The Epistemology of the Work of Karol Wojtyla in view of the Theology of the Body (TOB): 9/10/04
Wojtyla is Charged With Subjectivism (concretely that of Kant): e-mail exchange.
Protagonist 1: “The reason that sexual ethics is the key area of moral disagreement between the Catholic religion and secularism is that Catholic moral theology is essentially Aristotelian - meaning that it's foundational moral concept is that human nature is rationally well-adapted for some activities and not others, which such activities constitute the natural end of man, rightness and wrongness in morality deriving from whether the action in question is compatible with this end. Secularism is essentially anti-Aristotelian; it's usually either Kantian or utilitarianism (not, as so many good Catholics think, subjectivist). The reason that the Church, for so long, had little to say in the debate on sexual ethics is that most theologians, especially since the Council, themselves ceased to be Aristotelians in ethics. Hence, they lacked the necessary concepts to articulate the reasons underlying their own position. This is the primary reason that so much Catholic sexual doctrine degenerated into bare claims about "God's will” and "God's law" etc. concerning sexuality. Such moral theologizing, I point out, is at home in Lutheranism or other forms of Protestantism,not Catholic moral theology.
I happen to think that Kantian and utilitarian thought really is fundamentally subjective. The reason is, as Gilson argues, that they make basically arbitrary initial presumptions. Certainly, once those presumptions are made, they appear to proceed rationally and not subjectively, but it's absolutely necessary to get at the root of the problem. A good example of this is in the writer's comments about the loss of aristotelianism. I think that what led to the loss of Aristotelian ethics was the earlier loss of Thomistic metaphysics. The loss of that solid foundation is what led to the inability to articulate moral philosophy. The writer is absolutely correct about the compatibility of ‘God’s will' ethics with Lutheranism--as well as with Islamic 'ethics'.
Augustinian thought, esp. in the late medieval thought of Scotus and Ockham certainly led the way to this type of subjective voluntarism. See what I mean? 'God's will' ethics is technically termed 'voluntarism,' but it went hand in hand with the Nominalism of the late medieval Augustinians--and that was a subjectivism. in fact, the whole point of 'divine illumination' in Augustinian thought is to cancel out the subjectivism at its heart, but that in turn leads to voluntarism in ethics. Read Pieper, Knowles and Gilson on this connection. Tell me if I haven't been clear, because this is absolutely fundamental.]
3. The Pope's theology of the body, beneficial as it has been for so many, makes no serious attempt to recover the essential Aristotelianism of Catholic moral theology. There are elements of Aristotelianism, as when some kinds of relationships or actions are praised as comporting with "the dignity of the human person" etc., but this is more a gesture in the direction of Aristotelianism than true Aristotelianism. In fact, the dignity of man is founded on the fact that the true final end for man is the contemplation of God; the concept that does all the philosophical work here is "final end" part, not the "dignity" part, and the JP2 generally elides over this in favor of an unexplicated concept of "dignity" or "the human person" (or both together).
4. Worse, some times John Paul actually appropriates
foundational concepts from Kantianism and uses these to explicate the
theology of the body. This is especially clear in his use of the
principle "Treat a person always as an end, never solely as a means,"
which is Kant's fourth formulation of the Categorical Imperative
verbatim. (The same idea is at work in language about not treating a person "as a thing" or "as an object.") The problem here is that, if JP2 means what Kant meant, then the principle he is quoting will certainly not do the work he wants it to do; if it did, secular Kantians, instead of being his primary philosophical opponents, would already agree with him on sexual ethics. Hence, in using this language, JP2 is essentially changing its meaning, but he never gives an intelligible account of what the new meaning is. It is possible, I believe, to translate everything JP2 says back into Aristotelian terms - if, that is, one already knows what the Aristotelian would say, but the modern secularist or average Catholic does not know this, and so is left with something that has no definite meaning at all.
5. Something similar could be said about JP2's language of "self-giving" or "making a gift of one's self." I can translate this kind of metaphor (note, as many do not, that it is a metaphor; you don't really give yourself, if only because you don't own yourself) into Aristotelian terms, but the average person, innocent of meta-ethics, cannot make this kind of translation and so has only a metaphor and not an intelligible doctrine. Perhaps this kind of thing would be excusable in popular catechesis (though I doubt it), but it's really very unhelpful in what purports to be a deep book of theology, like JP2's theology of the body volume.
6. Finally, I object to the term "theology of the body." The implication is that there is a special division of theology that accounts for the Church's moral doctrines about sex. This is not correct. There is one moral theology, based on the final end of man, and this one moral theology is an integrated whole explaining the whole of morality, from norms about stealing to norms about fornication to norms about war. (This fragmentation of moral theology can also be seen in the Church's post-conciliar discovery of "social justice," a kind of justice unknown to Thomas Aquinas and Alphonsus Liguori and not clearly reducible to any of the Aristotelian foundations of Catholic moral theology.) Worse, the "theology of the body" is generally presented as a commentary on Genesis 2, which makes the whole moral doctrine appear to depend on revelation, when, in fact, the moral norms at issue are part of natural morality done in philosophy, not revealed moral theology.
7. So, take the theology of the body for what it's worth, which is not negligible, but it's a terrible shame, and huge missed opportunity, that talk about the theology of body will effectively preempt any real progress in moral discourse that the Church might have been able to make by rearticulating the Aristotelian meta-ethics that in fact underlies its moral teachings.
* * * * * *
Protagonist 1: “It is not that I object to some particular sentence in TOB; I object to every sentence of TOB-at least all those that presuppose non-virtue-theoretic moral concepts.”
“In a word, where the Christian tradition has from the beginning been virtue-theoretic and has developed a rational account of its presuppositions in virtue-theoretic moral philosophy, the theology of the body is an incoherent mélange of virtue-theoretic moral concepts from the Gospel and non-virtue-theoretic moral and meta-ethical concepts from certain modern philosophers that are, in fact, not logically compatible with the Gospel's teaching. The result is that the theology of the body is not only incoherent but risks perverting the meaning of the Gospel by reinterpreting the Gospel's virtue-theoretic moral system in terms of a non-virtue-theoretic meta-ethics.”
Response of respondent: “But people seem greatly helped.”
Protagonist 1:Answer: First, I venture to say that most devotees of the theology of the body are people who would accept the Church's teachings on sexuality regardless of how they were presented. Let us remember that those teachings are true, that the human mind has a natural orientation to truth, and that, when God opens a person's heart to the truth through grace, that person will believe. In other words, when people accept the theology of the body, is this because the moral teaching of the Gospel contained therein is true, or is it because they respond to the Kantian and personalistic rhetoric? I'm inclined to think it is generally the former, and so I don't credit the theology of the body but the grace of God.
Second, the revival of chastity among young people is not a purely Catholic phenomenon. In fact, Evangelical Protestants probably have more success keeping young people chaste than we Catholics do, and the Evangelicals manage this feat relying on the Scriptures alone and not the theology of the body. This suggests that it is the inherent truth of the Gospel, not the theology of the body, that is at work in the world. There are sociological factors at work too, as when children who have experienced the deleterious consequences of their parents' divorces and extra-marital sexual adventures resolve not to emulate them. In any event, it is quite unclear whether we should attribute improving levels of chastity, to the limited extent that there be such, primarily to the theology of the body.
Third, although X is very impressed with theology of the body discussion groups and the like, I am not, for the simple reason that the persons who attend such things are a self-selecting group. It's not at all surprising that they react enthusiastically to what they hear. The same happens at LaRouche for President meetings; it doesn't follow that the message being preached has mass appeal.
Fourth, the mere fact that it is the pope preaching the theology of the body ensures that it will have some measure of success. The personal prestige of the pope-especially this pope-is such that if tomorrow he gave us a theology of reinforced concrete, there would people willing to attend a discussion group about it. From such enthusiasm we are entitled to conclude nothing about the inherent appeal of the message.
Finally, as to my "lip service" on the theology of the body being wonderful, I'm happy to retract it. I included it in an attempt to avoid offending certain parties, who seem to have taken offense nonetheless. I don't really think the theology of the body is wonderful. I think it's philosophically confused and, because of its superficial appeal, quite dangerous in the long run because it smuggles Kantianism and other non-Christian concepts into the Gospel, thus perverting the meaning of the Gospel. And, while we're at it, contrary to X's interpretation, I do say that the pope is, albeit unwittingly, asserting falsehoods, at least insofar as definite content can be assigned to certain of his assertions. In my original email, I was trying to be polite about this, but now I'm aiming merely at clarity, so I say it openly.”
Protagonist 1: "I reject the conceptual foundations of the system and thus all of the sentences formulated in it. This is a much more radical kind of disagreement than merely picking out a sentence that I think is false and X thinks is true. It's like the clash between general relativity and Newtonian mechanics. When Einstein replaced Newton, all of the sentences of Newtonian mechanics fell at once because the foundational concepts of the system were rejected wholesale. Such is my objection to TOB.
Yes, there is a lot of truth in TOB, just as there was a lot of truth in Newtonian mechanics-but in exactly the same sense. Newton's laws of motion are, strictly speaking, false, but they are nevertheless close approximations to equations of general relativity as applied to bodies of medium mass moving at normal velocities; so too all of the sentences of TOB using Kantian concepts are, strictly speaking, false, but they have approximate translations in virtue theory that have mostly (but not identically) the same consequences.
Insert: What is “virtue-theoretic morality”?
Answer of Protagonist 2, agreeing with Protagonist 1:
“"Aquinas and...Aristotle agree that morality is
measured by a natural end for man based on man's human nature..." because
that also places virtue theory within what is broadly referred to as
philosophical realism: they hold that through reason we can arrive at an
understanding of human nature that is sufficient for the articulation of a
moral philosophy. This is in stark contrast to modern philosophers who
frequently maintain either that we cannot know what human nature is or even
that that there is no such thing as human nature--man makes himself to be
what he wills to be.”
My Reponse:
The Root of Modern Thought:
Positive: the recovery of the subject, the “I.”
Negative: In the recovery, the “I” is “disengaged” from reality: I am consciousness perched outside of the context of the world. I, the subject, make everything to be object, and reduce it to impersonal mechanism. Everything is “nothing but…”
Descartes is obsessed with certitude, not truth. Truth can be conceptually messy and obscure. The method is everything in the attempt to control reality in order to get the clear and distinct idea, and hence, certitude.
“The mistake of obscure and confused thought is to see these [secondary properties and bodily sensations] as `in’ the bodies concerned. The normal, unreflecting person thinks of colour or sweetness as being in the dress or the candy; places the pain in the tooth, the tingling in the foot. The real ontological locus of all these, Descartes asserts, is in the mind. They are all ideas that are, indeed, brought about by certain properties of dress, candy, tooth, foot, but their place is in the mind. In this, they are like the ideas of primary qualities – figure, number, size. But unlike these, they fail to represent anything in the object. The body isn’t red in the way it is square.
To see things this way is to have a clear and distinct understanding of them. But this involves withdrawing from our normal way of being in the world. As we live normally through them, our experiences of the red dress or of a toothache are the ways in which these object as there for us. The red dress is present for me, through my seeing it; the tooth insistently clamours that it is in pain. I attend to the object through the experience… What Descartes calls on us to do is to stop living `in’ or `through’ the experience, to treat it itself as an object, or what is the same thing, as an experience that could just as well have been someone else’s. In doing this, I suspend the `intentional’ dimension of the experience, that is, what makes it the experience of something. I take note, of course, that this experience makes a claim to be of something, or that it inescapably suggests to us its (supposed) intentional object. But I treat it on all fours with quite non-intentional experiences like inner sensations; and as in the case of these, I relate it no longer to a putative object but to an external cause. In objectifying the experience, I no longer accept it as what sets my norm for what it is to have knowledge of these properties.
Of course, this withdrawn stance, although it can certainly alter our way of experiencing things, is not simply another way of experiencing them. There is a confusion about this in the whole Cartesian-empiricist tradition. Descartes and his empiricist successors sometimes talk as though the focus on `immediate’ experience were brought about through a more exact awareness of our actual first-person experience. But there is no way I can experience my toothache as a mere idea in the mind, caused by decay in the tooth, sending signals up the nerves to the brain (or through the animal sprits to the pineal gland). And since the very nature of disengagement is to withdraw from the ordinary first-person experience, it would be surprising if I could. Disengagement involves our going outside the first-person stance and taking on board some theory, or at least some supposition, about how things work. This is what Descartes does in this case, when he supposes that pains and observed secondary qualities are ideas in the mind which are caused by various (primary) properties of the organ or object. Once we disengage and no longer live in our experience, then some supposition has to involved to take up the interpretive slack, to supply an account in the place of the one we are forgoing. For Descartes and his empiricist successors, the suppositions are (naturally) mechanistic…
The point of the whole operation is to gain a kind of control. Instead of being swept along to error by the ordinary bent of our experience, we stand back from it, withdraw from it, reconstrue it objectively, and then learn to draw defensible conclusions from it.
And so, rationality for the clear and distinct idea means disengagement from the experience of common sense reality (being as sensed). This produces an objectification – mechanics.
“Perhaps you find Aunt Mabel’s sense of humour irritating. It seems strained and pushy, calculated to take over the grab attention. But you tell yourself that you’re overreacting. It’s just something about you, which makes you react like this to a perfectly normal way of being. You try to strangle the reaction by treating it as just a reaction, `not a valid perception of annoying features. We do something similar when we decide that we oughtn’t to feel guilty for something we do or feel and treat the spasms like some irrational holdover from our childhood training. Disengagement and what we might call engaged exploration are two quite different things” (From Charles Taylor's "Sources of the Self").
Immanuel Kant was in a direct line of this Cartesian disengagement, and therefore the repudiation of experience of the self in the moral act.
Wojtyla: “Kant believes that empirical knowledge provides us with only a chaos of impressions, whereas it gives us no basis for such concepts as substance or cause. These are, in Kant’s opinion, categories that derive solely from reason, and so they are completely a priori. Reason… makes use of such categories so as to introduce the order it needs into the chaos of the impressions derived from experience. Consequently, science – certain knowledge – is not based on experience but only on sensory or rational a priori forms. We cannot, however, base metaphysics on these forms because metaphysics does not refer to experience, and so metaphysics is not a science.”
Wojtyla is both affirmative and critical of Kant:
Affirmative: Against the utilitarianism of his day that wanted to reduce the human person to an object of use, Kant maintained the dignity of the self.
“Kant recognized this truth and expressed it in his famous second categorical imperative: act in such a way that the person is always an end and never a means of your action. It should be noted that Kant made this statement in the intellectual climate of the epoch that ushered in our own and that is especially fruitful in it. Kant’s opposition to utilitarianism and its consequences, including its economistic ones, brings the personalism he expressed in the second imperative into proximity with a conviction that Christianity has always maintained. Vatican II have classic expression to this conviction when it said that the human being is `the only creature on earth that god willed for itself’ (Gaudium et Spes 24). Human beings, as willed by the Creator for themselves… may not be regarded as means or tools in their own praxis, but must preserve their own proper superiority in relation to it… This superiority is synonymous with regarding the intransitive in human activity as more important than the transitive…
What I have called here the priority of the human being… [means]…`human beings are more valuable for what they are than for what they have’ (Gaudium et Spes 35).”
Negative: “Now that we have before us an outline of the Kantian view of ethical life we may ask:
Wherein lies that `separation of experience from the act in ethics…? It lies in the fact that 1) Kant removed the very essence of ethical life from the realm of personal experience and transferred it to the noumenal, transempirical sphere, and 2) he crystallized the whole ethical experience of the personal subject into a single psychological element: the feeling of respect for the law… Thus, the `act’ as a concept reflecting the empirical structural whole of ethical experience disappears from ethics. Ethical life lies concealed beyond the boundaries of experience.”
Wojtyla takes his philosophic elaboration of “experience” and applies it to the text of Genesis. Thereupon, he does the “Theology of the Body.”
Two Quotes: From “The Acting Person.”
1) “This presentation of the problem [“the problem of the human being as a person”], completely new in relation to traditional philosophy (and by traditional philosophy we understand here the pre-Cartesian philosophy and above all the heritage of Aristotle, and, among the Catholic schools of thought, of St. Thomas Aquinas) has provoked me to undertake an attempt at reinterpreting certain formulations proper to this whole philosophy. The first question which was born in the mind of the present student of St. Thomas (certainly a very poor student) was the question: What is the relationship between action as interpreted by the traditional ethic as actus humanus, and the action as an experience. This and other similar questions let me gradually to a more synthetic formulation in the form of the present study The Acting Person.
The author of the present study owes everything to the systems of metaphysics, of anthropology, and of Aristotelian-Thomistic ethics on the one hand, and to phenomenology, above all in Scheler’s interpretation and through Scheler’s critique also to Kant, on the other hand.”
2) “Introduction: The inspiration to embark on this study came from the need to objectivize that great cognitive process which at it origin may be defined as the experience of man: this experience, which man has of himself, is the richest and apparently the most complex of all experiences accessible to him. Man’s experience of anything outside of himself is always associated with the experience of himself, and he never experiences anything external without having at the same time the experience of himself….”
“Naturally we do not interpret experience here in the purely phenomenalistic sense, as has often been the practice in the broad sphere of empiricist thinking. On the contrary, the empirical approach adopted by us must not, and indeed cannot, be identified in any way with the phenomenalistic conception of experience. To reduce the range of experience to the functions and the content of sense alone would lead to deep contradictions and serious misunderstandings…. For once the phenomenalistic stand is adopted it becomes necessary to ask, what then is given directly in experience? Is it only some `surface’ aspect of the being called `man,’ an aspect detectable by sense, or is it man himself? Is it my own ego as a human being and if so, to what extent is it given” it does not seem reasonable to believe that we are given only some more or less undefined set of qualities in, or rather of, man, but not man himself. Moreover, it seems most improbable that man with conscious acting or action is not given as the object of experience.”
Now, to the “Theology of the Body” (TOB):
The entrance into TOB: the meaning of experience. John Paul II applies it to the revelation of Genesis 1 and 2.
“The analysis of the first chapters of Genesis forces us, in a way, to reconstruct the elements that constitute man’s original experience. In this sense, the character of the Yahwist [Genesis 2] makes it a special source. Speaking of original human experiences, we have in mind not so much their distance in time, as rather their basic significance. The important thing is not that these experiences belong to man’s prehistory (to his `theological prehistory’) but that they are always at the root of every human experience. That is true even if in the evolution of ordinary human existence, little attention is paid to these essential experiences. They are so intermingled with the ordinary things of life that we do not generally notice their extraordinary character.”
What is the “Original experience”?Answer: “The Original Solitude”. Adam (not “man” as male) experiences that “he” is alone because he experiences that his body is that of a person, and not of a “thing.” This happens as the result of his obedience to the Creator in naming the animals, which is one of the primordial forms of subduing the earth. The earth becomes private property as ownership insofar as one subdues it. To name something is to subdue it and own it.
In order to name the animal, it must be sensed through the body. The act of naming is not merely a speculative act of abstracting from sensation, but the subjective act of subduing oneself (as taken from the slime of the earth) and determining oneself to freely obey. The act of naming involves the whole person as enfleshed designating this and that animal to be named thus and so. Adam experienced himself to be “I” - flesh rather than animal flesh (revealed when he exclaimed on seeing the woman: “This at last is bone of my bones and flesh of my flesh” (Gen. 2, 23).
Human flesh is the flesh of a person, of a subject: “I.” This obedience in working, in naming the animals, is the absolute primordial experience of the human being, which culminates in being alone. It precedes the creation of sexuality, of recreating Adam into male and female. This in turn is the prelude to the act of imaging God (“We”) in the one-flesh union of the two.
Notice that sex takes its meaning from being a person, a subject (female) who is irreducible to being another subject (male) as expressed in the body. The irreducible difference in the bodies of the male and female expresses the irreducible difference in the persons of the man and the woman. Hence, in the absolutely primordial experience of the human being, male and female, as being equal cannot be collapsed into the abstraction of sameness.
“The account of the creation of the man is a separate passage (Gn. 2, 7). It precedes the account of the creation of the first woman (Gn. 2, 21-22). It is also significant that the first man (`adam), created from the dust of the ground,’ is defined as a `male’ (is) only after the creation of the first woman. So when God-Yahweh speaks the words about solitude, it is in reference to the solitude of `man’ as such, and not just to that of the male.” Footnote 9 says, “The Hebrew text constantly calls the first man ha-`adam, while the term `is’ (“male”) is introduced only when contrasted with `issa’ (“female”). So `man’ was solitary without reference to sex” Man and Woman Image God (and therefore are who they are) Only as a Communion of Persons: Hence, the meaning of Person as “gift of self.”
