A New Supreme Court Justice Must See Harms of Relativism
For a while in coming weeks, because of the Supreme Court appointment, there will be much attention paid to law — how the appointee understands it, how he would apply it to issues dear to the hearts of certain factionalists, his "philosophy" about it.
Much will be heard from a number of blind legislators, who will seriously examine the ponderous subject as those blind experts studied an elephant — one feeling its trunk, another its legs, still another its tail, thus coming up with a very weird definition for an elephant, including a snake, or a tree trunk, or a rope. In regard to law, there are few spokesman left who have vision enough to discuss it intelligently regarding what it truly is about.
In discussing law, we are really discussing man, for questions of government — its legislations, permissions, prohibitions, its authority to rule by grants or limitations of individual liberty — exist only because man is what he is. All else in the universe is governed by what we call laws of nature, but those are not what concern us here. The law involved in the affairs of American citizenry is what is at stake in every appointment or election of anyone to any American court. And the central premise involved is to what extent are we as citizens at liberty to act and to what extent may we be constrained in acting.
That premise can be capsulated thus: Law in regard to human conduct rests on what is reasonable for what man is — a being who reasons, living in society.
I treated this, too briefly I am afraid, sometime ago in a little paperback volume (The Catholic as Citizen, Franciscan Herald Press, July 4, 1979, chapter 2, "The Origin and Nature of Law"):
Either law is entirely a construct or man's intellect, to serve man's purpose; or it is somehow God-given, though through the exercise of man's reason. Only in the second view — which is the Catholic one — is law a reality that is not simply interior. This view, without prejudice to a full understanding of law, can be called the natural law philosophy of jurisprudence."
The great Romano Guardini, in his The End of the Modern World (ISI Books, Intercollegiate Studies Institute, 1998), goes to far greater depths in this matter:
"The ability to hale was made an essential, God-given part of man's nature at the time of his creation. The permission to rule is a privilege by divine consent. The obligation to rule is mission. Since the Fall, it is also man's fate and continuous, arduous test.
"How on the whole, does man rule? Through knowledge he desires to know the world in order to give it a new face. This is the goal of culture, and the road to its fulfillment leads through mounting dangers."
Every constitutional establishment of rule, and every appointment to courts which draw lines and parameters of rule, are part of that cultural journey, and dangers from ignorance or prejudice of intellect are what make such things of utmost importance. It can be said that civilization itself hangs upon them, so that citizens should be concerned with every election, and every resulting appointment to the judiciary, especially the High Court that in our system is the court of last resort.
Unreasonable judgments by that court for many reasons are momentously ominous, even catastrophic — consider the upholding of slavery, depriving black humans of fundamental human rights and granting slaveholders power of life or death over them; or the upholding of prohibition of the right to consume what human ancestors had drunk from the time of Noah; or in more recent times, the horrendous grant to mothers of power of life and death over conceived but unborn children.
Guardini is so prophetic in regard to this topic of what goes on in our generation concerning and within "the studied patterns of theoretical and practical [cultural] systems" that I must quote at length from his work:
"The spirit thrives on knowledge, justice, love, adoration — not allegorically, but literally. What happens when man's relation to these is destroyed? Then the spirit sickens. Not as soon as it errs or lies or is guilty of an injustice; it is difficult to say just how many such `exposures' to disease the spirit can withstand before it succumbs to that inner blindness, that destruction of all proficiency, which are the symptoms of spiritual decline. However, this much is certain: Once success usurps the place of justice and goodness; once the holy is no longer perceived or even missed, the spirit is stricken indeed....
"For Plato, the tyrant (i.e., wielder of power), who was not held in check by reverence for the gods and respect for the law, was a forlorn and doomed figure. Little by little modernity lost this knowledge. Things that are now common practice — the denial of any norm higher than man, the public consent to autocratic power, the universal use of power for political or economic advantage — these are without precedence in history."
Guardini sees a coming arrival of a "new" nan, one sensing that since Hiroshima "we live in the rim of disaster and that we will stay there till the end of history." He treats at length his new man," but in the following gives an important part of that man's portrait:
"The coming man is definitely un-liberal, which does not mean that he has no respect for freedom. The `liberal' attitude is that which declines to incorporate absolutes into existence because their either-or engenders struggle. It is far easier to be able to see things in any light, `the only important thing' being `life,' and 'getting along with others.' Values and ideas are but a matter of personal opinion. Leave everybody alone and all will be well.
"The [new] man under discussion knows that unfreed from such attitudes man can never cope with the existential situation we face today. What will count will be not details or elaboration, but fundamentals: dignity or slavery; growth or decline; truth or lie; the mind or the passion."
Now, it is not realistic to expect that the most recent Supreme Court nominee is the new, coming man of Guardini's vision. Such a man, were he to arrive at this moment in history, would probably have no political viability, for history has not brought modernity full to its end, though that end is coming more and more into sight.
But it can be hoped he has something to him of the traits of our rescuer from modernity, such as does most noticeably Justice Clarence Thomas on the Supreme Court. We will know if, being seated, the justice will join Justice Thomas (and often Justice Scalia) in recognizing absolutes that apply and are necessary for bringing the fullest justice, and allowing genuine freedom rather than license.
In other words, we can hope the new justice will recognize the emptiness of law without discipline, the impossibility of justice being delivered by fully relativistic jurisprudence that sees all issues determined by circumstances; the futility of expecting human fulfillment by the individual's complete autonomy — from responsibility, duty, or any calling to nobility. Without respect for law a nation has no conscience.
Guardini, of course, was not predicting the "new man" to be an individual, a white knight leading a charge against forces of darkness. What he was predicting was the coming death of the Enlightenment, which has so dominated thought, culture, academia, and thereby politics — the judiciary and all the apparatuses of culture — in the 19th and 20th centuries. And in place of the doomed "modem world" created by the Enlightenment, he sees a new and therefore unique appreciation for the realities which are necessary for mankind's success in the pursuit of human happiness.
That does not mean he foresees the arrival of a utopia in which virtue will again be honored, and all the myths of liberty attained by virtue of the human intellect and will put aside.
But he forecasts, and we can believe that glimpse of the future is attainable, a more human culture, one reflecting eternal verities and marked by great human humility that is a necessary ingredient of genuine culture, so that starting with this generation man will achieve happiness equal to or even greater than he has attained in past ages of belief.
There are signs of movement in the direction of Guardini's vision. So it is not unreasonable to expect the emergence of cultural figures such as Supreme Court justices, and presidents who have the authority to appoint them, who appreciate what is reality, and have the ability to distinguish it from the myths about a false liberation of man without recourse to that which is greater than himself.
© The Wanderer
This item 6612 digitally provided courtesy of CatholicCulture.org
