Letters to the Editor: March 2021
The Devil’s Counterpart
Gerard T. Mundy, in his review of The Devil Is Afraid of Me: The Life and Work of the World’s Most Famous Exorcist by Fr. Gabriele Amorth (Dec.), only briefly mentions an interesting and important point, namely, that Mary is the antagonist of the Devil.
In the Gospels, Christ is clearly identified as the counterpart and antagonist of the Devil. But even though Christ was equal to us in everything except sin, which is made clear by the story of the temptation in the desert (cf. Mt. 4:1-11; Lk. 4:1-13; Mk. 1:12-13), He did not meet demons on equal terms. For in His divinity, He is not really an adversary — that is, an adversary at eye level — of the Devil. The Fourth Lateran Council (1215) explicitly teaches the creatureliness of the Devil, that he was created good, became evil of himself, and refused subordination to God. Thus, the council rejects the dualism that sees God and evil as two principles with equal power and originality.
This clarifies the opposition of Mary and the Devil that appears again and again in piety and tradition: The Devil is a creature, and Christ has already overcome and defeated him. God is not the Devil’s counterpart, because God is above all. But in Mary, also a creature of God, the Devil meets his counterpart.
Bad Heilbrunn, Bavaria
I appreciated Gerard T. Mundy’s review of The Devil Is Afraid of Me, but I think Aleksandr Solzhenitsyn had a more complete picture of how we are infected by good and evil. He wrote, “The line separating good and evil passes not through states, nor between classes, nor between political parties either — but right through every human heart — and through all human hearts. This line shifts. Inside us, it oscillates with the years. And even within hearts overwhelmed by evil, one small bridgehead of good is retained. And even in the best of all hearts, there remains…an uprooted small corner of evil” (The Gulag Archipelago).
Solzhenitsyn’s definition prevents us from feeling too smug about our being good.
Bainbridge Island, Washington
GERARD T. MUNDY REPLIES:
Martin Grobauer’s letter elucidates the proper conception of the often confused and often over-simplified idea of the Devil’s standing before God. As Grobauer points out, contrary to simplistic and incorrect conceptions of a universe-wide struggle between equally powerful forces of good and evil, with good being represented by God and evil being represented by Satan, there is no equality between God and the Evil One. The Devil, who may be called both Chief Deluder and Chief of the Deluded, nonetheless persists in his delusion that he can overcome, and overtake, the power of God.
Regarding the Virgin Mother’s standing against the Devil: The Mother of God is uniquely fitted as an opposer of the Evil One. In the fully human Mary, one finds virtue chosen freely; in the Devil, one finds vice chosen freely. Thus, not only is Mary’s virtue the antithesis of Satan’s vice, she chose, freely, to accept the good, thereby rejecting all for which Satan stands.
To proceed any further, however, requires caution. For Mary is not, in fact, the equal counterpart to Satan. Mary, Mater Dei and Queen of Heaven, who physically and spiritually embodied the maximum goodness that can manifest in creatures, was immaculately conceived, ascended into Heaven fully, both body and soul, and held God in her womb. Mary is above, not on equal footing to, the Evil One. As Pius XII declared in Ad Caeli Reginam, Mary “attains a radiant eminence transcending that of any other creature” (no. 39). If Grobauer is searching for more equal counterparts to the Devil, these can be found in the angels and saints. The saints are especially detested by Satan, for, as fully human, they chose to battle against the ways of the world and their natural concupiscence and achieved virtuous living.
This idea provides a transition to the letter from David O’Sullivan, who cites a Solzhenitsyn quote that shows only partial congruity with Thomas Aquinas. For Thomas, man’s natural light of goodness is never totally extinguished, but man’s cultivation of his soul can obfuscate that light or allow its fuller illumination. For Thomas, it is the case that man, because of his fallen nature, has a natural tendency to sin, which is action against the dictates of the good. To reach his proper end, man must choose to battle this tendency. The tendency itself, however, does not denote a man’s submission to it; rather, the tendency turns into a man’s attribute when he chooses to submit to it.
