On Becoming Safe, Legal, and Rare: The Catholic University in a Dark Age

I come to you from one of those places that is in America, but not quite of it; and by that I mean, of course, an academic enclave, a college town. In my own case, the People’s Republic of Amherst, Massachusetts. This is a town that flies the UN flag, and it refuses to accord the privilege of overflying its territory to missiles carrying nuclear warheads. I remarked to a visitor not long ago that Amherst is not far from an American consulate in Hartford, Connecticut. In the spring of 1993, a group of students, concealing their purpose, reserved a small chapel at Amherst College for a theatrical production. The production turned out to be a nude version of Camus’s play, “Caligula”; and the chapel had been chosen, of course, to make a gesture of desecration. When the plot became known, a cry of outrage arose from a collection of students — Catholic, Evangelical Protestant, and Jewish — who used that chapel at different moments. The Administration declared that it would never let such a thing happen again, but that it was too late to move the production. The President of the College did not wish to appear to be engaging in censorship or caving in to pressure from the religious. The students were also threatening to sue, and bring in the American Civil Liberties Union if they were barred from putting on their play. The President dismissed their threats to sue a private college as so much posturing. But what held him back was what he took to be the sincerity of the students staging the play. As he put it, they were offering a “serious expression of nihilism,” and they deserved in turn to be taken seriously.

As the late Allan Bloom once remarked, these people talk about nihilism as though it were a jacuzzi. But it seemed to me that we could fashion from this incident this joke about the nihilists: The good news, for them, was that they get to stage their play. The bad news is that they were confirmed in their claim to bear “rights.” Consider the paradox: With nihilism, there is the conviction that God is dead, that there is no purpose in the universe, no ends disclosed for human life, or revealed in human nature. There are no truths, and therefore no rights — no claims that are truly rightful. And yet, these people were burning with a moral indignation at the prospect that they might be, as they put it, censored. This censorship they regarded as “wrong.” To oppose that wrong they invoked their rights and threatened to bring in the ACLU. And so: there are no truths, no right and wrong, no God, no purpose, nothing — but there is the American Constitution, or the First Amendment, hanging out there somewhere in the great void. There may be no God, but there is the ACLU, and as long as there is the ACLU, there is meaning in the universe, for the ACLU seeks to vindicate something called “rights.”

But there was also a curious assumption, on the part of these aspiring nihilists, that they could invoke their rights under the First Amendment, even against the authorities in a private college. Yet, the First Amendment was part of a system of restraints on the federal government, and not on private associations, like colleges. It was not that the Constitution is indifferent to the wrongs suffered at the hands of private persons. Indeed, the government was called forth in the first place for the sake of protecting people against lawless takings of their property, or assaults on their lives and freedom, on the part of private assailants or combinations of private thugs. As Madison explained, in the Federalist 51, the first responsibility of a government was to control the governed. The second was to control itself. The first eight amendments to the Constitution were part of that project of imparting to the government the discipline of lawfulness.

The First Amendment was meant in part to protect the freedom of the press against the kinds of controls, of licensing and regulation, that were distinctly imposed by the law. The Amendment assumed a certain awareness of the grave differences that separated informal sanctions, in private groups, from the kinds of restrictions that were legislated for the whole community and imposed with the force of law. One of the most intriguing lessons on this point was offered to us by Justice George Sutherland, during the litigation over the New Deal in the 1930’s.

The question at issue was whether the federal government could intervene in private businesses and compel the owners, or management, to deal with unions as the exclusive agents for their employees. Justice Sutherland joined the dissenters in all of the labor board cases, but he was moved to write an opinion in a case involving the Associated Press [Associated Press v. National Relations Board]. There, Sutherland thought that the policy of the federal government in promoting unions was now treading on the freedom of the press contained in the First Amendment. In the course of his opinion, Sutherland offered this analogy:

Let us suppose the passage of a statute of like character with that under review, having the same objective, but to be effected by forbidding the discharge of employees on the ground not that they are but that they are not members of a labor association. Let us suppose further that a labor association is engaged in publishing an interstate-circulated journal devoted to furthering the interests of labor, and that members of its editorial staff, resigning their membership in the association, transfer their allegiance from the cause of the workingman to that of the employer. Can it be doubted that an order requiring the reinstatement of an editorial writer who had been discharged under these circumstances would abridge the freedom of the press guaranteed by the First Amendment?

