedom is not this sort of self-creating indifferentism; rather, it is a disciplining of desire to as to make the achievement of the good first possible and then effortless. Examples of this abound: learning to speak a language fluently; learning how to play a musical instrument creatively and with abandon; learning how to swing a golf club well.
On the first interpretation, law is a necessary evil at best. We will accept legal constraint grudgingly, acknowledging that it is better than the alternative. But in a perfect world, we would prefer that our liberty remain unrestricted. On the second reading, however, the law is what instructs us in excellence and what makes real joy possible. One becomes a freer player of golf the more one manages to internalize the laws of the game; one becomes increasingly rangy and free in the articulation of English the more one adapts to the laws of syntax, grammar, correct pronunciation, etc. I propose to you that the image of David dancing with reckless abandon before the Ark of the Covenant doesn’t make a lick of sense on the modern interpretation of freedom but that it is eminently sensible on the Biblical construal. Though it strikes the modern reader as anomalous, the psalmist can say, with utter conviction, “Lord, how I love your law; how I meditate upon it day and night.” Most moderns tend to see law as protective rather than directive, if I can put it that way. Political institutions and legal arrangements are designed to protect us against the assaults of others. But on a classical and more Biblical reading, law also has a directive function. It is meant to teach us what to desire and how to achieve excellence. What is against the law ought not to be construed simply as the arbitrarily forbidden, but rather as something inimical to human flourishing. The law, accordingly, is teaching us the form of the good life.
Next, I would like to propose something for the consideration of those who practice the properly political art within our American context. In the perhaps overly familiar formulation from the prologue to the Declaration of Independence, Thomas Jefferson writes: “We hold these truths to be self-evident that all men are created equal and are endowed by their Creator with certain inalienable rights.” The words are so well known that we tend not to realize how strange and counter-intuitive they are. No major political philosopher of the ancient world would have held fundamental equality as self-evident, just the contrary. They knew that we human beings are dramatically unequal in beauty, intelligence, courage, virtue, and in point of fact, they took this inequality as axiomatic in the political meditations. Hence, Plato felt that the well-ordered society rests upon the natural hierarchy that obtains among guardians, auxiliaries, and artisans; Aristotle thought that only a privileged elite of intelligent, propertied males was capable of participating in the political order. For him, it was taken for granted that the vast majority of people were destined to remain in the private sphere of the household.
So what precisely is the ground for the extravagant claim that the equality of all people is self-evident? Jefferson gives away the secret in the use of the verb that probably slides unnoticed through our minds: “created.” Though we are indeed radically unequal in practically every category of description, we remain equally children of the one God. Take the fact of creation out of the philosophical framework, and Jefferson’s axiom evanesces and with it government grounded in universal equality. And if I might press the matter, what is the justification for Jefferson’s assertion that we are all endowed with inalienable rights? Again, no classical political philosopher would have accepted this. Aristotle, Plato, Cicero and their colleagues would have said that certain elites, due to their unique endowments of intellectual skill or moral virtue, have societal privileges and are worthy of respect and protection. Though their underlying assumptions were far more vile than those of the classical thinkers, the avatars of the totalitarianisms of the twentieth century would have held to the same principle. Jefferson couldn’t be clearer: “they are endowed by their Creator” with these rights. They come, not from the consensus of the elite, not as a gift of the government, not as a concomitant of heroic achievement, but from God as a grace. Take God out of the calculus, and a government, grounded in the respect for the rights of all, loses its foundation.
Last fall, for the first time in its history, Harvard University, which had been established for religious purposes and named for a minister of the Gospel, admitted a freshman class in which atheists and agnostics outnumber professed Christians and Jews. I suppose we shouldn’t be too surprised that non-believers have come to outnumber believers among the rising cohort of the American aristocracy. For the whole of their lives, these young people have been immersed in the corrosive acids of relativism, scientism, and materialism. They have listened to atheists, both old and new, who have convinced them that the idea of God is a holdover from the Bronze Age, that religion has been refuted by the physical sciences, that religious believers are naïve at best and hypocritical at worst. That this descent into non-belief is bad for them personally goes without saying. Though they have benefitted from every advantage that money can afford, they have been largely denied what the human heart most longs for: contact with the transcendent, with the good, true, and beautiful in their properly unconditioned form. Convinced that God is an illusion, they have turned, at the prompting of both the high and the popular culture, to the false gods of wealth, pleasure, power, and honor. But this has led, as every spiritual teacher through the ages would have predicted, to deep unhappiness and patterns of addiction. Precisely because we are wired for God, anything other than God will leave us feeling unsatisfied, and in our frustration, we will tend to return obsessively to those limited goods that can never answer the longing of the heart. Does anyone deny that there are armies of people in our society who have fallen into this trap?
But for our purposes today, I am especially interested in the deleterious effects of ideological secularism on our public life. Once the transcendent reference has been lost, law loses its dignity, for it is no longer grounded in a firm moral foundation. Untethered from an ethical and spiritual project, it becomes but a vehicle for the expression of personal desire and inclination. Unmoored from God, it no longer serves freedom in the authentic sense, but freedom in its most radical libertarian expression. If you doubt me on this score, take a good long look at the United States Supreme Court ruling in the matter of Casey v. Planned Parenthood in 1992. Adjudicating an abortion related case, the justices ruled that “it belongs to the nature of liberty to determine the meaning of life, of existence, and of the universe.” This is not freedom tied to moral truth, but rather freedom determining moral truth according to the personal whim of the agent.
This has, quite obviously, opened the door to the legalization of acts that more morally informed generations would have considered ethically repugnant: same-sex marriage, unlimited access to abortion, assisted suicide, etc. But there is an even more profound danger that follows from the systematic elimination of God from our civil discourse: the tyranny of the strong. When positive law is removed from its nesting relationship with the natural law and the eternal law, it becomes a weapon in the hands of those who can commandeer power within a society, whether through intimidation, military force, or the manipulation of majority opinion. When Pontius Pilate threatened Jesus with a raw display of his authority, the Lord responded, “You would have no power over me unless it had been given to you from above.” History has demonstrated, over and again, that when rulers forget that their legal authority comes from God, equality and human rights are lost in short order.
The Bible is filled with the language and imagery of the law: Torah, commandment, covenant, justification, etc. It knows that human law at its best participates in the lawfulness of God and hence is in service of love and justice. The New Testament culminates with a vision of the New Jerusalem coming down from heaven. The climax of the Scriptural revelation is, in short, a political image, a picture of a rightly ordered city. It is fascinating to note that in the New Jerusalem there is no temple. This is not because religion has been eliminated from that lively place, but rather because the city itself has become a Temple, every activity in it dedicated to the praise of God.
May this great image spur you on and inspire you, as you labor in the fields of law and politics. You practice a noble art. Dedicate it to God.