Contra Solzhenitsyn, Thomas argues that this tendency to sin is not evil itself. For Thomas, evil is the privation of good. In Aristotelian fashion, Thomas argues that man must choose to reject actions that etch his soul in a manner contrary to goodness. Thus, proper cultivation of the soul results in greater illumination of the natural light of goodness, while improper cultivation, which entails submission to man’s tendency to sin, results in a vicious character. The vicious character is formed in the man who chooses actions that obfuscate the natural light. Ultimately, man chooses to be good or to be bad.
The Uniqueness of the Catholic Mind
You have given me the most wonderful Christmas present in your December issue: “What Makes the Catholic Mind Unique?” by Fr. David Vincent Meconi, S.J. I thought I’d never again read such an article. I feel like Simeon, happy to leave this world. (I am 83, with six months to live.) There is still faith in my United States!
I am from Boston and have been in Japan since 1965, when I helped found a monastery with seven other Poor Clares from Boston. Two have returned to the United States; five have died. I now live with 15 Japanese sisters.
Thank you for the NOR. I’ll ask Our Lady to send you new subscribers. Please ask her to send us new postulants!
Sr. Mary Pius, O.S.C.
Abbess, Monastery of St. Clare, Kiryu-shi, Gumma Ken
Fr. David Vincent Meconi has written a penetrating article reflecting on the uniqueness of the Catholic mind (Dec.). I affirm wholeheartedly what he argues are two essential features of that mind. First, the Church is the prolongation of the Incarnation, finding her concentration point in the sacramental realism par excellence of eucharistic presence. Second, the scandal of particularity in the Church’s ecclesiology is grounded in the “continuation of the theandric activity of Jesus Himself.” As Walter Cardinal Kasper puts it, “The Catholic solus Christus always includes the Church and means the totus Christus with head and members” (The Catholic Church: Nature, Reality and Mission, 2015). In this light, Fr. Meconi’s point is clear: “The Church is…a mystical person in whose authority the ancient creeds insist we must place our theological virtue of faith.”
I now want to issue two necessary clarifications. First, evangelical theologians such as Kevin Vanhoozer criticize the Catholic Church’s ecclesiology as a prolongation of the Incarnation for her alleged tendency to “assimilate Christology into ecclesiology.” The Church, Vanhoozer writes, “is not constitutive of the Son’s identity as are the Father and the Spirit” (Biblical Authority after Babel: Retrieving the Solas in the Spirit of Mere Protestant Christianity, 2016).
In response, the Catholic tradition does not assimilate or reduce Christology to ecclesiology; nor does it understand the Church’s relationship to Christ as substantially constitutive, as if to suggest that the Church, rather than Christ, is now the “subject.” Christ precedes the Church as her Head; the Church mediates the light of the nations that is Christ. The Church is not Christ; rather, Christ is present in the Church as His Body, living and working in her sacramentally. As Marc Cardinal Ouellet explains, “The light of nations [lumen gentium] is Christ and not the Church, but this light shines on the Church’s countenance. This Christological consciousness is expressed in the first paragraph of the Dogmatic Constitution on the Church [Lumen Gentium], when it uses the term ‘sacramentum’ to express the relationship between the visible reality of the Church and the invisible mystery — ‘mysterion’ — of God in Christ: ‘the Church is in Christ like a sacrament or as a sign and instrument both of a very closely knit union with God and of the unity of the whole human race’” (Mystery and Sacrament of Love: A Theology of Marriage and the Family for the New Evangelization, 2007). The Church is the new, reborn humanity in Christ.