I am tempted to say that Sutherland’s argument was clinching, but which case did it clinch? I am not persuaded that Sutherland found here an arrangement that distinctly threatened the freedom of the press. But I do think he touched something at the core of a necessary freedom of association in private settings. We might put the question to ourselves in this way: Would the problem be different in any morally significant respect if we reconstructed the case but removed the feature of a journal or a newspaper? What if we had here a lobbying group, organized to promote “abortion rights”? What if it turned out that key members of the staff  had suffered a jolt to their convictions and persuaded themselves finally that abortions were unjustified in most cases? And what if they were determined, nevertheless, to keep their jobs? Would the organization be so narrow-minded as to fire these competent people mainly because of their moral and political views? In the way that principles are casually bandied about these days, a firing of this kind will often bring the charge, by earnest commentators, that the case presents a problem under the First Amendment. In this woolly construction, the First Amendment is engaged whenever someone suffers a cost, or even a telling reproach, on account of views he has expressed. But of course, the First Amendment was not threatened when a producer refused to hire Vanessa Redgrave on account of her public attacks on Israel. The motive for this private aversion was indeed political, but against this adverse, private judgment the First Amendment supplied no remedy. Nor did the Amendment provide a shield that could protect people from all of the adverse effects that may flow from the public expresion of their views. The Democrats became quite artful in protecting their incumbents in Congress over 40 years, but not even the Democrats thought to argue that their candidates were protected by the First Amendment if the voters were churlish enough to punish them — to turn them out of office — merely because of the stands they had taken in public.

The life of a republic begins with the freedom of people to press their interests in public politics. In that respect, there is an evident connection between the right to engage in the public discourse, and the right to associate for political ends. A group constituted for the purpose of advocating an expansive right to an abortion would have a presumptive right to confine its association to people who shared its ends. To remove an opponent from the payroll could not be a violation of the First Amendment. And to remove a dissident from the staff of a newspaper could not be a violation of his right to publish. After all, he is not legally barred from publishing. He must merely suffer the strains of finding himself another job, and another outlet for his writing.

But with an apt symmetry, it could be said, with the same reasoning, that the right engaged on the side of his employer is not the freedom of press. That right, more generically, is the right to engage in an association for legitimate ends. That right of association need not be narrowed or confined to political ends. The example of groups directed to political ends has the advantage merely of bringing out more dramatically the nature of the right engaged in the case. That right was in fact engaged in these cases on the labor board, because it was bound up with a policy of the federal government, in overriding the claims of private association on the part of private employers, in the name of imposing unions on employers and their workers.

We would have the same problem if we imagined a person invoking a claim under. the First Amendment to protect herself from being fired from a pro-choice group on account of her political views. She might seek the protection of the federal courts, or the federal government, in the same way that unions sought to call to their side the power of the federal government, for the sake of protecting their right to associate in a union and make that union compulsory for other workers. And yet, I hope it would be clear that a move of that kind, to protect people in private associations in the freedom to express their views, would not be a vindication of the First Amendment: In fact, it would be a deep violation of the First Amendment. In the case of the pro-choice group, it would strike against that axiomatic freedom of association that is also protected under the First Amendment. It would be a move that undercuts the freedom of people to associate for legitimate ends and to preserve the integrity of the associations they form in that way. And indeed, a policy of this kind, manipulated by a cagy government, could readily be used as a device for destroying political opposition. Dissenters might be planted in rival groups and private businesses, and the government could use its levers in the name of “protecting” these people against their intolerant employers.

Again, what is offered as a defense of the principles of the First Amendment may be the most cosmetic dressing up of measures that would violate the First Amendment and the principles of a constitutional order. Now if that much is clear in relation to the pro-choice groups, and the preservation of their integrity in a regime of freedom, then we must ask with a renewed sense of wonderment: What is all the contention about — why does anyone think that the principles of a free society are threatened — when The Catholic University of America refuses to give standing to one of its professors, Charles Curran, as a teacher of Catholic theology, or when Georgetown University finally withdraws its recognition of a pro-choice group of students? If there is a right, in America, to have a Catholic Church, then there must be a right to preserve the integrity of Catholic theology. Professor Curran was not barred from teaching ethics or theology at any other place, but he was not allowed to offer his teaching under the imprint of a Catholic university as a teaching that was in accord with Catholic theology. To challenge the authority of a Catholic university to make that refined distinction one would have to do nothing less than strike at the right to preserve, in America, in a constitutional order, the freedom to teach and preserve a Catholic theology.

None of this is to deny, of course, that the government may legislate restrictions that bear on churches, as they bear, properly, on other private institutions, and that arrangement becomes justified precisely because there is a moral ground for the law. Even in this age of legal positivism, some of us adhere to the ancient understanding that there is a connection in logic between morality and law. Once we come to the recognition, say, that it is wrong for parents to torture infants, it is not consistent with the logic of that recognition to say, therefore we ought to give parents tax incentives in order to induce them to stop the torture. To recognize that the act is wrong is to establish the ground on which we may forbid that act to anyone, to everyone, which is to say, that we may forbid it with the force of law. To the matter of racial discrimination we have been able to summon that kind of conviction, rooted in the deep axioms of law and moral judgment: And so we say that it is wrong to hold people blameworthy for attributes they were powerless to affect, or to create disabilities or penalties for people for attributes, such as color, that are wholly lacking in moral significance. From a person’s color, we say, we may properly draw no inference as to whether he is bound to be a good man or a bad man, one who deserves rewards or punishments. These propositions are so bound up with the axioms, or the logic of moral judgment, that their validity is virtually indifferent to time or setting: They would be as valid for a family, for a bowling club, or the government of Serbia. They would be valid then even for a Church, and indeed no serious religion would put itself at odds with the laws of reason. If the laws of reason command us not to create disabilities for people, or reach adverse judgments about them on the basis of race, then the Church does no violence to its character when it incorporates that principle into its own operations, whether in performing services or managing schools and hospitals.