“In the first chapter, the narrative of the creation of man affirms directly, right from the beginning, that man was created in the image of God as male and female. The narrative of the second chapter, on the other hand, does not speak of the `image of God.’ But in its own way it reveals that the complete and definitive creation of `man’ (subjected first tot eh experience of original solitude) is expressed in giving life to that communion personarum that man and woman form. In this way, the Yahwist narrative agrees with the content of the first narrative.
If, vice versa, we wish to draw also from the narrative of the Yahwist text the concept of `image of God,’ we can then deduce that man became the `image and likeness’ of God not only through his own humanity, but also through the communion of persons which man and woman form right from the beginning. The function of the image is to reflect the one who is the model, to reproduce its own prototype. Man becomes the image of God not so much in the moment of solitude as in the moment of communion. Right `from the beginning,’ he is not only an image in which the solitude of a Person who rules the world is reflected, but also, and essentially, an image oaf an inscrutable divine communion of persons.
In this way, the second narrative could also be as preparation for understanding the Trinitarian concept of the `image of God,’ even if the latter appears only in the first narrative. Obviously, that is not without significance for the theology of the body. Perhaps it even constitutes the deepest theological aspect of all that can be said about man. In the mystery of creation on the basis of the original and constituent `solitude’ of his being – man was endowed with a deep unity between what is, humanly and through the body, male in him and what is, equally humanly and through the body, female in him. On all this, right from the beginning, the blessing of fertility descended, linked with human procreation (cf. Gn. 1, 28).
In this way, we find ourselves almost at the heart of the anthropological reality that has the name `body.’”
Wednesday, February 23, 2005
Does God Really Exist?
A talk by Father Robert Connor
For the Augustine Club at Columbia University
Atheism is a Post-Christian Phenomenon: Judeo-Christian revelation affirmed the transcendence of a creating God and he immanence of a created cosmos.
"Atheism in the proper sense, which denies everything divine, became possible only in the modern age. It presupposes Christianity and to that extent is a post-Christian phenomenon. The biblical faith in creation had broken with the numinous conception of the world that was current in antiquity and had effected a denuminization of reality by distinguishing clearly and unambiguously between God the creator and the world as his creation. In so doing, the Bible thought of the world in worldly terms and God in divine terms and of the two as qualitatively distinct in infinite degree. Only when God had been conceived as radically God was it possible also to deny him in a radical way. Only when the transcendence of God had been taken seriously did it become possible to experience the immanence of the world, and only after the world had been acknowledged simply as world could it become the object of objectifying scientific study and technical transfor- mation. The way was being prepared for this kind of autonomous understanding of the world as early as the twelfth and thirteenth centuries. But the autonomy of the world, based as it was on the idea of creation, remained part of a total context that was theonomous; in fact, the autonomy itself was given a theonomous justification. On the other hand, the very emancipation of autonomy from its theonomous context and reference and thus the presupposition for the rise of modern atheism had theological causes. These were provided by late medieval Nominalism. Nominalism carried the idea of God's omnipotence and freedom to an extreme, turning him into an absolutist deity who acts in an arbitrary manner;" ("The God of Jesus Christ," Crossroad, 1986, pp. 16-17).
The reaction against an arbitrary God not creating nor acting through the Logos - intelligibly - but deceptively stimulates the rebellion of a non-theonomous autonomy of the subject characterized by the cartesian cogito "I think, therefore I am." The classic profile of the modern period begins in the presumption of non intelligibility of the world where the subject gives "names" to reality which do not correspond to anything real. The subject, then, is exalted replacing God as the source of meaning. This continues through the Enlightenment to Marxism where God is seen to be the alienation of the meaning of man and hence obliging renunciation in the name of humanity and being declared "dead" (Nietzsche). The "shape" of replacing God by the subject is a new immanentist trinity: the belief if progress, absolutized scientific-technical civilization and political messianism. Ratzinger remarks that
"The remarkable thing about this strange trinity is ... that this structure now replaces the concept of God and necessarily excludes it, since it takes its place. This systematic exclusion of the divine from the shaping of history and human life, referring to the definitiveness of scientific insight, is perhaps the genuinely new, and at the same time the truly threatening, element in that strange product of Europe that we call Marxism. I now assert that this same combination, in weaker forms, is active in the life of the Western world even outside Marxist thinking (he is talking of Western/American capitalism here). If it were to succeed in establishing itself definitively, this would ... be the end of what could make Europe a positive force in the world" (bold mine). (Turning Point For Europe? Ignatius, 1994, p. 125).
________________________________________
[Handwritten summary of stages:]
1. The World is God. He who accepts the evidence of the World accepts God. There is no Atheism, but Pantheism
2. The revelation of Creation splits the created world from the Creator. Both are accessible to reason: a) by the experience of perception and abstractive reasoning; b) by the moral experience of being an “I” imaging God. Both yield access to being, the latter more and differently than the former.
3. The revelation of the Judeo-Christian Creator clears the decks of the sensible world as God, opening it to the development of science. If God is totally trans-sensible - beyond the perception of the senses, and the Invisible God is denied, then radical Atheism enters for the first time: neither in the sensible world or beyond it. This is the Nietzschean modern period, the theological period of God-is-dead.
________________________________________
“Your question ultimately concerns Pascal’s distinction between the Absolute – that is, the God of the philosophers (the rationalist libertines) – and the God of Jesus Christ; and, prior to Him, the God of the Patriarchs -from Abraham to Moses. Only the God of Jesus Christ is the living God. As has also been stated in the Dogmatic Constitution on Divine Revelation Dei Verbum (no. 3), the first God mentioned above--the God of the philosophers--is the fruit of human thought, of human speculation, and capable of saying something valid about God. In the end, all rationalist arguments follow the path indicated in the Book of Wisdom and the Letter to the Romans--passing from the visible world to the invisible Absolute.
Aristotle and Plato follow this same path, but in a different manner. The Christian tradition before Thomas Aquinas, and therefore also Augustine, was tied to Plato, from whom it nonetheless rightfully wanted to distance itself. For Christians, the philosophical Absolute, considered as the First Being or Supreme Good, did not have great meaning. Why engage in philosophical speculations about God, they asked themselves, if the living God has spoken, not only by way of the Prophets but also through His own Son? The theology of the Fathers, especially in the East, broke away more and more from Plato and from philosophers in general. Philosophy itself, in the Fathers, ends up in theology (as in the case, for example, in modern times, of Vladimir Soloviev).
Saint Thomas, however, did not abandon the philosophers' approach. He began his Summa Theologica with the question "An Deus sit?"--"Does God exist?" (cf. 1, q.2, a.3). You ask the same question. This question has proven to be very useful. Not only did it create theodicy, but this question has reverberated throughout a highly developed Western civilization. Even if today, unfortunately, the Summa Theologica has been somewhat neglected, its initial question persists and continues to resound throughout our civilization. BUT The point of JPII: "the response to the question 'An Deus sit' is not only an issue that touches the intellect; it is, at the same time, an issue that has a strong impact on all of human existence. It depends on a multitude of situations in which man searches for the significance and the meaning of his own existence. Questioning God's existence is intimately united with the purpose of human existence. Not only is it a question of intellect; it is also a question of the will, even a question of the human heart (the raisons du coeur of Blaise Pascal). I think that it is wrong to maintain that Saint Thomas's position stands up only in the realm of the rational. One must, it is true, applaud Etienne Gilson when he agrees with Saint Thomas that the intellect is the most marvelous of God’s creations, but that does not mean that we must give in to a unilateral rationalism (my emphasis). Saint Thomas celebrates all the richness and complexity of each created being, and especially of the human being. It is not good that his thought has been set aside in the post-conciliar period; he continues, in fact, to be the master of philosophical and theological universalism. In this context, his, his quinque viae - that is, his "five ways" that lead toward a response to the question "An Deus sit?" - should be read (Crossing the Threshold of Hope 30-31).
The point is that the only being that is directly and unmediatedly experienced is the self in the moral (free) act of self-transcendence. The obedience of Christ to death on the Cross mimicked in us by the obedience of faith as self-gift is the prototype of the act. The being of the person expands as relation (self-gift) in such an act, and consciousness of being “like God” follows on that expansion. Witness the consciousness of Adam (notoriously mimicked by Helen Keller in naming the water) as being different from the rest of created “things” after his obedience to subdue the earth by naming the animals (the “original solitude”).
Contrarily, the act of disobedience (sin and selfishness) reduces the being of the person as expansive self-gift and correspondingly reduces the intelligence and consciousness of mystery into mere conceptualism and rationalism. Rationalism regresses into positivism, skepticism and finally into nihilism. Hence, the thesis: as Christian faith as gift of self evaporates in a society, reason loses its sense of mystery and decays into nihilism.
Hence, the question of God is not just a subject concerning the intellect in that the whole dynamic of the person as being is the privileged locus of the encounter of reason with being. Hence the ontological state of the person as affected by moral performance is critical for true-to-reality knowing. Ratzinger says:
"This restriction of reason has the result that we are left in almost total darkness regarding some essential dimensions of life. The meaning of man, the bases of ethics, the question of God cannot be subjected to rational experience, verified by mathematical formulae. And so they are left to subjective sensibility alone.”
The analysis of this within faith is the following: Man was created in the image of God with relational dimensions as has God. He was in a divinized state as image which consisted in obedience to the divine commands to subdue the earth, multiply and not eat the forbidden fruit. Disobeying that moral command severed the relation to God and hence damaged the ontological status as image. Man contracted from relation to autonomous individual and the real understanding he had of God was by way of experiencing himself as God's image. This was an experiential understanding he had of himself which was subjective and real. It was not idealist subjectivism but a realist experience of himself as "I" imaging the triple "I" of the Deity. It was an experience of the unfathomable mystery of God in himself within which he conceptualized about himself and exterior reality and was able to conceptually communicate with God and the woman.
"As a result of that mysterious original sin," says John Paul II, "committed at the prompting of Satan, the one who is a 'liar and the father of lies' (Jn. 8, 44), man is constantly tempted to turn his gaze away from the living and true God in order to direct it towards idols (cf. 1 Thes. 1, 9), exchanging 'the truth about God for a lie' (Rom 1, 25). Man's capacity to know the truth is also darkened, and his will to submit to it is weakened. Thus, giving himself over to relativism and skepticism (cf. Jn. 18, 38), he goes off in search of an illusory freedom apart from truth itself." (Veritatis Splendor #1).
There has been a systole and diastole of approximation to the original state of imaging God whereby reason is able to contemplate the fullness of reality as mystery. The systole is the development of relation throughout the Old Testament by faith and obedience to God and the commandments. The complete restoration is understood to be in Jesus Christ who is God himself who has taken the fallen humanity of the man Jesus and obeyed with it to death on the Cross, thus restoring the original perversion of the human will, the proof of which is the resurrection from the dead.
But that identification with Christ has had its highpoints (first 1300 years) and its diastole (low point)- particularly with regard to a lived faith during the last several centuries. The failure to live the faith is the explanation for the progressive passage from mystery, to rationalism, to positivism, to nihilism. That is, as the personalist/relational dimension of the human person diminishes the object of reason - the subject himself - diminishes. Thus, one literally grasps less of reality. In another context, Ratzinger remarks: "But ethics does not provide its own rational foundation. Even the ethics of the Enlightenment which still holds our states together lives on the after-effects of Christianity, which provided it with the foundations of its rationality and it internal cohesion. When the Christian foundations are removed completely nothings holds together any more...
"What is essential is that reason shut in on itself does not remain reasonable or rational, just as the state that aims at being perfect becomes tyrannical. Reason needs revelation in order to be able to be effective as reason. The connection between the state and its Christian foundations is imperative precisely if it is to remain the state and be pluralist" (bold mine) (“A Christian Orientation in a Pluralist Society, in Church, Ecumenism and Politics.” Crossroad, 1988, pp. 217-218).
POSITIVISM: ("Crossing..." p. 33)
Is man truly capable of knowing something beyond what he sees with his eyes or hears with his ears? Does some kind of knowledge other than the strictly empirical exist? Is the human capacity for reason completely subject to the senses and internally directed by the laws of mathematics, which have been shown to be particularly useful in the rational ordering of phenomena and for guiding technical progress?
If we put ourselves in the positivist perspective, concepts such as God or the soul simply lose meaning. In terms of sensory experience, in fact, nothing corresponds to God or the soul. The great cognitive error here consists in the reduction of the capacity of the intellect to judge mere "FACTS" ABOUT REALITY. But FACTS are judgments ABOUT reality. They are not an experience of being but a pointing AT being THROUGH ABSTRACTIVE PERCEPTION and go about identifying subject and predicate. FACTS [therefore] are abstractions, a very weak and mediated experience of reality that can crash, and is devolving into Nihilism:
Cognitive realism, both so-called naive realism and critical realism, agrees that "nihil est in intellectu, quod prius non fuerit in sensu" ("nothing is in the intellect that was not first in the senses"). Nevertheless, the limits of these "senses" are not exclusively sen sory. We know, in fact, that man not only knows colors, tones, and forms; he also knows objects globally--for example, not only all the parts that comprise the object "man" but also man in himself (yes, man as a person). He knows, therefore, extrasensory truths, or, in other words, the transempirical. In addition, it is not possible to affirm that when something is transempirical it ceases to be empirical.
Experiencing God By the Direct Experience of Self-Transcending.
This disclosure of the experience of the “I” – not as “consciousness” as in Descartes – but as Being is the unique work of John Paul II as believer/philosopher. It appears full blown in the “Acting Person” where he solves the riddle of the impasse between thought and things that has left us with the bogus alternatives and irresolvable conundra of natural/supernatural, grace/nature, church/state, contingent singular/absolute universal, science/religion…. The “I” needs to be loved (grace) in order to be and to act; the “I” is simultaneously “faithful” of the Church and citizen of the body politic; the unique “I” as privileged locus of being is supremely intelligible and not meaningless “fact,” etc. etc. The following are the significant sites of his thought:
Perhaps, the analytical genius of Wojtyla comes to the fore precisely here. The “I” is being, not consciousness. But the experience which discloses the “I” as being is the work of consciousness. He distinguishes the consciousness of the experience of sensible things - which is taken from the experience (sensible perception) of the external world: this pink cloud – from the consciousness of the experience of the self (“I”) in the act of self-determination in the moment of morality: responsibility or guilt. In its (non abstractive) mirroring function, consciousness grasps the subject (not yet experienced as “I”), which has been objectified by reflective (not “reflexive,” in the terminology of Wojtyla) thought, and then “actualized” (subdued/mastered) by itself. He distinguishes between the reflectiveness of the mind turning back on its own act of knowing things and the reflexiveness of consciousness which captures both the reflections of the subject in potency to self-determine, and in the act of moving itself. This capturing both states of the self as pre and post self-determination, as potency and act with respect to itself, constitutes the experience of the “I” as “I.” And he corroborates this when he remarks in Fides et Ratio #83 that “In a special way, the person constitutes a privileged locus for the encounter with being, and hence with metaphysical enquiry.”
He remarks in the Acting Person:
“The consequence of the reflexive turn of consciousness is that this object – just because it is from the ontological point of view the subject – while having the experience of his own ego also has the experience of himself as the subject. In this interpretation `refexiveness’ is also seen to be an essential as well as a very specific moment of consciousness. It is, however, necessary to add at once that this specific moment becomes apparent only when we observe and trace consciousness in its intrinsic, organic relation to the human being, in particular, the human being in action. We then discern clearly that it is one thing to be the subject, another to be cognized (that is, objectivized) as the subject, and a still different thing to experience one’s self as the subject of one’s own acts and experiences… This discrimination is of tremendous import for all our further analyses, which we shall have to make in our efforts to grasp the whole dynamic reality of the acting person and to account for the subjectiveness that is given us in experience.
“Indubitably, Man is, first of all, the subject of his being and his acting; he is the subject insofar as he is a being of determinate nature, which leads to consequences particularly in the acting. In traditional ontology that subject of existing and acting which man is was designated by the term supposed – ontic support – which, we may say, serves as a thoroughly objective designation free of any experiential aspects, in particular of any relation to that experience of subjectivity in which the subject is given to itself as the self, as the ego. Hence suppositum abstracts from that aspect of consciousness owing to which the concrete man – the object being the subject – has the experience of himself as the subject and thus of his subjectivity. It is this experience that allows him to designate himself by means of the pronoun I. We know I to be a personal pronoun, always designating a concrete person. However, the denotation of this personal pronoun, thus….
“Hence not only am I conscious of my ego (on the ground of self-knowledge) but owing to my consciousness in its reflexive function I also experience my ego. I have the experience of myself as the concrete subject of the ego’s very subjectiveness. Consciousness is not just an aspect but also an essential dimension or an actual moment of the reality of the being that I am, since it constitutes its subjectiveness in the experiential sense.” ****** It is important to go back to see that the original recovery of the “I” as “alone” - “from the beginning” - was precisely in the experience of subduing the self (self-determination) on the occasion of work (naming the animals and tilling the garden). Then, God reveals the axiology of the person: “It is not good for man to be alone.” The re-creation of man as male and female is the occasion for them both to increase in their ontological density as “I” by the respective subduing of self to be gift to each other. The failure to subdue the self was the fact of sin that constituted the loss of the experience of imaging the Three. Man lost the experience of the “I” and forgot who he was. Go to Percy’s “Lost in the Cosmos.”
Wojtyla/John Paul II explicitly links the Magisterial GS #24 with his understanding of self-determination: Hence: The Personal Structure of Self-Determination: …. This must be connected now to prayer as the supreme act of self-transcendence. Hence, Ratzinger:
Prayer as the Experience of God In Myself
“Thesis 3: Since the center of the person of Jesus is prayer, it is essential to participate in his prayer if we are to know and understand him.
Let us begin here with a general matter of epistemology. By nature, knowledge depends on a certain similarity between the knower and the known. The old axiom is that like is known by like. In matters of the mina and where persons are concerned, this means that knowledge calls for a certain degree of empathy, by which we enter, so to speak, into the person or intellectual reality concerned, become one with him or it, and thus become able to understand (intellegere = ab intus legere).
We can illustrate this with a couple of examples. Philosophy can only be acquired if we philosophize, if we carry through the process of philosophical thought; mathematics can only be appropriated if we think mathematically; medicine can only be learned in the practice of healing, never merely by means of books and reflection. Similarly, religion can only be understood through religion --an undisputed axiom in more recent philosophy of religion. The fundamental act of religion is prayer which in the Christian religion acquires a very specific character; it is the act of self-surrender by which we enter the Body of Christ. Thus it is an act of love. As love, in and with the Body of Christ, it is always both love of God and love of neighbor, knowing and fulfilling itself as love for the members of this Body.
In Thesis 1 we saw that prayer was the central act of the person of Jesus and, indeed, that this person is constituted by the act of prayer, of unbroken communi- cation with the one he calls "Father". If this is the case, it is; only possible really to understand this person by entering into this act of prayer; by participating in it. This is suggested by Jesus' saying that no one can come to him unless the Father draws him (Jn 6:44). Where there is no Father, there is no Son. Where there is no relationship with God, there can be no understanding of him who, in his innermost self, is nothing but relation- ship with God, the Father--although one can doubtless establish plenty of details about him. Therefore a participation in the mind of Jesus, i.e., in his prayer, which (as wc have seen) is an act of love, of self-giving and self-expropriation to men, is not some kind of pious supplement to reading the Gospels, adding nothing to knowledge of him or even being an obstacle to the rigorous purity of critical knowing. On the contrary, it is the basic precondition if real understanding, in the sense of modern hermeneutics--i.e., the entering-in to the same time and the same meaning-- is to take place.
The New Testament continually reveals this state of affairs and thus provides the foundation for a theological epistemology. Here is simply one example: when Ananias was sent to Paul to receive him into the Church, he was reluctant and suspicious of Paul; the reason given to him was this: go to him "for he is praying" (Acts 9:11)…. Paul is moving toward the moment when he will be freed from blindness and will begin to see, not only exteriorly, but interiorly as well. The person who prays begins to see; praying and seeing go together because-- Richard of St. Victor says--"Love is the faculty of seeing". Real advances in Christology, therefore, can never come merely as the result of the theology of the schools, and that includes the modern theology as we find it in critical exegesis, in the history of doctrine and in an anthropology oriented toward the human sciences, etc. All this is important, as important as schools are. But it is insufficient. It must be complemented by the theology of the saints, which is theology from experience. All real progress in theological understanding has its origin in the eye of love and in its faculty of beholding (J.Ratzinger, "Behold the Pierced One" Ignatius 1986, pp. 25-27).
Of what? Of the call to cross the threshold of hope...: " following Jesus Christ so closely that you become one and the same thing with Him. "Do not be afraid of God who became a man! It was precisely this that Peter said at Caesarea Philippi: 'You are the Messiah, the Son of the living God' (Mt. 16,16). Indirectly He affirmed: You are the Son of God who became a man. Peter was not afraid to say it, even if these words did not come from him. They came from the Father. 'No one knows the Son except the Father; ...(cf. Mt. 11, 27).