My second, longer clarification pertains to the sacramental realism of eucharistic presence and the corresponding understanding of nature and grace, creation and redemption, that informs it. The Catholic mind affirms that the liturgy is the deepest point of entry into the mysteries of salvation: Christ’s passion, death, Resurrection, and Ascension. Pope St. John Paul II makes this point clearly in his encyclical Ecclesia de Eucharistia (2003): “The Eucharist has given me a powerful experience of its universal and, so to speak, cosmic character. Yes, cosmic! Because even when it is celebrated on the humble altar of a country church, the Eucharist is always in some way celebrated on the altar of the world. It unites heaven and earth. It embraces and permeates all creation. The Son of God became man in order to restore all [fallen] creation, in one supreme act of praise, to the One who made it from nothing. He, the Eternal High Priest who by the blood of his Cross entered the eternal sanctuary, thus gives back to the Creator and Father all creation redeemed. He does so through the priestly ministry of the Church, to the glory of the Most Holy Trinity. Truly this is the mysterium fidei which is accomplished in the Eucharist: the world which came forth from the hands of God the Creator now returns to him redeemed by Christ” (no. 8).
Thus, the “Theodrama” described by John Paul II involves the reciprocity between the cosmos and history, between creation, fall, and redemption, nature, sin, and grace, as ordered to one another, such that, as then-cardinal Joseph Ratzinger puts it, “Creation looks toward the covenant, but the covenant completes [fulfills] creation and does not simply exist along with it.” Grace restores fallen nature, drawing “the whole of reality into communion with God” (Spirit of the Liturgy, 2000).
In the early 20th century, the French Catholic thinker Jacques Maritain wisely noted that it is erroneous to ignore both the distinction and union between nature and grace. How then should we understand the union-in-distinctness of nature and grace? In particular, how do we understand the Thomistic dictum that grace does not abolish nature but presupposes it, and hence does not leave it untouched? The brief answer to this question must be that grace restores or renews nature, meaning that God’s grace in Christ restores creation in its root, and indeed all life to its fullness, penetrating and perfecting and transforming the fallen creation from within its own order, bringing creation into conformity with His will and purpose.
Fr. Meconi alludes to this Catholic perspective in his conclusion: “The Catholic mind is invited and even empowered to meet the Incarnate Word in all that He has redeemed.” But he leaves this perspective undeveloped. In the words of Henri de Lubac, “The supernatural does not merely elevate nature (this traditional term is correct, but it is inadequate by itself)…. [Rather] it transforms it…. ‘Behold, I make all things new!’ (Rev. 21:5). Christianity is ‘a doctrine of transformation’ because the Spirit of Christ comes to permeate the first creation and make of it a ‘new creature’” (A Brief Catechesis on Nature & Grace, 1984).
Thus, the key idea here is that grace restores nature from within its own order. The Catholic mind affirms, along with Ratzinger, that “faith in redemption cannot be separated from faith in the Creator.” And redemption “is an act of new creation, the restoration of creation to its true identity.”
Vatican II was gripped by St. Paul’s vision of cosmic redemption in Christ (cf. Col 1:9-23). This vision includes the Lordship of Christ and, as Yves Congar correctly states, “The Lordship of Christ over the world is exercised within the creational structures of the world” (Jesus Christ, 1966). Biblical evidence of the latter is that Jesus calls us back to the law of creation (cf. Mk. 10:6-7) that grounds an inextricable nexus of permanence, twoness, and sexual differentiation for marriage. “Law must therefore be considered an expression of divine wisdom: by submitting to the law, freedom submits to the truth of creation,” as John Paul II wrote (Veritatis Splendor, 1993).
I think these two points of clarification belong to the uniqueness of the Catholic mind.
Eduardo J. Echeverria
Professor of Philosophy & Systematic Theology, Sacred Heart Major Seminary, Graduate School of Theology
Last Man Standing
Pieter Vree’s column “Love on Trial” (New Oxford Notebook, Dec.) is a scary one, for sure. The Episcopal Church has formally accepted same-sex marriage on par with traditional marriage. But that’s not the scariest part of Vree’s column. It is that there was only one bishop who dissented and would not cave to the secular culture’s invasion of the Episcopal Church, and he resigned rather than face a possible defrocking.
In his defense, the Episcopal bishop of Albany, New York, William Love, simply referred to Mark 12:6-9, in which Jesus did not allow for a wider interpretation of marriage: “God made them male and female.” The Episcopal Church is actually ignoring the very words of Christ on the principles of marriage! Bishop Love was the last man standing and he didn’t stand a chance. The bishop imitated the phrase, “You can’t fire me. I quit.”