But if we can remind ourselves in this way about the moral ground of the law, we may be able to dissolve some of the superstitions that have clouded our jural vision, and introduced some vexing confusions into our jurisprudence on Church and State. Here, I am tempted to borrow a line from Henry James and say that our federal judges, in recent years, have made themselves the victims of perplexities from which a single spark of direct perception might have saved them. An earlier Supreme Court, at the end of the nineteenth century, explained that if a religious sect burned widows on funeral pyres, the civil law would not stand back merely because the homicide took place under the auspices of religion. If children are pulled out of school to proselytize, if they are denied life-saving medical care because of the beliefs of the parents, the law will intervene. The law faced the question of polygamy, and the response was not to ban the Mormons, but to ban polygamy. And once the practice was banned, it was taken for granted that a Church purged of any wrongful activity, condemned in the law, was a legitimate association, as legitimate as any other association existing under the laws.

Let us suppose then that we have a federal law that offers aid to private secondary schools like Phillips Andover Academy in Massachusetts. It seems taken for granted these days that the law may not supply the same aid to Catholic high schools. And of course we encounter this same question over the matter of a voucher plan — whether vouchers may be used only for public schools, or whether parents could make use of the money to send their children to private, religious schools. From Mr. Clinton’s administration we hear the familiar theme that the public money could not be used for religious schools without violating the separation between Church and State. And yet, if we are alert to the moral ground of the law, we would be alert to the fact that Catholic schools, as schools, are as legitimate as any other schools. If we were dealing with Fagin’s School of Pickpocketry, that school would not get a license. But if a school does not stand in conflict with the laws, we must presume that it is a legitimate institution, as legitimate as any other association or enterprise sustained under the laws.

Still, the argument is quickly tendered that public aid would implicate the government in the doctrines or teaching of the school. Yet, why is that more the case here than in the case of Phillips Andover or Exeter — or why is it more of a problem? At those schools we find a prevailing ethos of secular humanism and the culture of modern liberalism. Why would public aid not be taken as an endorsement of that ethic? Must we be assuming that there is something in the ethic of a Catholic school that is somehow unsettling, or less wholesome for a republic than the ethic prevailing at Phillips and Exeter? But the ethic prevailing at Catholic schools could be less legitimate only if there is something less legitimate about the teachings of Catholicism. We know that our political institutions are not authorized to pronounce such judgments, and we also know that if there was anything wrong incorporated in the Church, anything like polygamy or racial discrimination, those practices would be banned and purged from the Church. And so, the judges seem to be forgetting: With the moral filtering of the law, any Church that is operating under the laws must be regarded as legitimate as any other association that is not at odds with the law. In that event, any school organized around the teachings of Catholicism cannot be less legitimate in any way than a school organized on the code of secular humanism or moral relativism.

Now I should add that, in my own judgment, there is no clear obligation for the government to provide aid to private, secondary schools, or private colleges. But if the government provides any aid of this kind at all, there should be no contrived perplexities over matters of Church and State. On the necessary moral axioms of the law, there is simply no ground on which to say that schools constituted on the doctrines of Catholicism have any lesser standing in the law than other private schools. And therefore they cannot have any lesser claim to receive a support that is extended, without a trace of moral discrimination, to all other private schools.

With the familiar voice of liberal doctrine, we usually hear in response an argument that finally settles into this cast: that secular education aims at cultivating reason and rationality, and religious schools find their foundation, rather, in faith, belief, and unquestioned obedience. But here, as ever, we are given a definition of religion that simply reflects the caricatures of modern liberalism. What is screened from the understanding of religion, in this view, is the tradition of philosophy and logic that has ever been a part of theology. But what is even more curious about this argument, in our own day, is that it is offered by a political class, or by a dominant class in the American academy, that is no longer persuaded, with the Founders and Lincoln, that there are indeed moral truths accessible to our reason. In the understanding that is dominant now in the so-called “better” colleges, there are no “foundations” in reason for moral judgments. Those judgments of right and wrong do not find their ultimate ground in propositions that may be weighed by reason and judged true or false. They do not depend on any external standard of judgment outside the individual himself; they depend ultimately on matters of the most personal belief.