"Peter was not afraid of God who had become a man. He was afraid, instead, for the Son of God as a man. Peter could not accept that He would be whipped and crowned with thorns and finally crucified. Peter could not accept that. He was afraid. And for this Christ severely reproached him, but He did not reject him" (p. 7).
Returning to p. 222: "Peoples and nations of the entire world need to hear these words. Their conscience needs to grow in the certainty that Someone exists who holds in His hands the destiny of this passing world; Someone who holds the keys to death and the netherworld (cf. Rev. 1, 18); Someone who is the Alpha and the Omega of human history (cf. Rev. 22,13) - be it the individual or collective history. And this Someone is Love (cf. I Jn. 4, 8,16) - Love that became man, Love crucified and risen, Love unceasingly present among men. It is Eucharistic Love. It is the infinite source of communion. He alone can give the ultimate assurance when He says 'Be not afraid!'
Crossing of the threshold seems to mean bursting out of being retained within the individualism of the self. It means stepping out of oneself to serve the others... To do that, one experiences being Christ and therefore is able to say: "Father!" He is the God of Jesus Christ.
For the Augustine Club at Columbia University
ATHEISM
"Atheism in the strict sense of the word came into existence only in the modern age...
"Atheism ... rejects any and every claim that God or the divine exists..."(N)o primitive people is unqualifiedly atheistic, since among all primitive peoples there is some kind of an idea of a worship of a divine reality. Even the high religions of Asia that do not acknowledge a personal absolute (Buddhism, Taoism) are not atheistic, as is often mistakenly claimed. By reason of its conception of the world as numinous, classical antiquity likewise did not have any atheists in the sense describe above.
Atheism is a Post-Christian Phenomenon: Judeo-Christian revelation affirmed the transcendence of a creating God and he immanence of a created cosmos.
"Atheism in the proper sense, which denies everything divine, became possible only in the modern age. It presupposes Christianity and to that extent is a post-Christian phenomenon. The biblical faith in creation had broken with the numinous conception of the world that was current in antiquity and had effected a denuminization of reality by distinguishing clearly and unambiguously between God the creator and the world as his creation. In so doing, the Bible thought of the world in worldly terms and God in divine terms and of the two as qualitatively distinct in infinite degree. Only when God had been conceived as radically God was it possible also to deny him in a radical way. Only when the transcendence of God had been taken seriously did it become possible to experience the immanence of the world, and only after the world had been acknowledged simply as world could it become the object of objectifying scientific study and technical transfor- mation. The way was being prepared for this kind of autonomous understanding of the world as early as the twelfth and thirteenth centuries. But the autonomy of the world, based as it was on the idea of creation, remained part of a total context that was theonomous; in fact, the autonomy itself was given a theonomous justification. On the other hand, the very emancipation of autonomy from its theonomous context and reference and thus the presupposition for the rise of modern atheism had theological causes. These were provided by late medieval Nominalism. Nominalism carried the idea of God's omnipotence and freedom to an extreme, turning him into an absolutist deity who acts in an arbitrary manner;" ("The God of Jesus Christ," Crossroad, 1986, pp. 16-17).
The reaction against an arbitrary God not creating nor acting through the Logos - intelligibly - but deceptively stimulates the rebellion of a non-theonomous autonomy of the subject characterized by the cartesian cogito "I think, therefore I am." The classic profile of the modern period begins in the presumption of non intelligibility of the world where the subject gives "names" to reality which do not correspond to anything real. The subject, then, is exalted replacing God as the source of meaning. This continues through the Enlightenment to Marxism where God is seen to be the alienation of the meaning of man and hence obliging renunciation in the name of humanity and being declared "dead" (Nietzsche). The "shape" of replacing God by the subject is a new immanentist trinity: the belief if progress, absolutized scientific-technical civilization and political messianism. Ratzinger remarks that
"The remarkable thing about this strange trinity is ... that this structure now replaces the concept of God and necessarily excludes it, since it takes its place. This systematic exclusion of the divine from the shaping of history and human life, referring to the definitiveness of scientific insight, is perhaps the genuinely new, and at the same time the truly threatening, element in that strange product of Europe that we call Marxism. I now assert that this same combination, in weaker forms, is active in the life of the Western world even outside Marxist thinking (he is talking of Western/American capitalism here). If it were to succeed in establishing itself definitively, this would ... be the end of what could make Europe a positive force in the world" (bold mine). (Turning Point For Europe? Ignatius, 1994, p. 125).
________________________________________
[Handwritten summary of stages:]
1. The World is God. He who accepts the evidence of the World accepts God. There is no Atheism, but Pantheism
2. The revelation of Creation splits the created world from the Creator. Both are accessible to reason: a) by the experience of perception and abstractive reasoning; b) by the moral experience of being an “I” imaging God. Both yield access to being, the latter more and differently than the former.
3. The revelation of the Judeo-Christian Creator clears the decks of the sensible world as God, opening it to the development of science. If God is totally trans-sensible - beyond the perception of the senses, and the Invisible God is denied, then radical Atheism enters for the first time: neither in the sensible world or beyond it. This is the Nietzschean modern period, the theological period of God-is-dead.
________________________________________
Does God Really Exist?
(The mind of John Paul II: Crossing the Threshold of Hope,Knopf (1994) 28-29)
“Your question ultimately concerns Pascal’s distinction between the Absolute – that is, the God of the philosophers (the rationalist libertines) – and the God of Jesus Christ; and, prior to Him, the God of the Patriarchs -from Abraham to Moses. Only the God of Jesus Christ is the living God. As has also been stated in the Dogmatic Constitution on Divine Revelation Dei Verbum (no. 3), the first God mentioned above--the God of the philosophers--is the fruit of human thought, of human speculation, and capable of saying something valid about God. In the end, all rationalist arguments follow the path indicated in the Book of Wisdom and the Letter to the Romans--passing from the visible world to the invisible Absolute.
Aristotle and Plato follow this same path, but in a different manner. The Christian tradition before Thomas Aquinas, and therefore also Augustine, was tied to Plato, from whom it nonetheless rightfully wanted to distance itself. For Christians, the philosophical Absolute, considered as the First Being or Supreme Good, did not have great meaning. Why engage in philosophical speculations about God, they asked themselves, if the living God has spoken, not only by way of the Prophets but also through His own Son? The theology of the Fathers, especially in the East, broke away more and more from Plato and from philosophers in general. Philosophy itself, in the Fathers, ends up in theology (as in the case, for example, in modern times, of Vladimir Soloviev).
Saint Thomas, however, did not abandon the philosophers' approach. He began his Summa Theologica with the question "An Deus sit?"--"Does God exist?" (cf. 1, q.2, a.3). You ask the same question. This question has proven to be very useful. Not only did it create theodicy, but this question has reverberated throughout a highly developed Western civilization. Even if today, unfortunately, the Summa Theologica has been somewhat neglected, its initial question persists and continues to resound throughout our civilization. BUT The point of JPII: "the response to the question 'An Deus sit' is not only an issue that touches the intellect; it is, at the same time, an issue that has a strong impact on all of human existence. It depends on a multitude of situations in which man searches for the significance and the meaning of his own existence. Questioning God's existence is intimately united with the purpose of human existence. Not only is it a question of intellect; it is also a question of the will, even a question of the human heart (the raisons du coeur of Blaise Pascal). I think that it is wrong to maintain that Saint Thomas's position stands up only in the realm of the rational. One must, it is true, applaud Etienne Gilson when he agrees with Saint Thomas that the intellect is the most marvelous of God’s creations, but that does not mean that we must give in to a unilateral rationalism (my emphasis). Saint Thomas celebrates all the richness and complexity of each created being, and especially of the human being. It is not good that his thought has been set aside in the post-conciliar period; he continues, in fact, to be the master of philosophical and theological universalism. In this context, his, his quinque viae - that is, his "five ways" that lead toward a response to the question "An Deus sit?" - should be read (Crossing the Threshold of Hope 30-31).
The point is that the only being that is directly and unmediatedly experienced is the self in the moral (free) act of self-transcendence. The obedience of Christ to death on the Cross mimicked in us by the obedience of faith as self-gift is the prototype of the act. The being of the person expands as relation (self-gift) in such an act, and consciousness of being “like God” follows on that expansion. Witness the consciousness of Adam (notoriously mimicked by Helen Keller in naming the water) as being different from the rest of created “things” after his obedience to subdue the earth by naming the animals (the “original solitude”).
Contrarily, the act of disobedience (sin and selfishness) reduces the being of the person as expansive self-gift and correspondingly reduces the intelligence and consciousness of mystery into mere conceptualism and rationalism. Rationalism regresses into positivism, skepticism and finally into nihilism. Hence, the thesis: as Christian faith as gift of self evaporates in a society, reason loses its sense of mystery and decays into nihilism.
Hence, the question of God is not just a subject concerning the intellect in that the whole dynamic of the person as being is the privileged locus of the encounter of reason with being. Hence the ontological state of the person as affected by moral performance is critical for true-to-reality knowing. Ratzinger says:
"This restriction of reason has the result that we are left in almost total darkness regarding some essential dimensions of life. The meaning of man, the bases of ethics, the question of God cannot be subjected to rational experience, verified by mathematical formulae. And so they are left to subjective sensibility alone.”
The analysis of this within faith is the following: Man was created in the image of God with relational dimensions as has God. He was in a divinized state as image which consisted in obedience to the divine commands to subdue the earth, multiply and not eat the forbidden fruit. Disobeying that moral command severed the relation to God and hence damaged the ontological status as image. Man contracted from relation to autonomous individual and the real understanding he had of God was by way of experiencing himself as God's image. This was an experiential understanding he had of himself which was subjective and real. It was not idealist subjectivism but a realist experience of himself as "I" imaging the triple "I" of the Deity. It was an experience of the unfathomable mystery of God in himself within which he conceptualized about himself and exterior reality and was able to conceptually communicate with God and the woman.
"As a result of that mysterious original sin," says John Paul II, "committed at the prompting of Satan, the one who is a 'liar and the father of lies' (Jn. 8, 44), man is constantly tempted to turn his gaze away from the living and true God in order to direct it towards idols (cf. 1 Thes. 1, 9), exchanging 'the truth about God for a lie' (Rom 1, 25). Man's capacity to know the truth is also darkened, and his will to submit to it is weakened. Thus, giving himself over to relativism and skepticism (cf. Jn. 18, 38), he goes off in search of an illusory freedom apart from truth itself." (Veritatis Splendor #1).
There has been a systole and diastole of approximation to the original state of imaging God whereby reason is able to contemplate the fullness of reality as mystery. The systole is the development of relation throughout the Old Testament by faith and obedience to God and the commandments. The complete restoration is understood to be in Jesus Christ who is God himself who has taken the fallen humanity of the man Jesus and obeyed with it to death on the Cross, thus restoring the original perversion of the human will, the proof of which is the resurrection from the dead.
But that identification with Christ has had its highpoints (first 1300 years) and its diastole (low point)- particularly with regard to a lived faith during the last several centuries. The failure to live the faith is the explanation for the progressive passage from mystery, to rationalism, to positivism, to nihilism. That is, as the personalist/relational dimension of the human person diminishes the object of reason - the subject himself - diminishes. Thus, one literally grasps less of reality. In another context, Ratzinger remarks: "But ethics does not provide its own rational foundation. Even the ethics of the Enlightenment which still holds our states together lives on the after-effects of Christianity, which provided it with the foundations of its rationality and it internal cohesion. When the Christian foundations are removed completely nothings holds together any more...
"What is essential is that reason shut in on itself does not remain reasonable or rational, just as the state that aims at being perfect becomes tyrannical. Reason needs revelation in order to be able to be effective as reason. The connection between the state and its Christian foundations is imperative precisely if it is to remain the state and be pluralist" (bold mine) (“A Christian Orientation in a Pluralist Society, in Church, Ecumenism and Politics.” Crossroad, 1988, pp. 217-218).
POSITIVISM: ("Crossing..." p. 33)
Is man truly capable of knowing something beyond what he sees with his eyes or hears with his ears? Does some kind of knowledge other than the strictly empirical exist? Is the human capacity for reason completely subject to the senses and internally directed by the laws of mathematics, which have been shown to be particularly useful in the rational ordering of phenomena and for guiding technical progress?
If we put ourselves in the positivist perspective, concepts such as God or the soul simply lose meaning. In terms of sensory experience, in fact, nothing corresponds to God or the soul. The great cognitive error here consists in the reduction of the capacity of the intellect to judge mere "FACTS" ABOUT REALITY. But FACTS are judgments ABOUT reality. They are not an experience of being but a pointing AT being THROUGH ABSTRACTIVE PERCEPTION and go about identifying subject and predicate. FACTS [therefore] are abstractions, a very weak and mediated experience of reality that can crash, and is devolving into Nihilism:
“The real untruth of the world view of which drugs and terrorism are symptoms consists in the reduction of the world to facts and in the narrowing-down of reason to perception of what is quantitative. That which is most specific to man is shoved aside into the subjective realm and thus lacks reality. The "abolition of man", which results from the attribution of absoluteness to one single mode of knowledge, at the same time clearly falsifies this world view. Man exists, and anyone who, on the strength of his own theory, has to pull man down into the sphere of a machine that is "seen through" and can be assembled lives in a construction of perception that misses precisely what is essential (J. Ratzinger, Turning Point for Europe, Ignatius, 1994, 35) (underline mine).RECOVERY OF EPISTEMOLOGICAL REALISM: FAITH AS SELF-TRANSCENDENCE
Cognitive realism, both so-called naive realism and critical realism, agrees that "nihil est in intellectu, quod prius non fuerit in sensu" ("nothing is in the intellect that was not first in the senses"). Nevertheless, the limits of these "senses" are not exclusively sen sory. We know, in fact, that man not only knows colors, tones, and forms; he also knows objects globally--for example, not only all the parts that comprise the object "man" but also man in himself (yes, man as a person). He knows, therefore, extrasensory truths, or, in other words, the transempirical. In addition, it is not possible to affirm that when something is transempirical it ceases to be empirical.
Experiencing God By the Direct Experience of Self-Transcending.
“It is therefore possible to speak from a solid foundation about human experience, moral experience, or religious experience. And if it is possible to speak of such experiences, it is difficult to deny that, in the realm of human experience, one also finds good and evil, truth and beauty, and God. God Himself certainly is not an object of human empiricism; the Sacred Scripture, in its own way, emphasizes this: "No one has ever seen God" (cf. Jn 1:18). If God is a knowable object--as both the Book of Wisdom and the Letter to the Romans teach--He is such on the basis of man's experience both of the visible world and of his interior world. This is the point of departure for Immanuel Kant's study of ethical experience in which he abandons the old approach found in the writings of the Bible and of Saint Thomas Aquinas. Man recognizes himself as an ethical being, capable of acting according to criteria of good and evil, and not only those of profit and pleasure. He also recognizes himself as a religious being, capable of putting himself in contact with God. Prayer--of which we talked earlier--is in a certain sense the first verification of such a reality…(underline mine)
“And we find ourselves by now very close to Saint Thomas, but the path passes not so much through being and existence as through people and their meeting each other, through the "I" and the "Thou." This is a fundamental dimension of man's existence, which is always a co-existence… Such co-existence is essential to our Judeo-Christian tradition and comes from God’s initiative. This initiative is connected with and leads to creation, and is at the same time – Saint Paul teaches - `the eternal election of man in the Word who is the Son (cf. Eph. 1, 4).” (Crossing… 34, 36)
This disclosure of the experience of the “I” – not as “consciousness” as in Descartes – but as Being is the unique work of John Paul II as believer/philosopher. It appears full blown in the “Acting Person” where he solves the riddle of the impasse between thought and things that has left us with the bogus alternatives and irresolvable conundra of natural/supernatural, grace/nature, church/state, contingent singular/absolute universal, science/religion…. The “I” needs to be loved (grace) in order to be and to act; the “I” is simultaneously “faithful” of the Church and citizen of the body politic; the unique “I” as privileged locus of being is supremely intelligible and not meaningless “fact,” etc. etc. The following are the significant sites of his thought:
The Methodology of Wojtyla Enabling This Disclosure of the “I” As Gift: The Experience of Self-Determination.
“But as the need increases to understand the human being as a unique and unrepeatable person, especially in terms of the whole dynamism of action and inner happenings proper to the human being – in other words, as the need increases to understand the personal subjectivity of the human being – the category of lived experience takes on greater significance, and, in fact, key significance. For then the issue is not just the metaphysical objectification of the human being as an acting subject, as the agent of acts, but the revelation of the person as a subject experiencing its acts and inner happenings, and with them its own subjectivity."
Perhaps, the analytical genius of Wojtyla comes to the fore precisely here. The “I” is being, not consciousness. But the experience which discloses the “I” as being is the work of consciousness. He distinguishes the consciousness of the experience of sensible things - which is taken from the experience (sensible perception) of the external world: this pink cloud – from the consciousness of the experience of the self (“I”) in the act of self-determination in the moment of morality: responsibility or guilt. In its (non abstractive) mirroring function, consciousness grasps the subject (not yet experienced as “I”), which has been objectified by reflective (not “reflexive,” in the terminology of Wojtyla) thought, and then “actualized” (subdued/mastered) by itself. He distinguishes between the reflectiveness of the mind turning back on its own act of knowing things and the reflexiveness of consciousness which captures both the reflections of the subject in potency to self-determine, and in the act of moving itself. This capturing both states of the self as pre and post self-determination, as potency and act with respect to itself, constitutes the experience of the “I” as “I.” And he corroborates this when he remarks in Fides et Ratio #83 that “In a special way, the person constitutes a privileged locus for the encounter with being, and hence with metaphysical enquiry.”
He remarks in the Acting Person:
“The consequence of the reflexive turn of consciousness is that this object – just because it is from the ontological point of view the subject – while having the experience of his own ego also has the experience of himself as the subject. In this interpretation `refexiveness’ is also seen to be an essential as well as a very specific moment of consciousness. It is, however, necessary to add at once that this specific moment becomes apparent only when we observe and trace consciousness in its intrinsic, organic relation to the human being, in particular, the human being in action. We then discern clearly that it is one thing to be the subject, another to be cognized (that is, objectivized) as the subject, and a still different thing to experience one’s self as the subject of one’s own acts and experiences… This discrimination is of tremendous import for all our further analyses, which we shall have to make in our efforts to grasp the whole dynamic reality of the acting person and to account for the subjectiveness that is given us in experience.
“Indubitably, Man is, first of all, the subject of his being and his acting; he is the subject insofar as he is a being of determinate nature, which leads to consequences particularly in the acting. In traditional ontology that subject of existing and acting which man is was designated by the term supposed – ontic support – which, we may say, serves as a thoroughly objective designation free of any experiential aspects, in particular of any relation to that experience of subjectivity in which the subject is given to itself as the self, as the ego. Hence suppositum abstracts from that aspect of consciousness owing to which the concrete man – the object being the subject – has the experience of himself as the subject and thus of his subjectivity. It is this experience that allows him to designate himself by means of the pronoun I. We know I to be a personal pronoun, always designating a concrete person. However, the denotation of this personal pronoun, thus….
“Hence not only am I conscious of my ego (on the ground of self-knowledge) but owing to my consciousness in its reflexive function I also experience my ego. I have the experience of myself as the concrete subject of the ego’s very subjectiveness. Consciousness is not just an aspect but also an essential dimension or an actual moment of the reality of the being that I am, since it constitutes its subjectiveness in the experiential sense.” ****** It is important to go back to see that the original recovery of the “I” as “alone” - “from the beginning” - was precisely in the experience of subduing the self (self-determination) on the occasion of work (naming the animals and tilling the garden). Then, God reveals the axiology of the person: “It is not good for man to be alone.” The re-creation of man as male and female is the occasion for them both to increase in their ontological density as “I” by the respective subduing of self to be gift to each other. The failure to subdue the self was the fact of sin that constituted the loss of the experience of imaging the Three. Man lost the experience of the “I” and forgot who he was. Go to Percy’s “Lost in the Cosmos.”
Wojtyla/John Paul II explicitly links the Magisterial GS #24 with his understanding of self-determination: Hence: The Personal Structure of Self-Determination: …. This must be connected now to prayer as the supreme act of self-transcendence. Hence, Ratzinger:
Prayer as the Experience of God In Myself
“Thesis 3: Since the center of the person of Jesus is prayer, it is essential to participate in his prayer if we are to know and understand him.
Let us begin here with a general matter of epistemology. By nature, knowledge depends on a certain similarity between the knower and the known. The old axiom is that like is known by like. In matters of the mina and where persons are concerned, this means that knowledge calls for a certain degree of empathy, by which we enter, so to speak, into the person or intellectual reality concerned, become one with him or it, and thus become able to understand (intellegere = ab intus legere).