Bishop Love has made an excellent résumé for his next appointment: a priestly vocation in the Roman Catholic Church through the Pastoral Provision established by Pope St. John Paul II in 1980.
The Gates of Hell are prevailing against the Episcopal Church. And the Methodist Church has all but formalized same-sex-marriage rites, though the coronavirus has postponed the conference that will allow its ratification and force a split of the denomination in two over this issue. The Catholic Church, however, has a guaranteed bet, Matthew 16:18: “And I say to thee: Thou art Peter; and upon this rock I will build my church, and the gates of hell shall not prevail against it.”
Dan Arthur Pryor
Belvidere, New Jersey
The Downside of Immortality
Michael S. Rose’s treatment of Jonathan Swift’s great novel Gulliver’s Travels (Literature Matters, Dec.) ends with a discussion of the Struldbrugs, creatures who are immortal. As Swift is a satirist, the description is brutal. Strangely enough, physicists have struggled with this situation for decades.
For instance, consider the electron. It is immortal, an elementary particle. Combined with protons and neutrons, electrons make up all the atoms in our world. To say an electron is an elementary particle means it has no structure. If you hit it over the head with a subatomic hammer, you cannot break it, chip it, or damage it in any way. The electron has no history; it cannot remember where it has been. It does not know its age. It does not grow old. It does not learn from its experiences. A wise old electron does not exist. If we wanted to be positive, we could say that it is just as polished now as the day it was born.
As a result, the electron has no identity. If you were to encounter two electrons together, you would not be able to tell them apart. It would seem, from our point of view, that the existence of the electron is as dull as possible. The electron, can, of course, be destroyed. For instance, if an electron were to meet its antiparticle, the positron, the two would immediately coalesce and explode in a magnificent burst of gamma-ray energy. If you leave an electron alone, however, it lasts forever.
For the electron, as for the Struldbrugs, immortality has its downside.
Rev. Frank R. Haig, S.J.
Professor Emeritus of Physics, Loyola University Maryland
What About the Victims?
First, thank you for printing my letter (“Voices Crying on the Outside,” Dec.). Second, in his reply, the editor stated that a “letters to the editor column…is no place for a confession of sin or for an admission of guilt in a legal case.” Be that as it may, I regret to note that the editor still avoided placing victims’ pain and losses far above the fate of those criminals who have injured and, sometimes, destroyed them.
West Allis, Wisconsin
Ed. Note: While of course we grieve for the pain and loss of victims — that goes without saying — we also pray for the conversion of “those criminals.” I regret that I failed to convince Mr. Pawlak of this point, as he has avoided addressing it.
In his December letter, Pawlak wrote that “any note of the tears shed by” our prison correspondents “for having caused fear, pain, and loss of honestly earned property (i.e., that part of human life spent on obtaining property: each theft is a ‘little murder’) in the lives of their victims…is grossly missing.” In response, I directed him to Alexander Clayton’s letter in our November issue. Now, I request that he, and anyone else concerned about these matters, read the following letter.
The Clear Lens of Catholicism
I want to thank you for providing us prisoners with scholarship subscriptions. The NOR helps us better understand our faith and how to view contemporary issues through the clear lens of Catholicism. It has been especially helpful over the past nine months as we have had no access to the sacraments as a result of the COVID-19 lockdowns.
I want to thank the editor specifically for his response to James Pawlak’s letter (Dec.), which addressed prisoners and victims of crime. Obviously, I do not speak for all inmates, but I can say that it took me a lot of prayer and spiritual guidance just to slightly overcome the absolute despair that plagued me due to the crime I committed.
Priests would constantly counsel me, “You have to trust in God and forgive yourself.” But that is easier said than done. It took a priest’s explaining to me that I am sinning against the theological virtue of hope to actually get it to sink in. Even still, I am constantly haunted by all the pain I have caused by my actions. I understand what my victim went through, and the reality of that cannot be changed; neither can the guilt I feel over it.