But then the question is only sharpened: If all of our judgments of right and wrong reduce finally to claims of belief, why would the “beliefs” of the religious stand on any lesser epistemological plane than any other kinds of beliefs? As “beliefs,” they would have no greater — but then again, no lesser — claim to be regarded as true. How, then, could they stand on any lower plane of legitimacy in the law and politics of a republic? After all, if we cannot judge the validity of any of these beliefs, on what ground could we insist that it is somehow less legitimate to draw from our religious convictions the ends we would seek in political action, or the purposes we would enact into law?

The irony of our own day is that the supposedly sectarian schools, and indeed the Church itself, have become the main centers for preserving the tradition of moral reasoning that has been bound up with the tradition of natural rights. Aquinas touched the core of this matter on natural law when he invoked the words of Paul in Romans: that when the Gentiles, who have not the law, do by nature the things of the law, they are as a law unto themselves. (Romans, ii, 14). Aquinas himself was quite clear in explaining that the divine law we would know only through revelation, but that the natural law was the law that was accessible to human beings, as human beings, through the reason that marked our essential nature as human beings.

There is still probably no clearer example of that point, as a model of principled reasoning, than that fragment Lincoln wrote for himself on the matter of slavery. Lincoln imagined himself to be in a conversation with the owner of slaves, and he put the question of why the master was justified in making slaves of black people.

You say A. is white, and B. is black. It is color, then: the lighter having the right to enslave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly? — You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

I have had the occasion to note that nothing in this chain of reasoning depended on any appeal to revelation, or to matters of religious belief. Lincoln’s argument could be understood by people of any religious persuasion. The argument works by appealing to an understanding that is accessible to human beings as human beings. Some of us have drawn on that analogy for the problem of abortion. With the same style of principled reasoning, we could simply put the question, Why do you regard the child in the womb as anything less than a human being? Is it because she cannot speak? Neither do deaf mutes. Is it because she seems to lack arms or legs? Well, other people have been born missing one or more of their limbs, or they have lost control over their limbs, and we have not thought that they have lost anything necessary to their standing as human beings. As Lincoln pursued the logic of his fragment on slavery, the general lesson seemed to be that there was nothing one could cite to disqualify the black man as a human being that could not apply to many whites as well. Some of us have employed the same reasoning about the matter of abortion, and we would point out in a similar way that there is nothing one could say to disqualify the child in the womb as a human being that would not apply to many people moving about, well outside the womb.

In other words, you don’t have to be Catholic to understand these things. And yet it seems to be widely overlooked that this lesson, too, has been part of the teaching of the Church. What seems to come as remarkable news to some people — even to some Catholics — is that the Catholic tradition has cast up the clearest tools, or offered the clearest guidance, so that people in public office need not be confused by distinctions between theology and moral reasoning: They need not fear to engage in deliberation on matters of moral consequence for fear that they will be drawn into a discourse that is theological and unfathomable. But that is precisely the line that has been retailed to us, by Catholic as well as non-Catholic politicians: A line made familiar by certain politicians in New York is that they may not impose, in public law, the theological teachings of their Church — as though the moral teaching of the Church, on matters like abortion, has been mired in layers of inscrutable beliefs.

I would suggest, as a disinterested friend, that when Catholic universities go out of their way to honor these pro-choice politicians, they help to confirm these arguments, and they become part of a project in misinstructing Catholics about the teaching of their own Church. I realize, of course, that these are straining times for the Church. And when the Church stands against the moral currents of the times, there is even more of a need for Catholic institutions to be politic. But these are not such dark times that Catholic Universities need engage in these gratuitous rituals, as though they had to prove to the public that Catholics are good citizens in a republic because they are not too insistent on respecting their own moral teachings. Right now, it is in centers of Catholic learning that we find the main support for those doctrines of natural law that form the moral foundation of the American regime. That tradition, which formed the understanding of the Founders and Lincoln, is the tradition that comes as news to most American students. Against the orthodoxies now dominant on the campuses, the tradition of natural rights represents the teaching that most students have not yet heard.

It is a wondrous work of Providence that Catholic institutions, and religious schools, should find themselves bearing the main weight in preserving this moral tradition now in America, and in effect, explaining America to itself. But in the conditions of these times, that is steady work. And it can be done without the need to offer apologies, for what the religious schools have done remains, in our day, the most urgent work to be done. On this matter, I am always drawn back to Plato’s Meno and the sense that most of these understandings are locked away within us; that it is a task mainly of putting the kinds of questions that will induce us to recognize what we already, deeply, know. If members of the public, looking on, do not grasp yet just why this work is worth doing, we can offer at least this gentle incitement: that we can hold before them the pleasures of rediscovering old reasons they will find bracing, and learning again things they used to know.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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