We can illustrate this with a couple of examples. Philosophy can only be acquired if we philosophize, if we carry through the process of philosophical thought; mathematics can only be appropriated if we think mathematically; medicine can only be learned in the practice of healing, never merely by means of books and reflection. Similarly, religion can only be understood through religion --an undisputed axiom in more recent philosophy of religion. The fundamental act of religion is prayer which in the Christian religion acquires a very specific character; it is the act of self-surrender by which we enter the Body of Christ. Thus it is an act of love. As love, in and with the Body of Christ, it is always both love of God and love of neighbor, knowing and fulfilling itself as love for the members of this Body.
In Thesis 1 we saw that prayer was the central act of the person of Jesus and, indeed, that this person is constituted by the act of prayer, of unbroken communi- cation with the one he calls "Father". If this is the case, it is; only possible really to understand this person by entering into this act of prayer; by participating in it. This is suggested by Jesus' saying that no one can come to him unless the Father draws him (Jn 6:44). Where there is no Father, there is no Son. Where there is no relationship with God, there can be no understanding of him who, in his innermost self, is nothing but relation- ship with God, the Father--although one can doubtless establish plenty of details about him. Therefore a participation in the mind of Jesus, i.e., in his prayer, which (as wc have seen) is an act of love, of self-giving and self-expropriation to men, is not some kind of pious supplement to reading the Gospels, adding nothing to knowledge of him or even being an obstacle to the rigorous purity of critical knowing. On the contrary, it is the basic precondition if real understanding, in the sense of modern hermeneutics--i.e., the entering-in to the same time and the same meaning-- is to take place.
The New Testament continually reveals this state of affairs and thus provides the foundation for a theological epistemology. Here is simply one example: when Ananias was sent to Paul to receive him into the Church, he was reluctant and suspicious of Paul; the reason given to him was this: go to him "for he is praying" (Acts 9:11)…. Paul is moving toward the moment when he will be freed from blindness and will begin to see, not only exteriorly, but interiorly as well. The person who prays begins to see; praying and seeing go together because-- Richard of St. Victor says--"Love is the faculty of seeing". Real advances in Christology, therefore, can never come merely as the result of the theology of the schools, and that includes the modern theology as we find it in critical exegesis, in the history of doctrine and in an anthropology oriented toward the human sciences, etc. All this is important, as important as schools are. But it is insufficient. It must be complemented by the theology of the saints, which is theology from experience. All real progress in theological understanding has its origin in the eye of love and in its faculty of beholding (J.Ratzinger, "Behold the Pierced One" Ignatius 1986, pp. 25-27).
CONCLUSION"At the end of the second millennium, we need, perhaps more than ever, the words of the Risen Christ: 'Be not afraid!' Man who, even after the fall of Communism, has not stopped being afraid ...” (Crossing …” p. 221)
Of what? Of the call to cross the threshold of hope...: " following Jesus Christ so closely that you become one and the same thing with Him. "Do not be afraid of God who became a man! It was precisely this that Peter said at Caesarea Philippi: 'You are the Messiah, the Son of the living God' (Mt. 16,16). Indirectly He affirmed: You are the Son of God who became a man. Peter was not afraid to say it, even if these words did not come from him. They came from the Father. 'No one knows the Son except the Father; ...(cf. Mt. 11, 27).
"Peter was not afraid of God who had become a man. He was afraid, instead, for the Son of God as a man. Peter could not accept that He would be whipped and crowned with thorns and finally crucified. Peter could not accept that. He was afraid. And for this Christ severely reproached him, but He did not reject him" (p. 7).
Returning to p. 222: "Peoples and nations of the entire world need to hear these words. Their conscience needs to grow in the certainty that Someone exists who holds in His hands the destiny of this passing world; Someone who holds the keys to death and the netherworld (cf. Rev. 1, 18); Someone who is the Alpha and the Omega of human history (cf. Rev. 22,13) - be it the individual or collective history. And this Someone is Love (cf. I Jn. 4, 8,16) - Love that became man, Love crucified and risen, Love unceasingly present among men. It is Eucharistic Love. It is the infinite source of communion. He alone can give the ultimate assurance when He says 'Be not afraid!'
Crossing of the threshold seems to mean bursting out of being retained within the individualism of the self. It means stepping out of oneself to serve the others... To do that, one experiences being Christ and therefore is able to say: "Father!" He is the God of Jesus Christ.
Wednesday, February 16, 2005
Justice Scalia and Yogi Berra
JUSTICE SCALIA AND YOGI BERRA:
A MATTER OF INTERPRETATION
Robert A. Connor
330 Riverside Drive
New York, N.Y. 10025
By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience,1 Justice Scalia has made the workings of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.
When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: "Do justice, sir, do justice," he responded: "That is not my job. It is my job to apply the law."2 Holmes was also known to comment: "I always say... that if my fellow citizens want to go to Hell I will help them. It's my job"3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not justice but apply the law, and if that law is abortion, "the state should permit abortion, in a democracy."4 The picture that emerged from Scalia's speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the Nuremberg laws, "would have resigned."5
The different facets of the picture were the following:
a) Limitations for a Justice of the Court: It is a mistake to try to "persuade" a Justice of the Court on any point of law since he does not make law. His power is limited to the application of the will of the people brokered by the technical, literal reading of the Constitution and Bill of Rights. Scalia: "It is the Constitution that governs my action... But do it by not persuading me. I'm a worldly judge. I just do what the Constitution tells me to do."6 Therefore, do not talk to him of the philosophy of Constitution, truths grounding the Constitution, etc. Invasion into arenas transcending the Constitution would be flagrant judicial activism and unwarranted migration of power into forbidden territory and therefore, tyranny by what has become a judiciary elite.
b) Extrinsicism of Religion and Morality: Government is as religiously and morally neutral as a "tooth paste"7 or a "crowbar." It may act out "what is ultimately a motivation of morality, but it is a motivation of morality at the level of the individual citizen which then expresses itself in the majority vote that controls what the government does. But the government... in and of itself is totally neutral on those points. It is the people who must bring out the morality dimension that is reflected through the government. And I think that it is inconsistent with democratic theory that the government has an obligation to do that in and of itself."8
This extrinsicism of morality to government "in and of itself" is repeated again: "But that process (Christian inspiration of law) is achieved not within the context of government but outside the context of government, with free men and women persuading one another and then adopting a governmental system that embodies those Christian precepts."9
c) Majority Rule: Part and parcel of this neutrality is the quantitative rule of the majority. The will of the majority is the source of authority, not any presumed truths concerning the person, rights, morality and even less, faith. The government is blind to faith, morality and inherent rights of the person. The person has no intrinsic rights that are presumed. The same were surrendered on entry into the social civil contract. Such presumed rights would contravene the authority and rule of the majority. Whatever they be, they are given by the majority, e.g., the Bill of Rights. Scalia: "The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects -- but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course."10
Scalia concludes his answer with this telling remark: "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy, you want a king to decide what is right."11
d) Democracy as Dogma: Democracy, then, is a political and legal structure incarnating the will of the majority to which one makes an act of self commitment akin to religious faith. Scalia: "Once you adopt democratic theory, it seems to me you accept that proposition. If the people, for example, want abortion, the state should permit abortion, in a democracy.12 If the people do not want it, the state should be able to prohibit it as well. It seems to me the crux of the matter for the Christian in a democracy is to use private institutions and his own voice to convert the democratic society, which will then have its effect upon the government. But I do not know how you can argue on the basis of democratic theory that the government has a moral obligation to do something that is opposed by the people. That works fine in a monarchy, I suppose, but I do not know how you can reconcile it with democratic theory."13
All this comes down to say that the constitutional structure is not built on truth. Although Scalia can lyricize philosophically "I love natural law"20 or the governmental system "embodies those Christian precepts," in the real world of adjudication he speaks as judge: "But once the Constitution was put in place, it is the Constitution that governs my actions." And this is correct for him to say as judge since his mandate extends to applying the law. But it is not the whole story.
Scalia remarks that he "loves natural law," and he sees the Constitution as "embodying moral values that were central to Christianity." However, he reserves moral values to the sphere of private conscience. There can be no access to those values except by way of private persuasion ("We are fools for Christ's sake"21). In his explicit presentation, the public system of government is a "neutral" mechanical construct. He chides those who contradict this view when he responds: "To say, `Ah, but it is contrary to the natural law' is simply to say that you set yourself above the democratic state and presume to decide what is good and bad in place of the majority of the people. I do not accept that as a proper function." It is not proper function because Scalia presumes by stealth the philosophy of Hobbes and Locke concerning the "state of nature" as the source of rights. Rights are so anemic and so little attached to the person as person that they are "detachable" on entrance into the society and then returned, "secured," by the benevolence of the state. Like them, Scalia presumes that there is no self evident truth because there is no de facto consensus concerning the human person and his rights. The person has no rights in democratic society. "(T)hat's why we have a Bill of Rights. We set them forth in the Bill of Rights. But that is the limit of them, and I do not make up other ones"22 (emphasis mine). The society is not built on natural law or self evidence but on the will of the people as emerging from the state of nature into a social contract.
In "Originalism...," Scalia warns that "the main danger in judicial interpretation of the Constitution ... is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge...Nonoriginalism which under one or another formulation invokes `fundamental values' as the touchstone of constitutionality, plays precisely to this weakness."23 I would like to address this difference. Scalia sets up the difference with the metaphor of choosing between two librarians to hire. One speaks too loudly, the other too softly. He chooses originalism - the written law of Constitution24 ("values... fundamental to our society") as the librarian who speaks too softly in preference to going beyond the text of the Constitution by imposing one's personally preferred values, i.e., the librarian who speaks too loudly. I will argue that Scalia's choice of originalism (legal text) over nonoriginalism (the search for self evidence) begs the question as to the ultimate grounding of authority. From his standpoint as judge, it is proximately the will of the people. But, the will of the people cannot be the grounding absolute of authority since freedom always raises the question of truth, and the human will is not its own truth since the indeterminacy of human freedom gives witness to the "unfinished"25 state of man. To abandon the search for truth as the authority for freedom's use is to abandon the human person ultimately to being used by forces more powerful than himself. It would mean to abandon him to the tyranny of totalitarianism which in this case would have a democratic stripe. It would appear to be a "rule of law" but in reality it would be a dictatorship of the arbitrary will of individuals. The Pope remarks:
Therefore, we are confronted with Scalia's assertion that "(t)he central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned," and the Pope's counter assertion that "(i)f there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people." John Paul II concludes that
"if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism."27
To deepen the perspective, Walter Berns testifies that, at the founding of the country, the freedom of self determination vis a vis religion, speech, etc. rests, indeed, on truth as having an absolute dimension.28 He remarks: "These principles (of free government) require the establishment of religious freedom, the right of men to hold whatever opinions they choose respecting God or gods. That men must have this choice is not itself a matter of choice or indifference"29 (underline mine). He continues: "Freedom of religious opinion is absolute... the United States is founded on a `political creed,' the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold' to be `self-evident' constitute a creed on which the country was founded."30 Later, Berns insists that "they (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth. Men are endowed with rights to life, liberty, and the pursuit of happiness,.... If this were merely an opinion, it would be necessary to hold as legitimate the claim of a Charles I to suppress religious freedom and replace it with an established church. Or... if this `truth were but an opinion, it could not protect free inquiry into other opinions"31 (bold mine).
It is clear from words such as "self-evident," "palpable," "scientific," not "opinion," "discovered by the new political science" that the truth which grounds freedom of religion is an absolute, even if that absolute has been conceptualized as the "philosophoumenon" of Hobbes's state of nature. A transition took place in Berns from his 1985 "The First Amendment and the Future of American Democracy," to his 1987 "Taking the Constitution Seriously," where he repudiates the absurdity of the "right to be let alone"32 which characterizes the "state of nature." He ends by "taking the Constitution seriously," which means the literal text in the positivistic sense of Scalia's "somebody" (the librarian who speaks too softly). To overcome the porosity of the liberal minded judges for whom there is no truth and therefore no end to the invention of absurd "rights," he opts, like Scalia, for the text of the Constitution which "derives its binding authority... only from the fact that it is an act of the people in their constituting capacity."33 But again, this leaves us in the throes of the conundrum in which we ask: what is the truth - the self evidence - which can guide the will of the people to goodness?
Original Self Evidence: Historically, at the founding of the country, there was a consensus in truth so strong that it was perceived as self evidence in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." Berns remarks: "There was no dispute with respect to the principles on which the Constitution was built."34 "The agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the Constitution was built; stated in its most radical form, they all agreed that our institutions do not presuppose a providential Supreme Being."35 Again: "the United States is founded on a `political creed,' the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold' to be `self evident' constitute a creed on which the country was founded... This may explain why Jefferson could say that difference of opinion is advantageous in religion and harmless in physics and geometry, and not say it regarding the fundamental principles of government"36 (bold mine). And again: "They (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth... If this were merely an opinion... `it could not protect free inquiry into other opinions.'"37
What is of interest here is the identity between absolute and self-evident truth.38 The need for the absolute is clear enough in Berns that he concludes that if you treat religious and political concepts as equally relative, and there is no absolute, then "the Constitution rests on nothing at all - or rather, on no principle immune from the whims of transient majorities"39. The shame is that Berns, having correctly identified the need of truth in its absoluteness as the grounding of the Republic, fell in with the Enlightenment rubric that all knowledge must be conceptual, and then assigned as content to that absolute concept the philosophoumenon of Hobbes's state of nature.40 Then finally disabused of that fallacy and not realizing that the truth of the person and rights are to be found on a second tier of experience (as we shall see), he collapses into Scalia's textual originalism where he hopes the secretary who speaks too softly can ward off the subjectivism dug up from the liberal penumbra. He concludes that "The only appropriate agenda for conservatives41 is to defend the liberal Constitution - if necessary, to defend it from the liberals - because by that Constitution rights are secured. This knowledge - that as far as the national government is concerned, security for rights is found in the structure elaborated in that text - could be one of the happy lessons learned in this bicentennial season"42 (underline mine).
Universal Christian Faith: This absoluteness, appearing as consensus and self evidence, coincided historically with an almost total presence of Christian faith as praxis in the colonies. Benjamin Hart asserts that "America at the end of the 18th century was overwhelmingly Protestant, and of the dissident variety. Though precise figures on church membership are not available, we do have numbers on church bodies. In 1775 there were 668 Congregational churches; 588 Presbyterian; 494 Baptist; 310 Quaker; 159 German Reformed; 150 Lutheran; 65 Methodist; 31 Moravian; 27 Congregational- Separatist; 24 Dunker; and 16 Mennonite churches. The Anglican Church had 495 congregations, making it a decided minority in America at the time of the revolution. About 75 percent of all Americans belonged to churches of Puritan extraction. When dissenting Protestants and Anglicans are combined, we find a religious composition in America that was 98.4 percent Protestant, 1.4 percent Roman Catholic, and three-twentieths of one percent Jewish."43 Besides the numerical presence of believing Christians,44 Berns reports that "(t)o one degree or another, and in one or another of its christian varieties, over half the states had an established religion..."45. Concerning the impact of this on the societal ethos, Washington remarked in his farewell address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports... And let us with caution indulge the supposition that morality can be maintained without religion... (R)eason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."46 Jefferson himself (enemy of "monkish ignorance and superstition"47) questioned whether "the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?"48 Tocqueville, in summing up his observations on the country, remarked: "I do not know whether all Americans have a sincere faith in their religion - for who can search the human heart? - but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every rank of society."49
Christianity Reveals Person and Rights: The task now is to take the self evidence (absoluteness) of the founding principles and the universally held christian faith and to see if they can answer Scalia's conundrum as how "to discern a difference between those political values that (the justice) personally thinks most important and those political values that are `fundamental to our society.'"50 The question really comes down to what "those political values... fundamental to our society" are.
The Declaration of Independence declares that the human person and his right and dignity to self determine are the fundamental political value. Three fourths of that document consists in taking umbrage at the violation of these self evident rights and therefore, "(t)hat these United Colonies are, and of Right ought to be Free and Independent States..." This was declared to be self evident and of such a forceful and non debatable character that there was no reasoning beyond that bold assertion. It must be concluded that the self evidence was pre-conceptual.51
Now, if the principles on which the Republic is built are pre- conceptual and therefore absolute and self evident as to obviate any ideological debate,52 and Scalia finds that now there are no absolutes commanding universal consensus in whose light he can confidently adjudicate,53 would it not seem reasonable to investigate whether there may be a kind of truth that is pre-conceptual, i.e., experiential and of another order? Perhaps, what has traditionally been referred to as "natural law" may be a second tier of experience massively lived out at the moment of the American founding and which coincided with, or was caused by, the almost universal presence of christian faith. And that being so, in order to beat "somebody with somebody," we would have to have recourse to that experience and that faith again.
My proposal then is to explore what kind of truth is that self evidence and how could christian faith have played into its formation. That is, does the exercise of christian faith yield the consciousness of an absolute - a self consciousness distinct from conceptual truth - which is self evident?
The Phenomenological "Pause:" The first order of business is to determine whether there is another level of experience and knowledge which is legitimate, i.e., objective and realist but not the object of the exterior senses. Wojtyla offers that besides the direct experience of external things, there is also the direct experience of one's own acting: "it seems most improbable that man with his conscious acting or action is not given as the object of experience."54 Suffice it to say that since Descartes, reality has been epistemologically restricted and reduced to exterior sensation.55 What is externally sensed is measured, abstracted and forms a propositional kind of knowing which could be called "cosmological" because it reduces or objectifies reality to the state of cosmos or "thing." Truth on this level consists in a conformity of propositions of logical subjects and predicates to sensed reality. However, the interior, non sensible yet universal experience and consciousness of the "I" has been eliminated as empirically real by being absorbed into the cartesian self as "consciousness" (res cogitans), - the unreal "I" of idealistic subjectivism - not to re-emerge as real until our own day in Karol Wojtyla who retrieves it ( the "I") as "agent of the moral act."56
Wojtyla's philosophic contribution consists in "pausing" at the irreducible experience of the subject freely determining not only the kind of action to be performed but the very self as cause of the action. The pause must take place because the experience of self determination is empirical as real and therefore demands the attention of cognition on this new second tier of experience.57 He remarks: "Lived experience essentially defies reduction."58 Having lost the real "I" in the reductive rationalism of the Enlightenment, until now we have not known how to pause at this irreducible reality.
Hence, Enlightenment man has been left with the welter of conflicting conceptual (reductive) ideologies as the only valid truth with no deeply experienced north that could give them meaning. Besides, these concepotualizations discredit each other by their partial and mutual contradiction,59 thus leaving the mind in a state of skepticism.60 Hence, Scalia's Yogi Berra: "You can't beat somebody with nobody" and Bork's perpetual motion machine testify to the inconclusiveness of working with only this kind of cognition. It is an epistemological dead-end which leaves the positivism of the Constitutional text as the only escape. But it escapes into totalitarianism, as we saw on page 11.61
The Recovery of the "I" and Christian Faith
The proposal here is to suggest that the self evidence of the "I" at the core of the first of our legal documents, the Declaration of Independence, can only be fully retrieved on this second epistemological level of experience where Christian faith is found as moral act - not abstract essence62 - producing both the anthropological experience of self gift and the consciousness of the "I" sufficient to generate a democracy. And the reason is that only Christian faith demands the response of the whole person, and therefore, the "I,"63 to the revealing Person of Christ.64 It initiates an epistemology of self experience rather than an epistemology of sensation and abstraction.
Christian faith offers the existential encounter of the revealing Person to the believing person in the prototypical exchange between Christ and Simon son of John. The "non-I" of Simon is transformed into the christian "I" of Peter. He goes through a name change because he went through an anthropological transformation by entering into the prayer of Christ which was equivalent to "becoming Christ."65 Ratzinger describes the nature of Christ as Person to be pure Trinitarian Relation to the Father - Truth in Person - Who, when incarnate as the man Jesus, translates as prayer. Therefore, "we see who Jesus is if we see him at prayer"66 (underline mine). Simon is called into this prayer (as a lived experience of his "I"), and by so doing becomes like Jesus' "I."
Since fundamental epistemology teaches that like is known by like, Simon's interior transformation of prayer gives him a likeness to Christ such that he experiences in himself what it is to be like Christ in Himself, and therefore, to have a direct, moral experience of being the "Cornerstone"67 who is Christ.68 This validates the name change from Simon to "Petros." Stone mimics stone, and hence, only stone "knows" stone. As the experience of being Simon is transformed into the experience of being Christ, the pre-conceptual consciousness of the "I" of Simon becomes the pre-conceptual consciousness of being Christ. The metaphysical "advance" boosting Simon into the self gift of prayer, produces the epistemological "advance" from Simon to Peter. There is now a full self-evident realization of the dignity of the person and rights which can become, within the proper historical conditions, the grounding truth of American democracy.