I am speaking in a natural sense, but that does not diminish what this guilt has been doing to me spiritually. Likewise, this does not even address the fact that Hell is facing me directly because of what I did.
Mr. Pawlak’s letter demonstrates how people view those of us in the prison system: as animals. And that is also exactly how they treat us. This, though, is nothing compared to how I view myself because of my actions. All I can do, however, is have hope in God’s mercy. But that does not restrict my understanding of His justice. So, for me, it is fear and trembling.
Chillicothe Correctional Institution
Ed. Note: Through the Scholarship Fund, prisoners and others of limited financial means, such as retired religious and seniors on fixed incomes, receive free subscriptions to the NOR. To contribute to this fund, please click here: newoxfordreview.org/donations. Be sure to tick the box indicating that your donation is for the Scholarship Fund. Thank you for your generosity!
Respect the Elbow Room
I am curious why David Mills, whose columns I respect and often enjoy turning to before anything else in the NOR, is so cavalierly dismissive of views about which he confesses to be almost totally ignorant. “I know almost nothing about ‘creation science,’” he says; and yet, he goes on to declare that a Catholic “can accept the consensus” (by which I assume Mills means some sort of accommodation of evolutionary theory) because he knows that the Church’s teaching builds on “reality” (Last Things, Dec.).
When I come to the topic of human origins with my seminarians, I allow that the Church permits a spectrum of speculative views, as long as they fall within the bounds of Church teaching. This spectrum embraces theories of theistic evolution at one end and traditional Catholic views closer to fundamentalist creationism at the other.
Former Notre Dame professor and religious epistemology specialist Alvin Plantinga, in his seminal article, “When Faith and Reason Clash: Evolution and the Bible” (Christian Scholar’s Review, 1991), said of fundamentalist/creationist views, “So far as I can see, there is nothing to rule this out as automatically pathological or irrational or irresponsible or stupid,” and he acknowledged that such views can be developed in intelligent ways.
Furthermore, Plantinga allowed that a Christian would be within his epistemic rights holding a number of views along the above-mentioned spectrum. The Grand Story of Evolution, he argued, is composed of a subset of several theses (the Ancient Earth Thesis, Progress Thesis, Common Ancestry Thesis, Naturalistic Explanation Thesis, and Naturalistic Origins Thesis), some of which have pretty good evidence, and others of which are hotly debated or pure bluster.
I would love to see a little more humble agnosticism on the part of Catholic intellectuals about these matters. For one thing, despite the prevailing claims of the scientific community, there is precious little that is actually empirically demonstrable in its speculative claims about what happened millions of years ago. For another, neither Scripture nor tradition decisively settles the question in any detail beyond a few guidelines, such as the special creation of the human soul and the historicity of our common first parents (monogenism) and their fall into sin. The Church is wise indeed to allow some elbow room for speculation. Let’s keep things that way.
Professor of Philosophy, Sacred Heart Major Seminary
DAVID MILLS REPLIES:
I’m flattered that Philip Blosser often turns to Last Things first. That’s encouraging. But like a priest who recently lectured me about socialism after I’d merely mentioned that I’d reported on a debate on the subject (letters, Nov.), he engages a subject I didn’t discuss. I was talking about fundamentalists and their “young earth” school of “creation science,” not about Catholics at all. And all I said was that fundamentalists force themselves into ridiculous positions because they read Scripture wrongly, while Catholics can accept the consensus, whatever that turns out to be, because the Church reads Scripture rightly. As I wrote, we can trust that whatever apparent contradictions there may be, the Church will eventually work them out.
As far as I know, no Catholic scientist believes in the young-earth theory, because it’s demonstrably wrong, if you accept the normal ways of reading the world, the ways that led Msgr. Georges Lemaître to the Big Bang theory almost 100 years ago. And no Catholic scientist believes that dinosaurs existed only a few thousand years ago, because that’s demonstrably wrong, unless you want to toss out basic scientific tools.
