The Requirements of the Law

As a full-time parish priest and an armchair theologian, it gives me great pleasure to rub shoulders—from time to time—with real theologians, and to plagiarize some of their ideas. One of them observed, “The Church teaches doctrine, not theology.” The thought was provocative enough to open many intellectual doors for me as I began to appreciate the great (and sometimes heated) arguments among orthodox theologians, and to even venture out on my own in theological speculation. As long as I remain faithful to the anchor of Catholic doctrine, endeavoring to be rigorous in logic with the facts, I might have something to offer in preaching and writing.

On St. Thomas Aquinas’s feast day, in my mind’s eye I played the part of theologian in his honor. The Office of Readings for the day represented the Mosaic Law—above all, the Ten Commandments. Moses enjoined the Israelites to faithfully observe the statutes, and warned that they would be punished severely by the Lord for infidelity. But if they remained faithful to the Covenant, they would live happy and peaceful lives. Hence, Moses exhorted them to “choose life.”

Saint Thomas teaches that the Ten Commandments, obviously Divine positive law, are also completely compatible with human nature. Refining man’s primary moral obligation to “choose good and avoid evil,” the Ten Commandments represent the law of God imprinted on the heart of every person born into the world. And sinful violations of human nature bring with them self-inflicted punishments of the kind envisioned by Moses. Most of us would agree that a greedy and murderous society, for example, is at the very least unpleasant.

In preparing second graders for first Penance, I ask them how many of them knew before they were taught in religion class that disobeying mom and dad, fighting with brothers and sisters, and lying and cheating were evil. (I usually pass quickly over the Sixth Commandment but, unfortunately, it is becoming increasingly necessary to delicately remind even very young kids not to look at “impure pictures.”) In response to my question, they all agree that they knew  these things were wrong even before the religion class drills.

So why, I continue, was it necessary for God to teach us the Ten Commandments? One prescient child responded immediately and correctly:  “To remind us.” Exactly!  Even children accept without argument that God’s law is written on their hearts.

Of course, Saint Thomas and my second graders are merely explicating the teaching of Saint Paul who writes, “…the requirements of the law are written on their hearts, their consciences also bearing witness…” (Rom. 2:15). But there are some very practical applications in applying the logic of these insights to historical, and even political, facts. Between sips of coffee, here are some of my thoughts.

Anyone who follows the Supreme Court even as superficially as I do cannot help but notice the divisions in jurisprudence. The great divide is between jurists who believe the U.S. Constitution is a “living document” that changes according to the zeitgeist of the times, and those who believe the Constitution means what the words say. When there is difficulty in interpretation and application to contemporary circumstances, these jurists believe it is necessary to return to the intentions of the Founding Fathers for clarification (“original intent”).

There are dramatic differences in these approaches. For example, the “right to privacy” (and the right to purchase contraception—and later to procure an abortion) was not found in the words of the Constitution but in its “emanations from the penumbras.” Original intent justices are not impressed by the “emanations” academic jargon.  The “right to abortion” will never be found in the Constitution, unless there is an amendment. (But, note to self, even an amendment would bring with it severe legal and moral difficulties if the “principle of non-contradiction” with respect to the legal imperative to protect innocent human life is applied.)

Beyond the great divide between the “living document” and “original intent” groups of jurists, there are significant, but more nuanced, divides among the “original intent” crowd. Some who hold original intent call themselves “green eye-shade positivist” judges (the words of the Constitution and the Founding Fathers mean what the words mean, no more, no less). Others invoke “natural law” as an important part of their jurisprudence that the U.S. Constitution cannot be in violation of the law that is written in the hearts of men by God. (Forgive my over-simplification in these matters. I am an armchair theologian doing the best I can. We do not have to be certified experts to understand the moral law or the Constitution. But I’m finding we do need to be experts to accurately untangle what the experts have tangled.)

Hence, the original intent positivists would argue that the U.S. Constitution and the Founding Fathers are mute on the “right” to abortion; so it is up to the 50 (or 57, using President Obama’s count) states to decide. The natural law jurists would agree that the Constitution is silent on the question, but abortion would be prohibited because abortion is the unjust taking of human life. Why? Because the Founding Fathers would obviously agree abortion is the unjust taking of innocent life. And specifically proscribing the injustice in the Constitution wasn’t necessary, precisely because it was not foreseen that an obvious injustice like abortion could be enshrined in law.

This is where the teaching of our second graders can help. The tablets of the Ten Commandments displayed in granite in the U.S. Capitol (thereby indicting most of our lawmakers) should be proof enough that, until recent decades, our nation as a whole never objected to the moral law that undergirds our laws and the legislative branch of our government. The Founding Fathers were Godly men (Christians and at least Deists). If they didn’t explicitly profess the Ten Commandments, they certainly would never oppose them. Therefore (using the iron law of logic accessible to children preparing for first confession) we can conclude that the U.S. Constitution implicitly condemns laws that permit violations of the Fifth Commandment, the unjust taking of unborn human life.

I admit my jurisprudence might be deeply flawed according to the experts at Yale and Harvard law schools. There may be flaws in my reasoning or understanding of the facts. But in my theological reflections and good faith attempt at applying them to the concrete circumstances of our day, I haven’t violated the precepts of Catholic doctrine. And I believe I’ve faithfully presented the conclusions of the children in our school. Now it’s time for your counter arguments. Just don’t mess with Catholic doctrine.

Fr. Jerry J. Pokorsky

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Fr. Jerry J. Pokorsky is a priest of the Diocese of Arlington who has also served as a financial administrator in the Diocese of Lincoln. Trained in business and accounting, he also holds a Master of Divinity and a Master’s in moral theology. Fr. Pokorsky co-founded both CREDO and Adoremus, two organizations deeply engaged in authentic liturgical renewal.

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