The men who had not entered into the prayer of Jesus (with the gift of their "I") and who were working within an epistemology beginning with sight, sound and abstraction, did not recognize him.69 On the other hand, for those who had entered and lived the moral act of faith which is prayer, that pre-conceptual experience turns conceptual upon reflection and Simon-now-Peter is able to formulate as words, "You are the Christ, the Son of the living God."70 Whereupon Christ changes his name to conform to this new metaphysical anthropology: You are Peter, and upon this rock I will build my Church..."71 Stone is named from stone.
This unique form of consciousness of the self as total gift could only take place in the act of Christian faith because Christian faith is uniquely an encounter between persons and not primarily ideology. Christ is the only God that has become man. Christian faith alone is gift of self. Hence, the resonance of persons produces the unique anthropological experience of likeness between two "I's" and therefore confers unparalleled dignity while creating a universal consciousness of equality in all partakers. No matter how varied we all are in talents received, we can be equal in giving it all back. Only christian faith - as life, not concept - would give this sense of radical equality which finds its secular counterpart in representative government and the vote. Thus, I propose that the "I" who is discovered in this act of faith is the "I" of dignity and rights who is the grounding principle of the American founding. The self determination that brought about the gift of self to the revealing Christ, is the same kind of self determination that founded the secular structure of representative government in 1776 and 1789. That is to say that America was a christian people before it was a representative government authorized by vote.72
Wojtyla has given us a phenomenological tool making it possible to "pause" at this experience of the "I" in the moral act (in our case, the act of faith), and by so doing has made it possible to pause at the act of faith as the anthropological experience of person and rights. Hitherto, we have had neither the tool, the pause, nor the recovery of the "I." Hence, he makes it possible to distinguish between subjective "interests" which are subjectivist wishful thinking and "those political values that are `fundamental to our society'"73 which are the subject as truth.
The proposal, then, is to see Christian faith rather than the ideological philosophoumenon of the "state of nature" as the true historical source of the consciousness, the self- evidence, of the dignity of the human person and his rights. Instead of the "right to be let alone" which is really a residue of sin which leaves the person in darkness as to the truth of imaging God,74 Christian faith is the unique anthropological act which restores to self evidence the dignity of the human person. As such, christian faith as a relational act is fundamental for a secular democracy which pretends to build itself on that dignity. In short, there is no grounding self evidence for the state when there is no public provision and space for christian faith. That is to say, "reason shut in on itself does not remain reasonable or rational... Reason needs revelation in order to be able to be effective as reason. The connection between the state and its Christian foundations is imperative precisely if it is to remain the state and be pluralist."75 The state needs the act of living faith, i.e., the experience of truth as an absolute, for its own rationality and freedom. But it needs it as pre-conceptual self evidence, not as abstraction for in that case the Church would become theocracy (the incarnation of religious ideology) and pluralism would cease.
to constitutional text, positivistic argumentation and wilting sarcasm. But the problem continues to be truth, and its non- perception continues to be caused by its non conceptual character77 while being misrepresented by the bogus mis- conceptualization of the "state of nature." To be the man of the hour, Scalia would have to acknowledge the reality of self evident truth originating from christian faith, in spite of there being no consensus. To do so would be enormously pedagogical78 whether in the majority or in dissent. He would not be teaching religion ideologically, or certainly less, imposing religion institutionally, but acknowledging the religious-truth- now-secular-principle of the person as gift. This "giftedness" whereby one becomes another Christ79 is the truth of the person which grounds what we understand to be "rights." These are certain ways that the "I," discovered in the act of faith, gives itself to God and to the others in the family and civil context. That is, once the person is disclosed by the experience of being gift - both as solidarity (responsible for the others) and subsidiarity (responsible for oneself)80 -, then the "rights" are known as experienced and self evident.81 They are not simply "interests" that can be whimsically snatched from the subjectivities and whims of populace or Court Justices as from a "tinkerer's toolbox."82 They are "objective" dimensions of the person ("subject") who has the unique dignity of determining himself to be gift in the act of imaging the divine Persons who are pure Gift. They are inalienable and inseparable from the person as ways in which he/she lives that one absolute, yet singular, truth.83 They are not gifts "conceded" to the person by the largesse of the majority since, being inalienable from the the being of the person, they cannot be removed in any way, less by "entrance" into society.84 Rather, they are the conditions whereby the person becomes gift and needs service. Their limit is the objective truth of the person, and although that truth does not change, our awareness of it does, provoking us to be open to further developments. How else to explain the qualitative and quantitatively development in Magisterial teaching on rights as seen in Gaudium et Spes #27 (see footnote #79)!
The bulk of Scalia's talk at the Gregorian centered correctly on the confusion of rights with "interests" and the serious damage that is done to persons, government and christianity itself by the "transformation of charity into legal entitlement."85 Since person and truth have no public validity for him, the giftedness of the person to others has no public validity. Hence, Scalia, not perceiving the person and less his constitutive social dimension as the prius of criterion, presumes that Catholic social teaching "must incline us toward that system ("welfare socialism") whereby we would be obliged to put a `chicken-in-every-pot.'" He retorts, "the answer, I think, is no." Sensing correctly the materialism of welfare socialism, he rejects it, but he does so under the Enlightenment aegis of there being no personal rights at all save those conceded by the state. The intrinsically relational person becomes progressively individualized and hence materialized to his own detriment and the detriment of democratic society.
The burden of this paper has been to suggest that there is second level of experience which is also empirical and therefore real where one experiences the "I" as act. Here, freedom and truth are directly proportional not as objectivized "this" and "that," but as dimensions of the same personal subject. The paradigm act of the "I" is christian faith - a moral act - where the "I" enters as gift of self into a relationship with the revealing Christ, producing an experience and consciousness of self as freedom and self as truth. That is, freedom is experienced as dignity of self and right to self-determination precisely when the "I" is given as gift, which is its truth. The historical conditions of the country's founding suggest that the consciousness of this christian experience was surely the dynamic establishing the American people as people and thus the core political principle from which the originating law of the Declaration of Independence and the definitive Constitution emanated. I am proposing that christian faith is the moral, anthropological - let us say secular - act which has becomes the political principle of the American political foundation.
Corresponding to the two levels of experience, the objectivizing sensation/abstraction, and the subjective gift of the "I," the noun "people" has two epistemological meanings which we could materialize as "thick" and "thin." Thin as the quantitative category of the majority which corresponds to the objectivizing sensation/abstraction; thick as rights of the subject on the level of self experience as gift. With this double epistemological experience, we can propose a resolution to the double meaning of "people" in constitutional interpretation as suggested by Arthur Allen Leff: "people rightly see themselves simultaneously as part of `the people' and as autonomous persons."86 As a result, the Constitution "commands that both of these conceptions of the final lodging place of evaluative power be simultaneously reflected in the operations of the American polity."87 Together with the abstractive reasoning which yields the notion of "the people" for majoritarian head counting on a quantitative level and political hegemony over the minority, christian faith produces the consciousness of the intrinsic worth of the individual person whose value as person transcends the quantitative totality of the entire body politic. Hence, constitutional interpretation demands the deployment of both epistemological levels of experience.
Judicial review, then, in order to interpret the Constitution in a truly objective way, needs to pay attention to objective head counting but also to the value of the subject which validates majoritarianism in the first place while grounding the inviolable character of the human person as possessor of human rights. Constitutional interpretation will have to breathe the epistemological atmosphere with the lungs of both first and second tiers of experience. The law must be applied as it reads, but that reading must be interpreted within the christian anthropology that inspired it. To do otherwise is to interpret it in only one dimension and to fail a people in desperate need to understand themselves precisely as people forming a communio personarum, a United States. They continue to need the foundation of the gift of self which is christian faith as anthropology. And it must be kept clear that christianity does not enter the public square as christian theocracy nor church establishment nor creed. It enters precisely as gift of self in secular work and service.
Hence, Scalia cannot say (as he does) that "if the people... want abortion, the state should permit abortion, in a democracy." Maybe in a democracy, but not in this democracy! To affirm that the Court has nothing to say about abortion, or assisted suicide, or homosexual marriage, etc. because the Constitution has not written a word about it, is not to say enough about the United States nor the Constitution.
Since Scalia is a practical man ("I'm a worldly judge"), when the stakes are high, the most practical thing to do is to be right. A man, committed to truth, in a strategic position and with the political prudence to fight only necessary battles, could galvanize an entire people who await leadership. In opting for truth without abandoning the mandate to apply the law (which is not legal positivism), Scalia may be surprised by the "signs of the times" and the transformations being wrought here in abscondito not dissimilar to 1989 in Central and Eastern Europe. His destiny, which I have been privileged to see emerge over four decades, may include his being the key protagonist in the understanding and praxis of the United States as the universal paradigm of state in a world fast becoming one world in the next millennium.
On June 6, 1952 in Xavier High School after a final exam in Greek, Justice Scalia witnessed Morton Hill, S.J. write the words "diokete ten agapen" (pursue Love) on the blackboard as final, personal testament to his home room Greek and Latin class. Since Christ's Love and His Truth are identical with His Person, perhaps the writing of those words has now found the person and the historical context for its implementation: "diokete ten aletheian:" pursue Truth.
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Notes
1 At the Pontifical University Gregoriana in Rome on May 2, 1996.
2 Robert H. Bork, The Tempting of America, The Free Press, 1990, p. 6.
3 Holmes to Laski, March 4, 1920, Holmes-Laski Letters, vol. 1, p. 249.
4 Catholic News Service, June 14, 1996, p. 13.
5 CNS, op. cit., p. 16.
6 CNS, op. cit., p. 16.
7 CNS, ibid., p. 9.
8 CNS, ibid., p. 14.
9 CNS, ibid., p. 16.
10 CNS, ibid., p. 14.
11 CNS, ibid., p. 14.
12 Scalia has officially gone on record in Casey, 112 S/ Ct. 2791, 2873, saying that "The States may, if they wish, permit abortion-on-demand."
13 CNS, ibid., p. 13.
14 University of Cincinnati Law Review, 1989, Vol. 57, No. 3.
15 Scalia remarks: "(I)t is not very helpful to tell a judge to be a `nonoriginalist.' If the laws is to make any attempt at consistency and predictability, surely there must be a general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the `fundamental values' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or of Mills, or Rawls, or perhaps from the latest Gallup poll?" ibid., p. 855.
16 ibid., p. 855.
17 ibid., p. 862.
18 Robert Bork affirmed the same skepticism as to finding any conceptual consensus as to the meaning of man and "what man should become." He likened the prospect to the perennial and frustrating attempt to develop a perpetual motion machine. In line with Scalia's "You can't beat somebody with nobody," Bork urges that "the difficulty with the idea of perpetual motion... is not the accumulation of disappointments in all those garages but there is never going to be such a machine... (T)he problem with overarching systems of morality is not simply that the law professors are not bright... The problem is that this enterprise is doomed to failure." The Tempting of America, The Free Press, 1990, p. 256.
19 CNS, op. cit., p. 14.
20 CNS, op. cit., p. 16.
21 Jeffrey Sheler, "In Search of Jesus," U.S. News and World Report, April 8, 1996, p. 46.
22 CNS, op. cit., p. 15.
23 op. cit., p. 6, footnote 14.
24 Scalia describes the Constitution as "in its nature the sort of `law' that is the business of the courts - an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law;" in "Originalism: The Lesser Evil," op. cit., p. 855.
25 "(m)an is an unfinished being, as indicated precisely by this `fissure' in him open to the infinite. According to this view, other natures in the world of nature are in their own way `finished beings,' while man, open to the absolute, awaits his completion;" John Paul II and Andre Frossard, Be Not Afraid, St. Martin's Press, 1984, p. 95.
26 John Paul II, Centesimus Annus, #44.
27 ibid.
28 "They (the founding Fathers) were fully convinced that the Constitution of the United States derived from a `self- evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth; The First Amendment and the Future of American Democracy, Gateway Editions 1985,ibid., p. 146; "The change (permitting Communists to teach in the Universities) has been dramatic, but it is not a change that reflects a change in Communism.... It is a change that reflects, instead, the fact that the Constitution is now held to stand for the equality of all ideas;" ibid., p. 184, et seq.
29 The First Amendment..., ibid., p. 18; (emphasis mine)
30 ibid., p. 83
31 ibid., p. 146.
32 "There is, and can be, no general constitutional right to be let alone. Let alone to do what? To worship? Absolutely. To read? Yes. To waste time? Even that. But to rob a bank? To counterfeit money? To `utter' checks? To make noise? To refuse to be vaccinated? To shoot heroin? To manufacture it? To make child pornography film? In countless ways the law invades privacy, even...the privacy of the home. So it is not enough to speak abstractly of a right to be let alone..." He concludes that if rights are reducible to "interests," then we would revert to the "state of nature" where life would be "solitary, poor, nasty, brutish, and short." However, Berns here has lost his taste for "truth" since his repudiation of granting "interests" the status of "rights" is its impossibility, "and it is impossible because not all interests can be satisfied." See Taking the Constitution Seriously, Madison Books, 1987, p. 226-228.
33 Taking the Constitution Seriously, op cit. pp. 236-237.
34 The First Amendment and the Future of American Democracy, op. cit., p. 10.
35 W. Berns, The First Amendment and the Future of American Democracy, op. cit., p. 10. Note that the point is not whether "our institutions do not presuppose a providential Supreme Being" but that they are in massive agreement on self-evident first principles. My purpose is to show that the universal act of christian faith yields a non-conceptual knowledge of self and rights by the experience of the self as gift. Conceptually, it presupposes a "providential Supreme Being" while experientially it gives a consciousness of "I" and rights. It is on this Christian exercise that the principles of democratic government rest.
36 ibid., p. 83.
37 ibid., p. 146.
38 That Berns think that the absolute be a political concept like the right to be left alone deriving from the state of nature is irrelevant to my thesis. What is most significant is that he saw that historically there was a consciousness of absolute truth such that it was considered self evident. That the content of that concept be "that our institutions do not presuppose a providential Supreme Being" is irrelevant because the character of the truth that I am proposing is not primarily conceptual with but experiential on a second tier of experience as explained below. However, the absoluteness of it as self evident to all is vital to be recognized as truth. To not establish this is already to fall into the trap of positivism as it seems Scalia has.
39 ibid. p. 146.
40 "(S)o far as the Constitution of the United States is concerned, in the beginning was not the word (`and the word was with God, and the word was God'); in the beginning was the state of nature, and the word was with the philosophers of natural rights. It was from them that the Founders learned the new `science of politics.' and with it the principles of free government;" ibid., p. 19.
41 By "conservatives," I take him to mean those seeking truth.
42 Taking the Constitution Seriously, op. cit., p. 241.
43 Benjamin Hart, Faith and Freedom: The Christian Roots of American Liberty, Here's Life Publishers, 1988, p. 337.
44 Concerning the Christianity of this religious phenomenon, Patrick Henry remarked at the Constitutional Convention that "It cannot be emphasized too strongly or too often that this great nation was founded not by religionists but by Christians, not on religion but on the Gospel of Jesus Christ."
45 "Taking the Constitution Seriously," op. cit., p. 111. See also: "The proscription of religious tests in Article VI (of the Constitution) (at that time) only to national office or national trust, and any attempt to broaden its coverage to forbid state religious tests would almost surely have failed.;" ibid., p. 167.
46 ibid., p. 13.
47 Letter of Thomas Jefferson to Roger C. Weightman, June 24, 1826: in "Taking the Constitution Seriously," op. cit. p. 244.
48 W. Berns, "The First Amendment and the Future of American Democracy," op. cit., pp. 13-14.
49 Alexis de Tocqueville, Democracy in America, Vol. 1, p. 316.
50 op. cit., p. 863.
51 "What is noteworthy in the debates leading to the adoption of the First Amendment is the absence of that kind of religious problem. It is not the differences among the participants in that debate but rather the extent of their agreement that is remarkable. What divided them were differences on what can only, in the light of that history, be called secondary issues... Compared to these differences, the agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the constitution was built..." (bold mine); Berns, The First Amendment... op. cit. p. 10.
52 Scalia asserted at the Gregorian that "the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law. It expresses the underlying sentiment which gave rise to the creation of this Constitution. But it is the Constitution that is the document that governs us" CNS, p. 16. The reply of Walter Berns is the following: "In the various official compilations of American laws -The Public Statutes at Large of the United States of America (1854), Revised Statutes of the United States (1878), The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States (1877), and even the United States Code - the Declaration of Independence enjoys what might be seen as pride of place, ahead of Articles of Confederation, the Northwest Ordinance, and the Constitution and its amendments. What is noteworthy here, however, is not the Declaration's place in that list - after all, the Declaration is the earliest of the documents listed chronologically - but, rather, its presence in that list, a list of legal documents" (underline mine); Taking the Constitution Seriously, op. cit., p. 23.
53 Let us remind ourselves of the spur under Scalia's saddle: "I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned;" "Originalism: The Lesser Evil," op. cit., p. 862.
54 The Acting Person, D. Reidel Publ. Co., 1979, p. 9.
55 "To reduce the range of experience to the functions and the content of sense alone would lead to deep contradictions and serious misunderstandings... what then is given directly in experience? Is it only some `surface' aspect of the being called `man,' an aspect detectable by sense, or is it man himself?... It does not seem reasonable to believe that we are given only some more or less undefined set of qualities in, or rather of, man, but not man himself. Moreover, it seems most improbable that man with his conscious acting or action is not given as the object of experience" ibid., p. 8-9.
56 Since the moral act is ascertainably real, and doing follows on being, the being of the doing must be real. And since my "I" self determines itself when it causes the act, and there is an inner experience of that self determination a (a passage from real potency to real act), there is a direct experience of the "I" as reality, distinct from the subjective penumbra of consciousness which has dominated the Enlightenment since Descartes'res cogitans. Phenomenology is the method that gives us respect for this experience and legitimates the "pause." This is the heart of Wojtyla's philosophy. See Wojtyla's Participation or Alienation,? in Person and Community, Lang, 1993, p. 199.
57 "This `pausing' should be understood in relation to the irreducible. The traditions of philosophical anthropology would have us believe that we can, so to speak, pass right over this dimension, that we can cognitively omit it by means of an abstraction that provides us with a species definition of the human being as a being, or, in other words, with a cosmological type of reduction (homo = animal rationale). One might ask, however, whether in so defining the essence of the human being we do not in a sense leave out what is most human, since the humanum expresses and realizes itself as the personale." He continues: "Lived experience essentially defies reduction. This does not mean, however, that it eludes our knowledge; it only means that we must arrive at the knowledge of it differently, namely, by a method or means of analysis that merely reveals and discloses it essence. The method of phenomenological analysis allows us to pause at lived experience as the irreducible... Such a disclosure - the deepest possible disclosure - would seem to be an indispensable means for coming to know the human being as a personal subject...." Subjectivity and the Irreducible in the Human Being, in Person and Community, op. cit., pp. 215-216.
58 ibid.
59 Enlightenment rationalism construes freedom as relativizing reality and thought. Wherever there is the absolute, there is no freedom. Hence, truth (which is an absolute in some way) is separated from freedom and the two become inversely proportional. The more truth, the less freedom; the less truth, the more freedom. It will only be on a deeper level of experience and consciousness that Christ's "the truth will make you free" (Jn. 8, 32) can be understood. It will be important to revalidate this interior level of moral experience available to phenomenology (and not to positivism) where truth is experienced as an act of free self gift, and in the very experiencing of this truth of the "I," one becomes conscious of the complementary pluralism of these free absolutes.
60 "The problem (with overarching systems of morality) is that their enterprise is doomed to failure, no matter how intellectually adroit they are. Their quest is doomed for reasons given by MacIntyre:
The most striking feature of contemporary moral utterance is that so much of it is used to express disagreements; and the most striking feature of the debates in which these disagreements are expressed is their interminable character... (T)hey apparently can find no terminus. There seems to be no rational way of securing moral agreement in our culture; (A. MacIntyre, After Virtue, 51 (2nd. Edition 1984 at 6).
This is true, he says, because there is no longer a consensus about what man should become. Only a shared teleological view of the good for man can lead to common ground about which premises of morality are sound.... (O)ur public moral debates over such matters as abortion and capital punishment have been interminable and inconclusive because we start from different premises and have no way of convincing each other as to which are the proper premises... If we have no way of judging rival premises, we have no way of arguing to moral conclusions that should be accepted by all." R. Bork, The Tempting of America, The Free Press, 1990, p. 256.
