True Liberty and Unjust Civil Laws

Emily -crucifix

Emily -crucifix

The dominant progressive view of human history is that of an evolution of liberty, with the current acme of that evolution in western democracies. This appears to be analogous to the development of Catholic doctrine noted by Bl. John Henry Newman. There is this difference. The evolution of liberty in the progressive view is a repudiation of the past. In contrast, the development of doctrine is the articulation of that which was implicit. Thereby, development is fully continuous, not a rupture, with the past.

Justice Kennedy’s majority opinion in Obergefell v. Hodges claims that the liberty of same-sex couples to marry is implicit in the fourteenth amendment, although this was not evident at the time of its adoption. Thus, it would appear that the evolution of this liberty, from the adoption of the fourteenth amendment in the 1860’s to the majority decision in Obergefell v. Hodges in 2015, is a development in the understanding of personal liberty.

The clearly contrary evidence is the nearly universal judgment of 19th century America that marriage is a contract between one man and one woman. The 2015 decision of the Supreme Court is a repudiation of the older, common judgment. Witness the case of Kim Davis.

Justice Kennedy’s view of liberty is that of evolution and not one of the development of the ideal of individual liberty. In contrast, the development of doctrine is fully in accord with the whole of revelation both in faith and morals. Development is never contrary to nature or to the faith as previously held.

The Catholic View of Liberty

The Catholic view of liberty is that by nature man is free. Neither his mind nor his will can be coerced. It is only his body, which is subject to external force. If this were not fundamentally true, the Catholic Faith would be nonsense.

Yet, due to original sin, both the intellect and the will are weakened. This leads to personal and societal imperfection in both thought and deed. Consequently, both in the life of the individual and in society, nothing is perfect.

In society, there is no overall progress toward perfection, toward a heaven on earth. Every human life is a brand new drama of the struggle between good and evil, a new adventure in liberty.

Practical and Historical Expectations

“Thou knowest in the state of innocency Adam fell, and what should poor Jack Falstaff do in the days of villany?” (Henry IV). Original sin colors what we should anticipate in the life of the individual. However, it also affects what we should anticipate of all social groups and of what is embodied in civil law. We cannot look to government or to civil law as a reliable guide to what is good. We should expect some civil laws to be unjust.

Some civil laws have not only violated the nature and dignity of humans, they have been inimical to the Church to the point of persecution. Whether we look at Roman times, the history of England and its American colonies or of missionary lands, individuals have suffered martyrdom under civil law.

It is common today to read the first amendment as an ideal of religious freedom. That is reading history backwards, attributing our thoughts to our ancestors.

The history of the English Colonies in America is one of sectarian religious strife and persecution along sectarian lines. At one time or another nine of the thirteen colonies had established churches. In this context of competing sects, it would be impractical for the federating colonies to establish one church.

The status of religion and its exercise was a hot potato to be thrown to the individual colonies now becoming individual states of a federal union. By default, the federal union had to be neutral to the establishment of religion and the free exercise thereof (See The Right to Be Wrong by Kevin Seamus Hasson).

Personal Conduct Vis a vis Unjust Laws

No one may cooperate in an injustice even if sanctioned by civil law. However, one may endure the injustice of such law, if prudent.

In the case of an elected official, such as Kim Davis, who judged the issuing of marriage licenses to same-sex couples was positive cooperation in evil, there are several conscientious options. One was to resign under protest. Another, she could anticipate being impeached. Another, she could propose an accommodation which would relieve her of cooperation. Each of these is, to some extent, the endurance by her of the injustice. The endurance of injustice is the ultimate solution.

In clarifying his statement that he would not vote for a Muslim candidate for president, Ben Carson stated that a president must subordinate his religious beliefs, whatever they may be, to the Constitution. In other words, a president cannot conscientiously object to what he judges to be an unjust law.

Flash back to an election such as that of 1840. Ben Carson is saying that the new president, assuming office in 1841, should positively uphold slavery as sanctioned by the Constitution. He should not recognize the sanctioning of slavery by the Constitution as an unjust law, unjust in light of his religion and unjust in light of human nature. The new president should subordinate his conscience to the Constitution and not do all that he prudently could, as president, to void the injustice of slavery in practice and in law.

Presumably at that time, the president could do almost nothing. However, a conscientious president would at least not zealously promote slavery. Yet today, no one blinks an eye when Ben Carson claims an office holder must subordinate his conscience to the Constitution.

The Civil Solution

The solution advocated by Hasson is for civil law to incorporate the greatest tolerance of conscientious objection. This is the sincerest respect which civil law can show to human liberty.

The Revolutionary Solution

At Mass in Havana, Pope Francis said, “Service is never ideological, for we do not serve ideas, we serve people.” We see ourselves as servants of others and stewards of non-personal things. We should not be citizens coerced to obey unjust civil laws. The Pope is contrasting the fecundity of a life of love, fully in accord with the truth, with a life dedicated to a false political ideology.

St. Paul’s advice to Philemon rendered the injustice of Roman laws sanctioning slavery irrelevant. “I am sending him, that is my own heart, back to you. . . . but I did not want to do anything without your consent, so that the good you do might not be forced but voluntary. . . . that you might have him back however, no longer as a slave, but more than a slave, a brother, beloved especially to me, but even more so to you, as a man and in the Lord.” (Phlm 12, 14, 15)

In these revolutionary examples, not only is the injustice of civil law rendered superfluous, but acts of love strike at the root of the injustice.

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2 thoughts on “True Liberty and Unjust Civil Laws”

  1. It is refreshing to see acknowledged that the natural condition of humanity is libertarian though many in the Church rail against it as a political philosophy. It should be quite apparent as God made us with free will and gave us the responsibility to use it. Unfortunately, there are many in government, and not a few in the Church, who act in a manner that is nothing short of coercion at worst and pettifogging rule making at best.

  2. It would be a terrible mistake for Kim Davis to resign under protest, setting a disastrous precedent for our country. The Constitution states that there should be “no religious test” for determining whether one can hold a public office. Were Kim Davis forced to resign, that would send a clear signal that the U.S. has indeed adopted a religious test, that only those who do not hold to orthodox Christian doctrine as to the definition of marriage can be an elected official.

    Of course, we so routinely ignore the Constitution today in so many other ways (when’s the last time the U.S. declared war before sending our forces abroad? Not since WWII.) that maybe no one would notice yet another violation.

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