Indeed, Prof. Blosser agrees with me. He writes about “speculative claims about what happened millions of years ago.” I was writing specifically about people who believe (here I was quoting an ad for a creation science conference) that “the fossil record was laid down more or less simultaneously, globally, just a few thousand years ago during Noah’s Flood,” which they believe happened not very long after the creation of the world. Not millions of years, a few thousand.
I’d be curious to know what Prof. Plantinga would say now, 30 years later. I think there are some problems with his analysis. Further, he’s answering different questions because he’s dealing with the matter as a Reformed Christian and not as a Catholic.
Those interested in reading more should look up Brett Salkeld’s “Catholic Creationism as a Conspiracy Theory.” It appeared in Notre Dame’s online Church Life Journal in May 2020.
A Lady & Her Daughter
In “Make Me Famous” in The News You May Have Missed (Dec.), Ivanka Trump is referred to as the “former first daughter,” and Melania Trump as the “former first lady.” Whose idea was this? They were still the first daughter and first lady at the time of publication and would be until January 20, 2021, if not beyond that, depending on all that was being discovered about the ballot count at the time.
You could be accused of publishing lies, but I suppose you’d accepted the media’s declaration about the election result and were just thinking ahead. In any case, a retraction and apology would be welcome.
Ed. Note: We jumped the gun on that one. As of Jan. 20, however, Melania is indeed former first lady, and Ivanka former first daughter. Sorry!
The Judiciary’s Deplorable Tilt to the Left
The American judiciary’s tilt to the left has been a drastic challenge to Catholic and conservative ideals for more than half a century. Edwin Dyga addresses many causes of this deplorable situation (“Why Conservative Justices Run Interference for Liberal Causes,” Dec.). He hits the nail on the head in observing that the critical issue is “the cultural milieu in which [a nation’s] jurisprudence is shaped.”
For centuries, Christianity, and especially the Catholic Church, has been a major patron and supporter of arts, learning, and the dissemination of knowledge and ideas. Evangelization was accomplished with exquisite music, paintings, architecture, and books. Unfortunately, this is no more the case; with few exceptions, Catholic organizations failed to make a transition to modern means of communication: radio, movies, TV, and now electronic media. Pope John Paul II, building on Paul VI’s apostolic exhortation Evangelii Nuntiandi (1975), called for a new evangelization in his apostolic exhortation Christifideles Laici (1988). The latter contains an entire section on the importance of culture in the process of evangelization, but apparently this appeal fell on deaf ears.
Ill effects of this deficiency are reflected, among others, in the quality of jurisprudence not just in the United States but worldwide.
Professor of Finance & Economics, Hollins University
The trouble with conservatism, which is really the moderate branch of liberalism, is that it has no metaphysics. Having no metaphysics, conservatism also has no elevated or long-term view. It does one thing and then another, with no back-reference for the sake of consistency.
Though U.S. Supreme Court Associate Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett are Catholics, they seem not to be Catholics in the truly philosophical sense. They are Protestantized Catholics, schooled without break in institutions of higher education, including law school, in which the worldview is that of the managerial domain. So they manage things. The Left is anti-metaphysical, but an anti-metaphysics is bound to be more robust than no metaphysics whatever.
Dyga accurately observes that conservatives on the bench tend to be governed by a politeness that, truly, can find no basis in any candid analyses of the situation. Such politeness meets with no reciprocity. But an age in need of judges cast in the mold of Joseph de Maistre is, alas, unlikely to find them.
Thomas F. Bertonneau
Oswego, New York
Edwin Dyga argues that the explanation for failures by “conservative” judges to demonstrate their conservatism in their judgments lies not so much in the institutional framework as in their unwillingness to adopt the robust, activist-driven approach of their left-leaning colleagues. Dyga is correct that institutional structures in themselves are no guarantee of fidelity, but his article would have benefitted from an acknowledgment of a central difference between the two frameworks he considers: that of Australia and the United States.
Central to the overt politicization of the U.S. judiciary is the constitutional “protection” of rights. This has proven to be a platform for left-leaning judges to reimagine these protections in ways the American Founding Fathers could never have imagined, and a means by which to enact by judicial fiat leftist agendas that have failed to pass legislatures. In contrast, the Australian Constitution is largely rights-free, and our High Court has generally resisted the temptation to create rights.