61 It may be useful to consider John T. Noonan, Jr.'s thesis that law tended to be made in a state of abstraction and that (n)eglect of persons... had led to the worst sins for which American lawyers were accountable." His thesis calls for an historical epistemology that will retrieve the "I" (the person) from behind the "masks" of abstract categories where it is hidden and imprisoned. He concludes: "The central problem, I think, of the legal enterprise is the relation of love to power. We can often apply force to those we do not see, but we cannot, I think, love them. Only in the response of person to person can Augustine's sublime fusion be achieved, in which justice is defined as `love serving only the one loved;'" Noonan most tellingly quotes Oliver Wendell Holmes, Jr. re the nature of persons in the law: (P)ersonality is an illusion only to be accepted on weekdays for working purposes. We are cosmic ganglia; so I believe as much as I believe anything. And personality is merely the gaslight at the crossroads with an accidentally larger or smaller radius of illumination." Persons and Masks of the Law, The Noonday Press, 1976, p. xii and p. 106. An account of the epistemology of non-ganglionic persons is the aim of this paper.
62 "The most fundamental of the first type of error occurs when the faith is considered as a sort of abstract essence. The legitimate distinction between faith and its expression can lead those concerned with inculturating the faith to search for or create an unincarnated `Christianity'... This temptation to preach an abstract Christianity can be offset by a steady concern for Christological anthropology, that is, by an appreciation and understanding of the human based on revelation in Jesus;" Francis E. George, OMI, Inculturation and Ecclesial Communion, Urbaniana University Press, 1990, p. 221. Christological anthropology is the shift from object to subject where faith is the reciprocal moral act of response, the gift of self, to the gift of the revealing Self of Christ.
63 "Recollectedness, therefore, is the condition which enables man to say, `God is here, the Living, the Holy of whom Revelation speaks, and here also am I.' But not the vague I of everyday life, that confused something which sits down at table, walks through the streets of the town, works at the office, but the real I - the self. This is the I which makes me responsible for my existence, that I - humble and poor though he may be - which is unique and irreplaceable and which God had in mind when He created me and to which the words `God and my soul and nothing else in the world' apply. That I awakens only before God" (underline mine). R. Guardini, The Art of Praying, Sophia, 1985, p.18.
64 "(A) person's true identity is only fully revealed to him through faith, and it is precisely from faith that the Church's social teaching begins;" Centesimus Annus, #54. It must always be recalled that "Christian faith... is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out;" Veritatis Splendor, #88, 5.
65 From a technical point of view, the anthropological change is metaphysical, i.e., from potency to act, while epistemologically, it is from object to subject. That is to say, it is one thing is to speak about the subject, another is to experience (erlebnis) and be conscious of being the subject. For example, even when Thomas Aquinas speaks of the person and subject, he speaks within the epistemology of objectification, i.e., "about." Wojtyla remarks: "We can see here how very objectivistic St. Thomas' view of the person is. It almost seems as though there is no place in it for an analysis of consciousness and self-consciousness as totally unique manifestations of the person as a subject.... (T)here seems to be no place for it in St. Thomas' objectivistic view of reality. In any case, that in which the persons's subjectivity is most apparent is presented by St. Thomas in an exclusively - or almost exclusively - objective way.... (I)t would be difficult to speak in his view of the lived experiences of the person (underline mine);" Thomistic Personalism, in Person and Community, op. cit., pp. 170-171.
66 J. Ratzinger, Behold the Pierced One, Ignatius, 1986, p. 19.
67 Acts 4, 11: "This is `The stone that was rejected by you, the builders which has become the corner stone'"; Eph., 2, 20: "you are built upon the foundation of the apostles and prophets with Christ Jesus himself as the chief corner stone...."
68 The mechanism of this transference is the following: "Self- consciousness, like self-possession, as the name itself suggests, is not transferable beyond the individual concrete I, or self, that experiences itself and consequently understands itself in this manner. Although I cannot experientially transfer what constitutes my own I beyond myself, this does not mean that I cannot understand that the other is constituted in a similar fashion - that the other is also an I. For the other to be so constituted, self-possession conditioned by the other's own self- determination will be essential. An understanding of this truth defines to some extent the relation of my own concrete I to all other human beings. They are not just others in relation to my I; each of them is also another I. The other is always one of those I's, another individual I, related experientially in some way to my own I.... Thus the reality of the other does not result principally from categorical knowledge, from humanity as the conceptualized essence `human being,' but from an even richer lived experience, one in which I as though transfer what is given to me as my own I beyond myself to one of the others, who, as a result, appears primarily as a different I, another I, my neighbor. Another person is a neighbor to me not just because we share a like humanity, but chiefly because the other is another I," (underline mine); K. Wojtyla, Participation or Alienation? in Person and Community, op. cit., pp. 199-201.
69 "Now Jesus, having come into the district of Caesarea Philippi, began to ask his disciples, saying, `Who do men say the Son of Man is?' But they said, `Some say, John the Baptist; and others, Elias; and others, Jeremias, or one of the prophets.' He said to them `But who do you say that I am?'" Jn. 16, 13-16.
70 Matt., 16, 15.
71 Matt. 16, 18.
72 This is the overall thrust of the first two chapters of Walter Berns's Taking the Constitution Seriously. First, there is Chapter 1: "Constituting the People of the United States;" only after constituting a people can there be Chapter 2: "Constituting the Government: the Convention." (underline mine)
73 Scalia Originalism: The Lesser Evil, op. cit., p. 863.
74 Catholic theology sees sin as the isolation of man in loneliness or the equivalent of Hobbes's "state of nature." Made in the image of likeness of a Trinity of Persons who are intrinsically relations, the temptation "You will be like God," (Gen. 3, 5), was an ontological impossibility for man as creature. Therefore, what Hobbes is describing is precisely the christian understanding of Hell and its isolation. "The human being is relational, and he possesses his life - himself - only by way of relationship. I alone am not myself, but only in and with you am I myself. To be truly a human being means to be related in love, to be of and for. But sin means the damaging or the destruction of relationality. Sin is a rejection of relationality because it wants to make the human being a god. Sin is loss of relationship, disturbance of relationship...;" J. Ratzinger, "In the Beginning..." Our Sunday Visitor Publishing Div., 1990, p. 60.
75 J. Ratzinger, A Christian Orientation in a Pluralistic Democracy,? in Church, Ecumenism and Politics, Crossroads, 1988, p. 218.
76 CNS, op. cit., p. 11.
77 The non-discernment of the person conceptually could be compared in some way with Etienne Gilson's attempt to present the thomistic esse as the primum metaphysicum whose intellectual content is not susceptible to abstractive conceptualization. He remarks: "Because it lies beyond essence, existence lies beyond abstract representation, but not beyond the scope of intellectual knowledge;" Being and Some Philosophers, PIMS, 1949, p. 202. Another obvious cause of the non discernment of the dignity of the person is the weakened state of the christian faith as lived which dims the veritatis splendor of the divine image.
78 Appositely, Noonan writes: "Teaching - the main activity of appellate judges; for what else are 95 percent of their written opinions? -... Teaching is, necessarily, person to person, informing and evoking. It cannot be equated with Pavlovian conditioning as an exercise in applied force. Addressing both Holmes's bad man (...) and also the larger audience made up of the uncertain, the confused, the conforming, and the aspiring, legislators, and judges are educative. Their success is far more by persuasion that they are right than by coercion. To think of law as a science of power, unlocked by a key, badly obscures this function" (underline mine); Persons and Masks of the Law, op. cit., pp. 12-13.
79 Cf. pp. 25-26.
80 "Persons are the active and responsible subjects of social life. Intimately linked to the foundation, which is man's dignity, are the principle of solidarity and the principle of subsidiarity. By virtue of the first, man with his brothers is obliged to contribute to the common good of society at all its levels. Hence the Church's doctrine is opposed to all the forms of social or political individualism. By virtue of the second, neither the state nor any society must ever substitute itself for the initiative and responsibility of individuals and of intermediate communities at the level on which they can function, nor must they take away the room necessary for their freedom. Hence the Church's social doctrine is opposed to all forms of collectivism;" Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, March, 22, 1986, pp. 47-48.
81 John Paul II enumerates them: "the right to life at every stage of existence; the rights of the family, as the basic social community, or `cell of society;' justice in employment relationships; the rights inherent in the life of the political community as such; the rights based on the transcendent vocation of the human being, beginning with the right of freedom to profess and practice one's own religious belief;" in On Social Concern, #33. Vatican II in Gaudium et Spes #27 enumerated them negatively: "all offenses against life itself, such as murder, genocide, abortion, euthanasia and wilful suicide; all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures; all offenses against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children, degrading working conditions where men are treated as mere tools for profit rather than free and responsible persons. All these and the like are criminal: they poison civilization; and they debase the perpetrators more than the victims and militate against the honor of the creator." Also in the Pope's Letter to Families #17: "The rights of the family are closely linked to the rights of the person: if in fact the family is a communion of person, its self- realization will depend in large part on the correct application of the rights of its members. Some of these rights concern the family in an immediate way, such as the right of parents to responsible procreation and the education of children. Other rights... touch the family indirectly: among these, the right to property... and the right to work..."
82 Chisolm, 111 S. Ct. at 2376 (Scalia J. dissenting).
83 This truth as absolute is the very subject himself and therefore does not dissolve freedom but, as we saw above in Berns, is its condition. That the human person - as subject (not choosing objects) - be self determining means that he is free from having any ideology or religious establishment imposed on him. Part of his truth is that he is self determining; the other is that he must seek the true pattern according to which he must make that free determination. He must not be determined - "used" - by another, not even God. As Wojtyla says: "On the part of God, indeed, it is totally out of the question since, by giving man an intelligent and free nature, he has thereby ordained that each man alone will decide for himself the ends of his activity, and not be a blind tool of someone else's ends;" Love and Responsibility, Farrar, Straus, Giroux, 1981, p. 27.
84 Scalia attempts to restrict the subjectivism of "interests" by restricting "rights" as limited concessions from the majority (read government). Thus he rails against "christian" chicken-in- every-pot socialism (see CNS, p. 11) which he thinks, wrongly, to be christian social doctrine. Since he works only with the abstraction of law as his truth, and not with the truth of person as gift, he misses the personalist doctrine of the Church which teaches only the person. Sed in contra: The way of the Church is person, not structure. But the person is a process of two dimensions: he/she becomes self by making the sincere gift of self (Gaudium et Spes #24). These dimensions are the basis of the two fundamental principles of subsidiarity (dignity of persons) and solidarity (service to others). The solution of the Church to poverty is not socialism but the ordinary professional work of persons as the concretion of the self gift. Scalia is stagnating behind the mask (see Noonan) of abstract law without reaching its source and truth which is persons. At best, he jury rigs with originalism. At worst, he errs by calling christianity socialism. Apposite to the point are the observations in the Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, 1986, #75.
85 CNS, op cit., p. 11.
86 A. E. Leff, "Unspeakable Ethics, Unnatural Law," 6 Duke Law Journal (1979), p. 1246.
87 ibid.
________________________________________
posted by The Augustine Club at Columbia University
with permission of the author, October 1997
augustine@columbia.edu
A MATTER OF INTERPRETATION
Robert A. Connor
330 Riverside Drive
New York, N.Y. 10025
By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience,1 Justice Scalia has made the workings of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.
When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: "Do justice, sir, do justice," he responded: "That is not my job. It is my job to apply the law."2 Holmes was also known to comment: "I always say... that if my fellow citizens want to go to Hell I will help them. It's my job"3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not justice but apply the law, and if that law is abortion, "the state should permit abortion, in a democracy."4 The picture that emerged from Scalia's speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the Nuremberg laws, "would have resigned."5
The different facets of the picture were the following:
a) Limitations for a Justice of the Court: It is a mistake to try to "persuade" a Justice of the Court on any point of law since he does not make law. His power is limited to the application of the will of the people brokered by the technical, literal reading of the Constitution and Bill of Rights. Scalia: "It is the Constitution that governs my action... But do it by not persuading me. I'm a worldly judge. I just do what the Constitution tells me to do."6 Therefore, do not talk to him of the philosophy of Constitution, truths grounding the Constitution, etc. Invasion into arenas transcending the Constitution would be flagrant judicial activism and unwarranted migration of power into forbidden territory and therefore, tyranny by what has become a judiciary elite.
b) Extrinsicism of Religion and Morality: Government is as religiously and morally neutral as a "tooth paste"7 or a "crowbar." It may act out "what is ultimately a motivation of morality, but it is a motivation of morality at the level of the individual citizen which then expresses itself in the majority vote that controls what the government does. But the government... in and of itself is totally neutral on those points. It is the people who must bring out the morality dimension that is reflected through the government. And I think that it is inconsistent with democratic theory that the government has an obligation to do that in and of itself."8
This extrinsicism of morality to government "in and of itself" is repeated again: "But that process (Christian inspiration of law) is achieved not within the context of government but outside the context of government, with free men and women persuading one another and then adopting a governmental system that embodies those Christian precepts."9
c) Majority Rule: Part and parcel of this neutrality is the quantitative rule of the majority. The will of the majority is the source of authority, not any presumed truths concerning the person, rights, morality and even less, faith. The government is blind to faith, morality and inherent rights of the person. The person has no intrinsic rights that are presumed. The same were surrendered on entry into the social civil contract. Such presumed rights would contravene the authority and rule of the majority. Whatever they be, they are given by the majority, e.g., the Bill of Rights. Scalia: "The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects -- but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course."10
Scalia concludes his answer with this telling remark: "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy, you want a king to decide what is right."11
d) Democracy as Dogma: Democracy, then, is a political and legal structure incarnating the will of the majority to which one makes an act of self commitment akin to religious faith. Scalia: "Once you adopt democratic theory, it seems to me you accept that proposition. If the people, for example, want abortion, the state should permit abortion, in a democracy.12 If the people do not want it, the state should be able to prohibit it as well. It seems to me the crux of the matter for the Christian in a democracy is to use private institutions and his own voice to convert the democratic society, which will then have its effect upon the government. But I do not know how you can argue on the basis of democratic theory that the government has a moral obligation to do something that is opposed by the people. That works fine in a monarchy, I suppose, but I do not know how you can reconcile it with democratic theory."13
Background: "You Can't Beat Somebody With Nobody"In a 1989 article 14 Scalia ranges over the topic of constitutional adjudication in search of criterion, be it "originalism" which means attending to the original meaning of the constitutional text (not without serious problems), or be it "non-originalism" which means consulting a conceptual agreement or consensus15 in the light of which the Constitution may be interpreted. Confronting the latter, he pins on it an aphorism of Yogi Berra (or perhaps a Mayor Daly): "You can't beat somebody with nobody,"16 since he finds no consensus on the meaning of the human person or on moral principle with which to interpret the Constitution now. Scalia remarks: "The central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned."17 The result is that Scalia, finding "nobody" as authoritative on the level of self evidence18 and therefore truth to direct and order freedom, takes the "somebody" of the constitutional text (and therefore the will of the people as ultimate authority). Anything not in the text does not exist. Religious freedom, freedom of speech, etc. become "invisible" until they reappear in the Bill of Rights as a concession of majority will to the minority. "The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights."19
All this comes down to say that the constitutional structure is not built on truth. Although Scalia can lyricize philosophically "I love natural law"20 or the governmental system "embodies those Christian precepts," in the real world of adjudication he speaks as judge: "But once the Constitution was put in place, it is the Constitution that governs my actions." And this is correct for him to say as judge since his mandate extends to applying the law. But it is not the whole story.
Scalia remarks that he "loves natural law," and he sees the Constitution as "embodying moral values that were central to Christianity." However, he reserves moral values to the sphere of private conscience. There can be no access to those values except by way of private persuasion ("We are fools for Christ's sake"21). In his explicit presentation, the public system of government is a "neutral" mechanical construct. He chides those who contradict this view when he responds: "To say, `Ah, but it is contrary to the natural law' is simply to say that you set yourself above the democratic state and presume to decide what is good and bad in place of the majority of the people. I do not accept that as a proper function." It is not proper function because Scalia presumes by stealth the philosophy of Hobbes and Locke concerning the "state of nature" as the source of rights. Rights are so anemic and so little attached to the person as person that they are "detachable" on entrance into the society and then returned, "secured," by the benevolence of the state. Like them, Scalia presumes that there is no self evident truth because there is no de facto consensus concerning the human person and his rights. The person has no rights in democratic society. "(T)hat's why we have a Bill of Rights. We set them forth in the Bill of Rights. But that is the limit of them, and I do not make up other ones"22 (emphasis mine). The society is not built on natural law or self evidence but on the will of the people as emerging from the state of nature into a social contract.
In "Originalism...," Scalia warns that "the main danger in judicial interpretation of the Constitution ... is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge...Nonoriginalism which under one or another formulation invokes `fundamental values' as the touchstone of constitutionality, plays precisely to this weakness."23 I would like to address this difference. Scalia sets up the difference with the metaphor of choosing between two librarians to hire. One speaks too loudly, the other too softly. He chooses originalism - the written law of Constitution24 ("values... fundamental to our society") as the librarian who speaks too softly in preference to going beyond the text of the Constitution by imposing one's personally preferred values, i.e., the librarian who speaks too loudly. I will argue that Scalia's choice of originalism (legal text) over nonoriginalism (the search for self evidence) begs the question as to the ultimate grounding of authority. From his standpoint as judge, it is proximately the will of the people. But, the will of the people cannot be the grounding absolute of authority since freedom always raises the question of truth, and the human will is not its own truth since the indeterminacy of human freedom gives witness to the "unfinished"25 state of man. To abandon the search for truth as the authority for freedom's use is to abandon the human person ultimately to being used by forces more powerful than himself. It would mean to abandon him to the tyranny of totalitarianism which in this case would have a democratic stripe. It would appear to be a "rule of law" but in reality it would be a dictatorship of the arbitrary will of individuals. The Pope remarks:
"(T)otalitarianism arises out of a denial of truth in the objective sense. If there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people... Thus, the root of modern totalitarianism is to be found in the denial of the transcendent dignity of the human person who, as the visible image of the invisible God, is therefore by his very nature the subject of rights which no one may violate... Not even the majority of a social body may violate these rights, by going against the minority, by isolating, oppressing, or exploiting it, or by attempting to annihilate it."26
Therefore, we are confronted with Scalia's assertion that "(t)he central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned," and the Pope's counter assertion that "(i)f there is no transcendent truth, in obedience to which a person achieves his full identity, then there is no sure principle for guaranteeing just relations between people." John Paul II concludes that
"if there is no ultimate truth to guide and direct political activity, then ideas and convictions can easily be manipulated for reasons of power. As history demonstrates, a democracy without values easily turns into open or thinly disguised totalitarianism."27
Truth: The Absolute As Key to Freedom
To deepen the perspective, Walter Berns testifies that, at the founding of the country, the freedom of self determination vis a vis religion, speech, etc. rests, indeed, on truth as having an absolute dimension.28 He remarks: "These principles (of free government) require the establishment of religious freedom, the right of men to hold whatever opinions they choose respecting God or gods. That men must have this choice is not itself a matter of choice or indifference"29 (underline mine). He continues: "Freedom of religious opinion is absolute... the United States is founded on a `political creed,' the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold' to be `self-evident' constitute a creed on which the country was founded."30 Later, Berns insists that "they (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth. Men are endowed with rights to life, liberty, and the pursuit of happiness,.... If this were merely an opinion, it would be necessary to hold as legitimate the claim of a Charles I to suppress religious freedom and replace it with an established church. Or... if this `truth were but an opinion, it could not protect free inquiry into other opinions"31 (bold mine).
It is clear from words such as "self-evident," "palpable," "scientific," not "opinion," "discovered by the new political science" that the truth which grounds freedom of religion is an absolute, even if that absolute has been conceptualized as the "philosophoumenon" of Hobbes's state of nature. A transition took place in Berns from his 1985 "The First Amendment and the Future of American Democracy," to his 1987 "Taking the Constitution Seriously," where he repudiates the absurdity of the "right to be let alone"32 which characterizes the "state of nature." He ends by "taking the Constitution seriously," which means the literal text in the positivistic sense of Scalia's "somebody" (the librarian who speaks too softly). To overcome the porosity of the liberal minded judges for whom there is no truth and therefore no end to the invention of absurd "rights," he opts, like Scalia, for the text of the Constitution which "derives its binding authority... only from the fact that it is an act of the people in their constituting capacity."33 But again, this leaves us in the throes of the conundrum in which we ask: what is the truth - the self evidence - which can guide the will of the people to goodness?
The Search For A "Deeper" Meaning of "Truth"
Original Self Evidence: Historically, at the founding of the country, there was a consensus in truth so strong that it was perceived as self evidence in the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...." Berns remarks: "There was no dispute with respect to the principles on which the Constitution was built."34 "The agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the Constitution was built; stated in its most radical form, they all agreed that our institutions do not presuppose a providential Supreme Being."35 Again: "the United States is founded on a `political creed,' the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold' to be `self evident' constitute a creed on which the country was founded... This may explain why Jefferson could say that difference of opinion is advantageous in religion and harmless in physics and geometry, and not say it regarding the fundamental principles of government"36 (bold mine). And again: "They (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth... If this were merely an opinion... `it could not protect free inquiry into other opinions.'"37
What is of interest here is the identity between absolute and self-evident truth.38 The need for the absolute is clear enough in Berns that he concludes that if you treat religious and political concepts as equally relative, and there is no absolute, then "the Constitution rests on nothing at all - or rather, on no principle immune from the whims of transient majorities"39. The shame is that Berns, having correctly identified the need of truth in its absoluteness as the grounding of the Republic, fell in with the Enlightenment rubric that all knowledge must be conceptual, and then assigned as content to that absolute concept the philosophoumenon of Hobbes's state of nature.40 Then finally disabused of that fallacy and not realizing that the truth of the person and rights are to be found on a second tier of experience (as we shall see), he collapses into Scalia's textual originalism where he hopes the secretary who speaks too softly can ward off the subjectivism dug up from the liberal penumbra. He concludes that "The only appropriate agenda for conservatives41 is to defend the liberal Constitution - if necessary, to defend it from the liberals - because by that Constitution rights are secured. This knowledge - that as far as the national government is concerned, security for rights is found in the structure elaborated in that text - could be one of the happy lessons learned in this bicentennial season"42 (underline mine).
Universal Christian Faith: This absoluteness, appearing as consensus and self evidence, coincided historically with an almost total presence of Christian faith as praxis in the colonies. Benjamin Hart asserts that "America at the end of the 18th century was overwhelmingly Protestant, and of the dissident variety. Though precise figures on church membership are not available, we do have numbers on church bodies. In 1775 there were 668 Congregational churches; 588 Presbyterian; 494 Baptist; 310 Quaker; 159 German Reformed; 150 Lutheran; 65 Methodist; 31 Moravian; 27 Congregational- Separatist; 24 Dunker; and 16 Mennonite churches. The Anglican Church had 495 congregations, making it a decided minority in America at the time of the revolution. About 75 percent of all Americans belonged to churches of Puritan extraction. When dissenting Protestants and Anglicans are combined, we find a religious composition in America that was 98.4 percent Protestant, 1.4 percent Roman Catholic, and three-twentieths of one percent Jewish."43 Besides the numerical presence of believing Christians,44 Berns reports that "(t)o one degree or another, and in one or another of its christian varieties, over half the states had an established religion..."45. Concerning the impact of this on the societal ethos, Washington remarked in his farewell address: "Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports... And let us with caution indulge the supposition that morality can be maintained without religion... (R)eason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."46 Jefferson himself (enemy of "monkish ignorance and superstition"47) questioned whether "the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?"48 Tocqueville, in summing up his observations on the country, remarked: "I do not know whether all Americans have a sincere faith in their religion - for who can search the human heart? - but I am certain that they hold it to be indispensable to the maintenance of republican institutions. This opinion is not peculiar to a class of citizens or to a party, but it belongs to the whole nation and to every rank of society."49
Christianity Reveals Person and Rights: The task now is to take the self evidence (absoluteness) of the founding principles and the universally held christian faith and to see if they can answer Scalia's conundrum as how "to discern a difference between those political values that (the justice) personally thinks most important and those political values that are `fundamental to our society.'"50 The question really comes down to what "those political values... fundamental to our society" are.
The Declaration of Independence declares that the human person and his right and dignity to self determine are the fundamental political value. Three fourths of that document consists in taking umbrage at the violation of these self evident rights and therefore, "(t)hat these United Colonies are, and of Right ought to be Free and Independent States..." This was declared to be self evident and of such a forceful and non debatable character that there was no reasoning beyond that bold assertion. It must be concluded that the self evidence was pre-conceptual.51
Now, if the principles on which the Republic is built are pre- conceptual and therefore absolute and self evident as to obviate any ideological debate,52 and Scalia finds that now there are no absolutes commanding universal consensus in whose light he can confidently adjudicate,53 would it not seem reasonable to investigate whether there may be a kind of truth that is pre-conceptual, i.e., experiential and of another order? Perhaps, what has traditionally been referred to as "natural law" may be a second tier of experience massively lived out at the moment of the American founding and which coincided with, or was caused by, the almost universal presence of christian faith. And that being so, in order to beat "somebody with somebody," we would have to have recourse to that experience and that faith again.
My proposal then is to explore what kind of truth is that self evidence and how could christian faith have played into its formation. That is, does the exercise of christian faith yield the consciousness of an absolute - a self consciousness distinct from conceptual truth - which is self evident?
Truth On A Second Tier of Experience
The Phenomenological "Pause:" The first order of business is to determine whether there is another level of experience and knowledge which is legitimate, i.e., objective and realist but not the object of the exterior senses. Wojtyla offers that besides the direct experience of external things, there is also the direct experience of one's own acting: "it seems most improbable that man with his conscious acting or action is not given as the object of experience."54 Suffice it to say that since Descartes, reality has been epistemologically restricted and reduced to exterior sensation.55 What is externally sensed is measured, abstracted and forms a propositional kind of knowing which could be called "cosmological" because it reduces or objectifies reality to the state of cosmos or "thing." Truth on this level consists in a conformity of propositions of logical subjects and predicates to sensed reality. However, the interior, non sensible yet universal experience and consciousness of the "I" has been eliminated as empirically real by being absorbed into the cartesian self as "consciousness" (res cogitans), - the unreal "I" of idealistic subjectivism - not to re-emerge as real until our own day in Karol Wojtyla who retrieves it ( the "I") as "agent of the moral act."56
Wojtyla's philosophic contribution consists in "pausing" at the irreducible experience of the subject freely determining not only the kind of action to be performed but the very self as cause of the action. The pause must take place because the experience of self determination is empirical as real and therefore demands the attention of cognition on this new second tier of experience.57 He remarks: "Lived experience essentially defies reduction."58 Having lost the real "I" in the reductive rationalism of the Enlightenment, until now we have not known how to pause at this irreducible reality.
Hence, Enlightenment man has been left with the welter of conflicting conceptual (reductive) ideologies as the only valid truth with no deeply experienced north that could give them meaning. Besides, these concepotualizations discredit each other by their partial and mutual contradiction,59 thus leaving the mind in a state of skepticism.60 Hence, Scalia's Yogi Berra: "You can't beat somebody with nobody" and Bork's perpetual motion machine testify to the inconclusiveness of working with only this kind of cognition. It is an epistemological dead-end which leaves the positivism of the Constitutional text as the only escape. But it escapes into totalitarianism, as we saw on page 11.61
The Recovery of the "I" and Christian Faith
The proposal here is to suggest that the self evidence of the "I" at the core of the first of our legal documents, the Declaration of Independence, can only be fully retrieved on this second epistemological level of experience where Christian faith is found as moral act - not abstract essence62 - producing both the anthropological experience of self gift and the consciousness of the "I" sufficient to generate a democracy. And the reason is that only Christian faith demands the response of the whole person, and therefore, the "I,"63 to the revealing Person of Christ.64 It initiates an epistemology of self experience rather than an epistemology of sensation and abstraction.
Christian faith offers the existential encounter of the revealing Person to the believing person in the prototypical exchange between Christ and Simon son of John. The "non-I" of Simon is transformed into the christian "I" of Peter. He goes through a name change because he went through an anthropological transformation by entering into the prayer of Christ which was equivalent to "becoming Christ."65 Ratzinger describes the nature of Christ as Person to be pure Trinitarian Relation to the Father - Truth in Person - Who, when incarnate as the man Jesus, translates as prayer. Therefore, "we see who Jesus is if we see him at prayer"66 (underline mine). Simon is called into this prayer (as a lived experience of his "I"), and by so doing becomes like Jesus' "I."
Since fundamental epistemology teaches that like is known by like, Simon's interior transformation of prayer gives him a likeness to Christ such that he experiences in himself what it is to be like Christ in Himself, and therefore, to have a direct, moral experience of being the "Cornerstone"67 who is Christ.68 This validates the name change from Simon to "Petros." Stone mimics stone, and hence, only stone "knows" stone. As the experience of being Simon is transformed into the experience of being Christ, the pre-conceptual consciousness of the "I" of Simon becomes the pre-conceptual consciousness of being Christ. The metaphysical "advance" boosting Simon into the self gift of prayer, produces the epistemological "advance" from Simon to Peter. There is now a full self-evident realization of the dignity of the person and rights which can become, within the proper historical conditions, the grounding truth of American democracy.
The men who had not entered into the prayer of Jesus (with the gift of their "I") and who were working within an epistemology beginning with sight, sound and abstraction, did not recognize him.69 On the other hand, for those who had entered and lived the moral act of faith which is prayer, that pre-conceptual experience turns conceptual upon reflection and Simon-now-Peter is able to formulate as words, "You are the Christ, the Son of the living God."70 Whereupon Christ changes his name to conform to this new metaphysical anthropology: You are Peter, and upon this rock I will build my Church..."71 Stone is named from stone.
This unique form of consciousness of the self as total gift could only take place in the act of Christian faith because Christian faith is uniquely an encounter between persons and not primarily ideology. Christ is the only God that has become man. Christian faith alone is gift of self. Hence, the resonance of persons produces the unique anthropological experience of likeness between two "I's" and therefore confers unparalleled dignity while creating a universal consciousness of equality in all partakers. No matter how varied we all are in talents received, we can be equal in giving it all back. Only christian faith - as life, not concept - would give this sense of radical equality which finds its secular counterpart in representative government and the vote. Thus, I propose that the "I" who is discovered in this act of faith is the "I" of dignity and rights who is the grounding principle of the American founding. The self determination that brought about the gift of self to the revealing Christ, is the same kind of self determination that founded the secular structure of representative government in 1776 and 1789. That is to say that America was a christian people before it was a representative government authorized by vote.72
Phenomenology Interprets Self- Evidence
Wojtyla has given us a phenomenological tool making it possible to "pause" at this experience of the "I" in the moral act (in our case, the act of faith), and by so doing has made it possible to pause at the act of faith as the anthropological experience of person and rights. Hitherto, we have had neither the tool, the pause, nor the recovery of the "I." Hence, he makes it possible to distinguish between subjective "interests" which are subjectivist wishful thinking and "those political values that are `fundamental to our society'"73 which are the subject as truth.
The proposal, then, is to see Christian faith rather than the ideological philosophoumenon of the "state of nature" as the true historical source of the consciousness, the self- evidence, of the dignity of the human person and his rights. Instead of the "right to be let alone" which is really a residue of sin which leaves the person in darkness as to the truth of imaging God,74 Christian faith is the unique anthropological act which restores to self evidence the dignity of the human person. As such, christian faith as a relational act is fundamental for a secular democracy which pretends to build itself on that dignity. In short, there is no grounding self evidence for the state when there is no public provision and space for christian faith. That is to say, "reason shut in on itself does not remain reasonable or rational... Reason needs revelation in order to be able to be effective as reason. The connection between the state and its Christian foundations is imperative precisely if it is to remain the state and be pluralist."75 The state needs the act of living faith, i.e., the experience of truth as an absolute, for its own rationality and freedom. But it needs it as pre-conceptual self evidence, not as abstraction for in that case the Church would become theocracy (the incarnation of religious ideology) and pluralism would cease.
Rights: The Truth Content of "I"Dignity and rights, understood as dimensions of the person ("I"), are not a subjectivist grab bag from which any self interest can be extracted, much less the rationalist lucubration of selfish isolation in the "state of nature." Scalia offered that it was "very difficult for a person to discern a difference between those political values that he personally thinks most important and those political values that are `fundamental to our society'." His supreme pique seems to be occasioned on the one hand by the "transformation of charity into legal entitlement" or human handicap system of affirmative action which "has produced both donors without love and recipients without gratitude"76 while on the other by the noxious notion of entitlement to abortion, pornography, homosexual marriage, etc. To stop this destructive avalanche, finding "nobody" as truth, he recurs
to constitutional text, positivistic argumentation and wilting sarcasm. But the problem continues to be truth, and its non- perception continues to be caused by its non conceptual character77 while being misrepresented by the bogus mis- conceptualization of the "state of nature." To be the man of the hour, Scalia would have to acknowledge the reality of self evident truth originating from christian faith, in spite of there being no consensus. To do so would be enormously pedagogical78 whether in the majority or in dissent. He would not be teaching religion ideologically, or certainly less, imposing religion institutionally, but acknowledging the religious-truth- now-secular-principle of the person as gift. This "giftedness" whereby one becomes another Christ79 is the truth of the person which grounds what we understand to be "rights." These are certain ways that the "I," discovered in the act of faith, gives itself to God and to the others in the family and civil context. That is, once the person is disclosed by the experience of being gift - both as solidarity (responsible for the others) and subsidiarity (responsible for oneself)80 -, then the "rights" are known as experienced and self evident.81 They are not simply "interests" that can be whimsically snatched from the subjectivities and whims of populace or Court Justices as from a "tinkerer's toolbox."82 They are "objective" dimensions of the person ("subject") who has the unique dignity of determining himself to be gift in the act of imaging the divine Persons who are pure Gift. They are inalienable and inseparable from the person as ways in which he/she lives that one absolute, yet singular, truth.83 They are not gifts "conceded" to the person by the largesse of the majority since, being inalienable from the the being of the person, they cannot be removed in any way, less by "entrance" into society.84 Rather, they are the conditions whereby the person becomes gift and needs service. Their limit is the objective truth of the person, and although that truth does not change, our awareness of it does, provoking us to be open to further developments. How else to explain the qualitative and quantitatively development in Magisterial teaching on rights as seen in Gaudium et Spes #27 (see footnote #79)!
The bulk of Scalia's talk at the Gregorian centered correctly on the confusion of rights with "interests" and the serious damage that is done to persons, government and christianity itself by the "transformation of charity into legal entitlement."85 Since person and truth have no public validity for him, the giftedness of the person to others has no public validity. Hence, Scalia, not perceiving the person and less his constitutive social dimension as the prius of criterion, presumes that Catholic social teaching "must incline us toward that system ("welfare socialism") whereby we would be obliged to put a `chicken-in-every-pot.'" He retorts, "the answer, I think, is no." Sensing correctly the materialism of welfare socialism, he rejects it, but he does so under the Enlightenment aegis of there being no personal rights at all save those conceded by the state. The intrinsically relational person becomes progressively individualized and hence materialized to his own detriment and the detriment of democratic society.
ConclusionThe present discussion concerning the judicial usurpation of politics by the activist side of the Court and the conservative rejoinder from the side of juridical positivism seems to exhaust the noetic options and leave us at an impasse: either go under as a democracy because there is no truth to order freedom, or start a fight to establish new structures. But this exhaustion and impasse take place only on that level of experience which gives rise to abstract thought where freedom and truth are inversely proportional. The more truth, the less freedom; the more freedom, the less truth.
The burden of this paper has been to suggest that there is second level of experience which is also empirical and therefore real where one experiences the "I" as act. Here, freedom and truth are directly proportional not as objectivized "this" and "that," but as dimensions of the same personal subject. The paradigm act of the "I" is christian faith - a moral act - where the "I" enters as gift of self into a relationship with the revealing Christ, producing an experience and consciousness of self as freedom and self as truth. That is, freedom is experienced as dignity of self and right to self-determination precisely when the "I" is given as gift, which is its truth. The historical conditions of the country's founding suggest that the consciousness of this christian experience was surely the dynamic establishing the American people as people and thus the core political principle from which the originating law of the Declaration of Independence and the definitive Constitution emanated. I am proposing that christian faith is the moral, anthropological - let us say secular - act which has becomes the political principle of the American political foundation.
Corresponding to the two levels of experience, the objectivizing sensation/abstraction, and the subjective gift of the "I," the noun "people" has two epistemological meanings which we could materialize as "thick" and "thin." Thin as the quantitative category of the majority which corresponds to the objectivizing sensation/abstraction; thick as rights of the subject on the level of self experience as gift. With this double epistemological experience, we can propose a resolution to the double meaning of "people" in constitutional interpretation as suggested by Arthur Allen Leff: "people rightly see themselves simultaneously as part of `the people' and as autonomous persons."86 As a result, the Constitution "commands that both of these conceptions of the final lodging place of evaluative power be simultaneously reflected in the operations of the American polity."87 Together with the abstractive reasoning which yields the notion of "the people" for majoritarian head counting on a quantitative level and political hegemony over the minority, christian faith produces the consciousness of the intrinsic worth of the individual person whose value as person transcends the quantitative totality of the entire body politic. Hence, constitutional interpretation demands the deployment of both epistemological levels of experience.
Judicial review, then, in order to interpret the Constitution in a truly objective way, needs to pay attention to objective head counting but also to the value of the subject which validates majoritarianism in the first place while grounding the inviolable character of the human person as possessor of human rights. Constitutional interpretation will have to breathe the epistemological atmosphere with the lungs of both first and second tiers of experience. The law must be applied as it reads, but that reading must be interpreted within the christian anthropology that inspired it. To do otherwise is to interpret it in only one dimension and to fail a people in desperate need to understand themselves precisely as people forming a communio personarum, a United States. They continue to need the foundation of the gift of self which is christian faith as anthropology. And it must be kept clear that christianity does not enter the public square as christian theocracy nor church establishment nor creed. It enters precisely as gift of self in secular work and service.
Hence, Scalia cannot say (as he does) that "if the people... want abortion, the state should permit abortion, in a democracy." Maybe in a democracy, but not in this democracy! To affirm that the Court has nothing to say about abortion, or assisted suicide, or homosexual marriage, etc. because the Constitution has not written a word about it, is not to say enough about the United States nor the Constitution.
Since Scalia is a practical man ("I'm a worldly judge"), when the stakes are high, the most practical thing to do is to be right. A man, committed to truth, in a strategic position and with the political prudence to fight only necessary battles, could galvanize an entire people who await leadership. In opting for truth without abandoning the mandate to apply the law (which is not legal positivism), Scalia may be surprised by the "signs of the times" and the transformations being wrought here in abscondito not dissimilar to 1989 in Central and Eastern Europe. His destiny, which I have been privileged to see emerge over four decades, may include his being the key protagonist in the understanding and praxis of the United States as the universal paradigm of state in a world fast becoming one world in the next millennium.
On June 6, 1952 in Xavier High School after a final exam in Greek, Justice Scalia witnessed Morton Hill, S.J. write the words "diokete ten agapen" (pursue Love) on the blackboard as final, personal testament to his home room Greek and Latin class. Since Christ's Love and His Truth are identical with His Person, perhaps the writing of those words has now found the person and the historical context for its implementation: "diokete ten aletheian:" pursue Truth.
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Notes
1 At the Pontifical University Gregoriana in Rome on May 2, 1996.
2 Robert H. Bork, The Tempting of America, The Free Press, 1990, p. 6.
3 Holmes to Laski, March 4, 1920, Holmes-Laski Letters, vol. 1, p. 249.
4 Catholic News Service, June 14, 1996, p. 13.
5 CNS, op. cit., p. 16.
6 CNS, op. cit., p. 16.
7 CNS, ibid., p. 9.
8 CNS, ibid., p. 14.
9 CNS, ibid., p. 16.
10 CNS, ibid., p. 14.
11 CNS, ibid., p. 14.
12 Scalia has officially gone on record in Casey, 112 S/ Ct. 2791, 2873, saying that "The States may, if they wish, permit abortion-on-demand."
13 CNS, ibid., p. 13.
14 University of Cincinnati Law Review, 1989, Vol. 57, No. 3.
15 Scalia remarks: "(I)t is not very helpful to tell a judge to be a `nonoriginalist.' If the laws is to make any attempt at consistency and predictability, surely there must be a general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the `fundamental values' that replace original meaning to be derived from the philosophy of Plato, or of Locke, or of Mills, or Rawls, or perhaps from the latest Gallup poll?" ibid., p. 855.
16 ibid., p. 855.
17 ibid., p. 862.
18 Robert Bork affirmed the same skepticism as to finding any conceptual consensus as to the meaning of man and "what man should become." He likened the prospect to the perennial and frustrating attempt to develop a perpetual motion machine. In line with Scalia's "You can't beat somebody with nobody," Bork urges that "the difficulty with the idea of perpetual motion... is not the accumulation of disappointments in all those garages but there is never going to be such a machine... (T)he problem with overarching systems of morality is not simply that the law professors are not bright... The problem is that this enterprise is doomed to failure." The Tempting of America, The Free Press, 1990, p. 256.
19 CNS, op. cit., p. 14.
20 CNS, op. cit., p. 16.
21 Jeffrey Sheler, "In Search of Jesus," U.S. News and World Report, April 8, 1996, p. 46.
22 CNS, op. cit., p. 15.
23 op. cit., p. 6, footnote 14.
24 Scalia describes the Constitution as "in its nature the sort of `law' that is the business of the courts - an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law;" in "Originalism: The Lesser Evil," op. cit., p. 855.