Dyga argues that appointing judges who engage in a strict reading of the law is insufficient protection of conservative principles. He references in support Bostock v. Clayton County (2020), in which the U.S. Supreme Court (SCOTUS) found that a prohibition on discrimination based on an individual’s sex contained in Title VII of the 1964 Civil Rights Act also prohibits discrimination on the basis of gender identity and sexual orientation. Who knew? In this decision and many others, SCOTUS seems to have been unwilling to leave social issues to elected officials. I do not consider this decision — as Dyga does — to have been decided “on the basis of a strict reading of the law,” although it purports to be so. On the contrary, the decision seems to have been a troubling rejection of the traditional role of the courts in the rule of law, and an involvement in interpreting legislation in a manner contrary to that originally intended by the lawmakers of the time. SCOTUS here interpreted legislation that was nearly 60 years old in a manner no one had ever interpreted it before, and it displayed considerable judicial ingenuity to reach an outcome that accords with the current moral Zeitgeist. But in doing so, SCOTUS undermined trust in the tradition of the law and in the ability of citizens to structure their affairs and act consistently with the dictates of the law.
The problem here was the failure of the court’s majority to recognize the supremacy of the legislature and to read the law as written and as intended. Why that occurred is a matter of speculation. It may well be, as Dyga argues, that it betrayed a “pathology of meekness.”
It is, however, a damaging judicial approach. The legislature can do what a court cannot do: It can consider all the issues and develop a comprehensive legislative framework. Acts of Congress can, for example, expressly rule in or out impacts on other legislation and other rights. Particularly in relation to discrimination law, legislatures are far better placed than courts are to determine what attributes should or should not be afforded protection and how and with what interaction with other rights.
Similar principles are at stake in the interpretation of the Constitution, in which the words used and the rights protected or omitted have been the subject of long and careful debate and compromise. It is not the role of the courts to engage in acts of judicial ingenuity to reformulate legislation or the Constitution to meet the will of the court’s majority in any particular case.
In this, I depart from Dyga’s view. I would hold to this perspective — except in extreme cases in which a law departs from the natural law — whether the majority of judges at any particular point is left- or right-leaning. If followed, this approach returns lawmaking responsibility to elected officials. Unless or until left-leaning judges abandon a dedication to activism — to achieve what democratically elected lawmakers cannot, bending legislation to their will — it does also demand vigilance in the appointment of judges who reject that approach. It also, of course, demands an urgent need to elect politicians who are strong enough to push for laws that are for the public good and, where they have a say in their appointment, judges who respect the law as written.
In my view, were a court dominated by “conservative” judges to adopt an approach of remodeling properly passed laws and the Constitution to their own viewpoint, it would ultimately undermine respect for the law in equal measure to that which occurs when left-leaning judges (whether or not joined by supposedly “conservative” judges) do so.
Michael Quinlan, Dean
School of Law, The University of Notre Dame Australia, Sydney
EDWIN DYGA REPLIES:
Casimir Dadak is correct in identifying the problem of the judiciary’s leftist tilt as being inherently cultural in nature. Many on the dissident side of contemporary cultural discourse have intuitively known this to be true, and as Evangelii Nuntiandi and Christifideles Laici have shown, calls to re-engage in the public square have indeed been made in the past. Unfortunately, the memory of these calls seems to have evaporated in what I see as a kind of civilizational amnesia. However, I would not go so far as to conclude that those calls went entirely unanswered; many did organize in response to the turmoil of secular modernity, but, needless to say, they did not prevail in their efforts. I therefore contend that the key to diagnosing the reasons for conservatives’ defeat in the culture wars lies in reflecting on the methodology employed in promoting our worldview.