25 "(m)an is an unfinished being, as indicated precisely by this `fissure' in him open to the infinite. According to this view, other natures in the world of nature are in their own way `finished beings,' while man, open to the absolute, awaits his completion;" John Paul II and Andre Frossard, Be Not Afraid, St. Martin's Press, 1984, p. 95.
26 John Paul II, Centesimus Annus, #44.
27 ibid.
28 "They (the founding Fathers) were fully convinced that the Constitution of the United States derived from a `self- evident' truth respecting man's nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth; The First Amendment and the Future of American Democracy, Gateway Editions 1985,ibid., p. 146; "The change (permitting Communists to teach in the Universities) has been dramatic, but it is not a change that reflects a change in Communism.... It is a change that reflects, instead, the fact that the Constitution is now held to stand for the equality of all ideas;" ibid., p. 184, et seq.
29 The First Amendment..., ibid., p. 18; (emphasis mine)
30 ibid., p. 83
31 ibid., p. 146.
32 "There is, and can be, no general constitutional right to be let alone. Let alone to do what? To worship? Absolutely. To read? Yes. To waste time? Even that. But to rob a bank? To counterfeit money? To `utter' checks? To make noise? To refuse to be vaccinated? To shoot heroin? To manufacture it? To make child pornography film? In countless ways the law invades privacy, even...the privacy of the home. So it is not enough to speak abstractly of a right to be let alone..." He concludes that if rights are reducible to "interests," then we would revert to the "state of nature" where life would be "solitary, poor, nasty, brutish, and short." However, Berns here has lost his taste for "truth" since his repudiation of granting "interests" the status of "rights" is its impossibility, "and it is impossible because not all interests can be satisfied." See Taking the Constitution Seriously, Madison Books, 1987, p. 226-228.
33 Taking the Constitution Seriously, op cit. pp. 236-237.
34 The First Amendment and the Future of American Democracy, op. cit., p. 10.
35 W. Berns, The First Amendment and the Future of American Democracy, op. cit., p. 10. Note that the point is not whether "our institutions do not presuppose a providential Supreme Being" but that they are in massive agreement on self-evident first principles. My purpose is to show that the universal act of christian faith yields a non-conceptual knowledge of self and rights by the experience of the self as gift. Conceptually, it presupposes a "providential Supreme Being" while experientially it gives a consciousness of "I" and rights. It is on this Christian exercise that the principles of democratic government rest.
36 ibid., p. 83.
37 ibid., p. 146.
38 That Berns think that the absolute be a political concept like the right to be left alone deriving from the state of nature is irrelevant to my thesis. What is most significant is that he saw that historically there was a consciousness of absolute truth such that it was considered self evident. That the content of that concept be "that our institutions do not presuppose a providential Supreme Being" is irrelevant because the character of the truth that I am proposing is not primarily conceptual with but experiential on a second tier of experience as explained below. However, the absoluteness of it as self evident to all is vital to be recognized as truth. To not establish this is already to fall into the trap of positivism as it seems Scalia has.
39 ibid. p. 146.
40 "(S)o far as the Constitution of the United States is concerned, in the beginning was not the word (`and the word was with God, and the word was God'); in the beginning was the state of nature, and the word was with the philosophers of natural rights. It was from them that the Founders learned the new `science of politics.' and with it the principles of free government;" ibid., p. 19.
41 By "conservatives," I take him to mean those seeking truth.
42 Taking the Constitution Seriously, op. cit., p. 241.
43 Benjamin Hart, Faith and Freedom: The Christian Roots of American Liberty, Here's Life Publishers, 1988, p. 337.
44 Concerning the Christianity of this religious phenomenon, Patrick Henry remarked at the Constitutional Convention that "It cannot be emphasized too strongly or too often that this great nation was founded not by religionists but by Christians, not on religion but on the Gospel of Jesus Christ."
45 "Taking the Constitution Seriously," op. cit., p. 111. See also: "The proscription of religious tests in Article VI (of the Constitution) (at that time) only to national office or national trust, and any attempt to broaden its coverage to forbid state religious tests would almost surely have failed.;" ibid., p. 167.
46 ibid., p. 13.
47 Letter of Thomas Jefferson to Roger C. Weightman, June 24, 1826: in "Taking the Constitution Seriously," op. cit. p. 244.
48 W. Berns, "The First Amendment and the Future of American Democracy," op. cit., pp. 13-14.
49 Alexis de Tocqueville, Democracy in America, Vol. 1, p. 316.
50 op. cit., p. 863.
51 "What is noteworthy in the debates leading to the adoption of the First Amendment is the absence of that kind of religious problem. It is not the differences among the participants in that debate but rather the extent of their agreement that is remarkable. What divided them were differences on what can only, in the light of that history, be called secondary issues... Compared to these differences, the agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the constitution was built..." (bold mine); Berns, The First Amendment... op. cit. p. 10.
52 Scalia asserted at the Gregorian that "the Supreme Court of the United States, no federal court to my knowledge, in 220 years has ever decided a case on the basis of the Declaration of Independence. It is not part of our law. It expresses the underlying sentiment which gave rise to the creation of this Constitution. But it is the Constitution that is the document that governs us" CNS, p. 16. The reply of Walter Berns is the following: "In the various official compilations of American laws -The Public Statutes at Large of the United States of America (1854), Revised Statutes of the United States (1878), The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States (1877), and even the United States Code - the Declaration of Independence enjoys what might be seen as pride of place, ahead of Articles of Confederation, the Northwest Ordinance, and the Constitution and its amendments. What is noteworthy here, however, is not the Declaration's place in that list - after all, the Declaration is the earliest of the documents listed chronologically - but, rather, its presence in that list, a list of legal documents" (underline mine); Taking the Constitution Seriously, op. cit., p. 23.
53 Let us remind ourselves of the spur under Scalia's saddle: "I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned;" "Originalism: The Lesser Evil," op. cit., p. 862.
54 The Acting Person, D. Reidel Publ. Co., 1979, p. 9.
55 "To reduce the range of experience to the functions and the content of sense alone would lead to deep contradictions and serious misunderstandings... what then is given directly in experience? Is it only some `surface' aspect of the being called `man,' an aspect detectable by sense, or is it man himself?... It does not seem reasonable to believe that we are given only some more or less undefined set of qualities in, or rather of, man, but not man himself. Moreover, it seems most improbable that man with his conscious acting or action is not given as the object of experience" ibid., p. 8-9.
56 Since the moral act is ascertainably real, and doing follows on being, the being of the doing must be real. And since my "I" self determines itself when it causes the act, and there is an inner experience of that self determination a (a passage from real potency to real act), there is a direct experience of the "I" as reality, distinct from the subjective penumbra of consciousness which has dominated the Enlightenment since Descartes'res cogitans. Phenomenology is the method that gives us respect for this experience and legitimates the "pause." This is the heart of Wojtyla's philosophy. See Wojtyla's Participation or Alienation,? in Person and Community, Lang, 1993, p. 199.
57 "This `pausing' should be understood in relation to the irreducible. The traditions of philosophical anthropology would have us believe that we can, so to speak, pass right over this dimension, that we can cognitively omit it by means of an abstraction that provides us with a species definition of the human being as a being, or, in other words, with a cosmological type of reduction (homo = animal rationale). One might ask, however, whether in so defining the essence of the human being we do not in a sense leave out what is most human, since the humanum expresses and realizes itself as the personale." He continues: "Lived experience essentially defies reduction. This does not mean, however, that it eludes our knowledge; it only means that we must arrive at the knowledge of it differently, namely, by a method or means of analysis that merely reveals and discloses it essence. The method of phenomenological analysis allows us to pause at lived experience as the irreducible... Such a disclosure - the deepest possible disclosure - would seem to be an indispensable means for coming to know the human being as a personal subject...." Subjectivity and the Irreducible in the Human Being, in Person and Community, op. cit., pp. 215-216.
58 ibid.
59 Enlightenment rationalism construes freedom as relativizing reality and thought. Wherever there is the absolute, there is no freedom. Hence, truth (which is an absolute in some way) is separated from freedom and the two become inversely proportional. The more truth, the less freedom; the less truth, the more freedom. It will only be on a deeper level of experience and consciousness that Christ's "the truth will make you free" (Jn. 8, 32) can be understood. It will be important to revalidate this interior level of moral experience available to phenomenology (and not to positivism) where truth is experienced as an act of free self gift, and in the very experiencing of this truth of the "I," one becomes conscious of the complementary pluralism of these free absolutes.
60 "The problem (with overarching systems of morality) is that their enterprise is doomed to failure, no matter how intellectually adroit they are. Their quest is doomed for reasons given by MacIntyre:
The most striking feature of contemporary moral utterance is that so much of it is used to express disagreements; and the most striking feature of the debates in which these disagreements are expressed is their interminable character... (T)hey apparently can find no terminus. There seems to be no rational way of securing moral agreement in our culture; (A. MacIntyre, After Virtue, 51 (2nd. Edition 1984 at 6).
This is true, he says, because there is no longer a consensus about what man should become. Only a shared teleological view of the good for man can lead to common ground about which premises of morality are sound.... (O)ur public moral debates over such matters as abortion and capital punishment have been interminable and inconclusive because we start from different premises and have no way of convincing each other as to which are the proper premises... If we have no way of judging rival premises, we have no way of arguing to moral conclusions that should be accepted by all." R. Bork, The Tempting of America, The Free Press, 1990, p. 256.
61 It may be useful to consider John T. Noonan, Jr.'s thesis that law tended to be made in a state of abstraction and that (n)eglect of persons... had led to the worst sins for which American lawyers were accountable." His thesis calls for an historical epistemology that will retrieve the "I" (the person) from behind the "masks" of abstract categories where it is hidden and imprisoned. He concludes: "The central problem, I think, of the legal enterprise is the relation of love to power. We can often apply force to those we do not see, but we cannot, I think, love them. Only in the response of person to person can Augustine's sublime fusion be achieved, in which justice is defined as `love serving only the one loved;'" Noonan most tellingly quotes Oliver Wendell Holmes, Jr. re the nature of persons in the law: (P)ersonality is an illusion only to be accepted on weekdays for working purposes. We are cosmic ganglia; so I believe as much as I believe anything. And personality is merely the gaslight at the crossroads with an accidentally larger or smaller radius of illumination." Persons and Masks of the Law, The Noonday Press, 1976, p. xii and p. 106. An account of the epistemology of non-ganglionic persons is the aim of this paper.
62 "The most fundamental of the first type of error occurs when the faith is considered as a sort of abstract essence. The legitimate distinction between faith and its expression can lead those concerned with inculturating the faith to search for or create an unincarnated `Christianity'... This temptation to preach an abstract Christianity can be offset by a steady concern for Christological anthropology, that is, by an appreciation and understanding of the human based on revelation in Jesus;" Francis E. George, OMI, Inculturation and Ecclesial Communion, Urbaniana University Press, 1990, p. 221. Christological anthropology is the shift from object to subject where faith is the reciprocal moral act of response, the gift of self, to the gift of the revealing Self of Christ.
63 "Recollectedness, therefore, is the condition which enables man to say, `God is here, the Living, the Holy of whom Revelation speaks, and here also am I.' But not the vague I of everyday life, that confused something which sits down at table, walks through the streets of the town, works at the office, but the real I - the self. This is the I which makes me responsible for my existence, that I - humble and poor though he may be - which is unique and irreplaceable and which God had in mind when He created me and to which the words `God and my soul and nothing else in the world' apply. That I awakens only before God" (underline mine). R. Guardini, The Art of Praying, Sophia, 1985, p.18.
64 "(A) person's true identity is only fully revealed to him through faith, and it is precisely from faith that the Church's social teaching begins;" Centesimus Annus, #54. It must always be recalled that "Christian faith... is not simply a set of propositions to be accepted with intellectual assent. Rather, faith is a lived knowledge of Christ, a living remembrance of his commandments, and a truth to be lived out;" Veritatis Splendor, #88, 5.
65 From a technical point of view, the anthropological change is metaphysical, i.e., from potency to act, while epistemologically, it is from object to subject. That is to say, it is one thing is to speak about the subject, another is to experience (erlebnis) and be conscious of being the subject. For example, even when Thomas Aquinas speaks of the person and subject, he speaks within the epistemology of objectification, i.e., "about." Wojtyla remarks: "We can see here how very objectivistic St. Thomas' view of the person is. It almost seems as though there is no place in it for an analysis of consciousness and self-consciousness as totally unique manifestations of the person as a subject.... (T)here seems to be no place for it in St. Thomas' objectivistic view of reality. In any case, that in which the persons's subjectivity is most apparent is presented by St. Thomas in an exclusively - or almost exclusively - objective way.... (I)t would be difficult to speak in his view of the lived experiences of the person (underline mine);" Thomistic Personalism, in Person and Community, op. cit., pp. 170-171.
66 J. Ratzinger, Behold the Pierced One, Ignatius, 1986, p. 19.
67 Acts 4, 11: "This is `The stone that was rejected by you, the builders which has become the corner stone'"; Eph., 2, 20: "you are built upon the foundation of the apostles and prophets with Christ Jesus himself as the chief corner stone...."
68 The mechanism of this transference is the following: "Self- consciousness, like self-possession, as the name itself suggests, is not transferable beyond the individual concrete I, or self, that experiences itself and consequently understands itself in this manner. Although I cannot experientially transfer what constitutes my own I beyond myself, this does not mean that I cannot understand that the other is constituted in a similar fashion - that the other is also an I. For the other to be so constituted, self-possession conditioned by the other's own self- determination will be essential. An understanding of this truth defines to some extent the relation of my own concrete I to all other human beings. They are not just others in relation to my I; each of them is also another I. The other is always one of those I's, another individual I, related experientially in some way to my own I.... Thus the reality of the other does not result principally from categorical knowledge, from humanity as the conceptualized essence `human being,' but from an even richer lived experience, one in which I as though transfer what is given to me as my own I beyond myself to one of the others, who, as a result, appears primarily as a different I, another I, my neighbor. Another person is a neighbor to me not just because we share a like humanity, but chiefly because the other is another I," (underline mine); K. Wojtyla, Participation or Alienation? in Person and Community, op. cit., pp. 199-201.
69 "Now Jesus, having come into the district of Caesarea Philippi, began to ask his disciples, saying, `Who do men say the Son of Man is?' But they said, `Some say, John the Baptist; and others, Elias; and others, Jeremias, or one of the prophets.' He said to them `But who do you say that I am?'" Jn. 16, 13-16.
70 Matt., 16, 15.
71 Matt. 16, 18.
72 This is the overall thrust of the first two chapters of Walter Berns's Taking the Constitution Seriously. First, there is Chapter 1: "Constituting the People of the United States;" only after constituting a people can there be Chapter 2: "Constituting the Government: the Convention." (underline mine)
73 Scalia Originalism: The Lesser Evil, op. cit., p. 863.
74 Catholic theology sees sin as the isolation of man in loneliness or the equivalent of Hobbes's "state of nature." Made in the image of likeness of a Trinity of Persons who are intrinsically relations, the temptation "You will be like God," (Gen. 3, 5), was an ontological impossibility for man as creature. Therefore, what Hobbes is describing is precisely the christian understanding of Hell and its isolation. "The human being is relational, and he possesses his life - himself - only by way of relationship. I alone am not myself, but only in and with you am I myself. To be truly a human being means to be related in love, to be of and for. But sin means the damaging or the destruction of relationality. Sin is a rejection of relationality because it wants to make the human being a god. Sin is loss of relationship, disturbance of relationship...;" J. Ratzinger, "In the Beginning..." Our Sunday Visitor Publishing Div., 1990, p. 60.
75 J. Ratzinger, A Christian Orientation in a Pluralistic Democracy,? in Church, Ecumenism and Politics, Crossroads, 1988, p. 218.
76 CNS, op. cit., p. 11.
77 The non-discernment of the person conceptually could be compared in some way with Etienne Gilson's attempt to present the thomistic esse as the primum metaphysicum whose intellectual content is not susceptible to abstractive conceptualization. He remarks: "Because it lies beyond essence, existence lies beyond abstract representation, but not beyond the scope of intellectual knowledge;" Being and Some Philosophers, PIMS, 1949, p. 202. Another obvious cause of the non discernment of the dignity of the person is the weakened state of the christian faith as lived which dims the veritatis splendor of the divine image.
78 Appositely, Noonan writes: "Teaching - the main activity of appellate judges; for what else are 95 percent of their written opinions? -... Teaching is, necessarily, person to person, informing and evoking. It cannot be equated with Pavlovian conditioning as an exercise in applied force. Addressing both Holmes's bad man (...) and also the larger audience made up of the uncertain, the confused, the conforming, and the aspiring, legislators, and judges are educative. Their success is far more by persuasion that they are right than by coercion. To think of law as a science of power, unlocked by a key, badly obscures this function" (underline mine); Persons and Masks of the Law, op. cit., pp. 12-13.
79 Cf. pp. 25-26.
80 "Persons are the active and responsible subjects of social life. Intimately linked to the foundation, which is man's dignity, are the principle of solidarity and the principle of subsidiarity. By virtue of the first, man with his brothers is obliged to contribute to the common good of society at all its levels. Hence the Church's doctrine is opposed to all the forms of social or political individualism. By virtue of the second, neither the state nor any society must ever substitute itself for the initiative and responsibility of individuals and of intermediate communities at the level on which they can function, nor must they take away the room necessary for their freedom. Hence the Church's social doctrine is opposed to all forms of collectivism;" Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, March, 22, 1986, pp. 47-48.
81 John Paul II enumerates them: "the right to life at every stage of existence; the rights of the family, as the basic social community, or `cell of society;' justice in employment relationships; the rights inherent in the life of the political community as such; the rights based on the transcendent vocation of the human being, beginning with the right of freedom to profess and practice one's own religious belief;" in On Social Concern, #33. Vatican II in Gaudium et Spes #27 enumerated them negatively: "all offenses against life itself, such as murder, genocide, abortion, euthanasia and wilful suicide; all violations of the integrity of the human person, such as mutilation, physical and mental torture, undue psychological pressures; all offenses against human dignity, such as subhuman living conditions, arbitrary imprisonment, deportation, slavery, prostitution, the selling of women and children, degrading working conditions where men are treated as mere tools for profit rather than free and responsible persons. All these and the like are criminal: they poison civilization; and they debase the perpetrators more than the victims and militate against the honor of the creator." Also in the Pope's Letter to Families #17: "The rights of the family are closely linked to the rights of the person: if in fact the family is a communion of person, its self- realization will depend in large part on the correct application of the rights of its members. Some of these rights concern the family in an immediate way, such as the right of parents to responsible procreation and the education of children. Other rights... touch the family indirectly: among these, the right to property... and the right to work..."
82 Chisolm, 111 S. Ct. at 2376 (Scalia J. dissenting).
83 This truth as absolute is the very subject himself and therefore does not dissolve freedom but, as we saw above in Berns, is its condition. That the human person - as subject (not choosing objects) - be self determining means that he is free from having any ideology or religious establishment imposed on him. Part of his truth is that he is self determining; the other is that he must seek the true pattern according to which he must make that free determination. He must not be determined - "used" - by another, not even God. As Wojtyla says: "On the part of God, indeed, it is totally out of the question since, by giving man an intelligent and free nature, he has thereby ordained that each man alone will decide for himself the ends of his activity, and not be a blind tool of someone else's ends;" Love and Responsibility, Farrar, Straus, Giroux, 1981, p. 27.
84 Scalia attempts to restrict the subjectivism of "interests" by restricting "rights" as limited concessions from the majority (read government). Thus he rails against "christian" chicken-in- every-pot socialism (see CNS, p. 11) which he thinks, wrongly, to be christian social doctrine. Since he works only with the abstraction of law as his truth, and not with the truth of person as gift, he misses the personalist doctrine of the Church which teaches only the person. Sed in contra: The way of the Church is person, not structure. But the person is a process of two dimensions: he/she becomes self by making the sincere gift of self (Gaudium et Spes #24). These dimensions are the basis of the two fundamental principles of subsidiarity (dignity of persons) and solidarity (service to others). The solution of the Church to poverty is not socialism but the ordinary professional work of persons as the concretion of the self gift. Scalia is stagnating behind the mask (see Noonan) of abstract law without reaching its source and truth which is persons. At best, he jury rigs with originalism. At worst, he errs by calling christianity socialism. Apposite to the point are the observations in the Instruction on Christian Freedom and Liberation, Sacred Congregation for the Doctrine of the Faith, 1986, #75.
85 CNS, op cit., p. 11.
86 A. E. Leff, "Unspeakable Ethics, Unnatural Law," 6 Duke Law Journal (1979), p. 1246.
87 ibid.
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posted by The Augustine Club at Columbia University
with permission of the author, October 1997
augustine@columbia.edu
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