We know our principles are sound, yet they have been pushed out of the public square and play virtually no role in governance, despite the fact that conservatives — acting in concert — were once in a position to determine electoral outcomes and even brought Hollywood to its knees for offending our moral sensibilities. Though the Catholic Church has been the principal institution of cultural transmission, it appears that the transmission of collective cultural awareness has been exceptionally weak, at least over the past century. The resulting loss of Catholic identity has led to a situation in which our community is increasingly constituted by people who do not know who and what they are. The beacon built upon the rock was intended to illuminate the darkness, but today it prides itself on effectively extinguishing its light in the name of “relevance.” Embracing that relevance has atomized and neutered what was once a force to be reckoned with, and, as a consequence, our community is now incapable of effectively projecting its interest with any real force within society.
It is, therefore, no surprise that many modern Catholics confuse their Catholicity with a kind of vacuous nominalism; and to tie this back to the subject of my article, it is equally no surprise that what passes for Catholic leadership in secular society suffers the same pathology in law and politics. Thomas F. Bertonneau correctly identifies the recently appointed justices to the U.S. Supreme Court as “Protestantized Catholics” who may well be “schooled without break” in the most prestigious institutions of higher learning but whose expertise does not extend far beyond merely managing the status quo. I have witnessed the same phenomena in Australia. Likewise, as what passes for conservatism in the current age is devoid of metaphysics, as Prof. Bertonneau notes, it is incapable of forming a coherent view of what the Good Society entails beyond competent administration and book-keeping.
Thus, it seems that public Catholicity shares the same fate as political conservatism because both are similarly afflicted. Just as Church leaders are far too willing to break bread at the same table with the Apostles of the Culture of Death and Self-Loathing, contemporary conservatism genuflects before the altar of liberalism by routinely ceding moral authority to the Left. I don’t recall the last time a progressive was castigated by his colleagues for offending a conservative; conservatives, however, find life difficult even among their own if they transgress a leftist taboo. In this context, I am often amazed that progressives have not made greater strides in their social re-engineering of Western society; the road to their imagined utopia is wide and unguarded, even if the destination remains ultimately unattainable and the journey marked by periodic horrors.
Regarding Michael Quinlan’s comments about the fundamental difference between the American and Australian systems vis-à-vis the treatment of civil rights at law: I wonder whether this is mostly due to a difference in legal approach (i.e., jurisprudential culture). Rights may come before judicial consideration whether they are enshrined in statute or emanate from the common law; in both cases, they may be subject to redefinition and expansion by a radical activist judiciary. That this process has not occurred in Australia to the same degree may simply be due to the differing historical nuances between Australia and the United States and the disposition of the members of their respective courts.
The fact that a dispute even exists about whether Bostock was or was not decided on the basis of a strict reading of the law illustrates how politicized jurisprudence has become. The decision could arguably be interpreted as originalist only if “sex” and the concepts of “sexual orientation” and “gender identity” merge into one and the same, and if this merger could be proven to have been somehow contemplated by the drafters of the law; but such legal confabulation could only be achieved through the mischief of ideology. I therefore share Prof. Quinlan’s concern that the decision will undermine public trust in the rational rule of law (and the institutions of higher learning where the justices received their education). But I cannot see the merit in criticizing disingenuous progressive activism and leaving the conservative response at that. Electing more competent members to the legislature is the instinctive solution; however, as my article in this issue discusses, this too may be a fool’s errand in the present climate.
I interpret Prof. Quinlan’s response as a call for the judiciary and the legislature to keep to their respective roles. I wholeheartedly agree with the sentiment. However, left-leaning judges do not show any signs that they will “abandon a dedication to activism” — nor should we expect them to, as this has constituted an unblemished winning strategy on their part for decades. I contend that a judge of a conservative inclination need not sacrifice his professional integrity to engage on equal terms with a jurisprudential culture that has become thoroughly politicized. Indeed, not doing so means entering the breach unarmed and unprepared — an unblemished losing strategy. When responding to the politicization of culture, one does not contribute to the toxicity of existing activism if one’s politics is not toxic to start with; and when one’s agenda has a metaphysical worldview informed by Catholic social teaching, it is the very antithesis of toxicity.
Pace our critics, we have nothing to be afraid or ashamed of in promoting our worldview, especially in law and politics, and we should do so assertively and unapologetically.
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