Monday, October 27, 2003

A Note to Jack Cade: "First Thing We Do, is Keep Lawyers in Perspective"

A reader wrote, "Would you mind commenting on something--this whole Terri Schiavo thing has made me just sick, and what I don't understand is why the courts have so much power. They say that in spite of this bill Jeb Bush has just passed, the decision is ultimately going to rest with the courts again. It has been some time since I've read our founding documents, but I don't recall that the judicial branch is supposed to be the final authority--is it? Where does the system of checks and balances ultimately end? And why is it that a governor can at will pardon someone on death row, but he can't simply intervene in this case?

I haven't spent a lot of time blogging about Mrs. Schiavo, partly because of time constraints and partly because all the good guys (like Mark Shea, Lane Core, Dale Price, and Pete Vere, and Fr. Rob Johansen) are doing such a great job exposing one of the greatest moral scandals in American history. Your question, though, is really interesting and it gives me an opportunity to blog about a few things that have been bothering me and which might not have been blogged already.

Most of the blogging features a hostility to judges and lawyers which, I've been interested to find, is pretty common among the parishioners of St. Blog's. Lane Core (who I admire a lot) gives us a typical example in regards to Terri Schiavo. Writing about the ACLU's (entirely predictable) appearance in the case, Lane says:
Note what's really going on here: lawyers are fighting for the continued power of lawyers — that is, those lawyers among them who just happen to have been apotheosized into judges. They are hardly, therefore, disinterested parties: who among them doesn't crave the power a judgeship would bring to him?

And that's what this is about for the ACLU: not the life or death of one woman, but the continued ability of our black-robed masters to impose the Culture of Death — and anything else they desire — onto the rest of us with impunity.
Lane Core, "Lawyers are for the Lawyers." The whole text can be found here.
Lane's not alone. The Mighty Barrister (himself a barrister, who I also admire a lot), describes the behavior of Michael Schiavo's lawyers and says it's "Another Reason I Hate Lawyers." Mark Shea's animus towards the legal profession ("Vampirism . . . The devil wears judicial robes these days . . . . The big winners of the sexual revolution were abandoning males, lawyers and abortionists . . . ") is almost uncontrollable; he keeps posting "I hate lawyers" blogs and then (with commendable chagrin) rewrites (most of) them. (I also admire Mark a lot).

I suppose it's relatively easy for an orthodox Christian, who is by definition alienated from the culture, to perceive the modern regime as a dark conspiracy perpetrated by lawyers, the tyrannizing of a basically-decent and God-fearing people by an invading army of pinstriped Uruk-Hai. If children want to pray in schools, lawyers forbid it. If parents want God taught in science classes, a judge forbids it. When good people want to keep helpless innocents like Terri Schiavo or millions of unborn babies alive, lawyers sue them. The law, it often seems, is like an iron cage keeping America from its rebirth as a Christian (or at least semi-Christian) society. The perception is as much art as fact. What passes for journalism in our country thrives on games and conflict; the legal realm is a mise en scene of confrontation and intellectual one-upmanship guaranteed to produce an infinite supply of those "infotaining" moments that attract and enthrall audiences. The hostility to lawyers as a class comes, I think, from the fact that most orthodox Christians have conservative instincts and (often) conservative political inclinations; we're congenitally receptive to the anti-lawyer polemics of the Wall-Street Party ("Class Action Lawsuits Cause Plague!") and its hypocritical cant about judicial activism. Yes, Roe v. Wade is a classic case of judicial activism. But if you want to see more "judicial activism," try enacting Catholic teaching about the death penalty, or wages and employment conditions, into law -- you'll have Federalist Society lawyers and Reagan judges yanking at the starter ropes on their legal chainsaws faster than you can spell "ACLU." The Wall-Street Party has its own private reasons for vilifying and restricting an independent right to legal action, just as the Castro District Party has its own motives to praise and expand the rights-based culture of death. The aristocracies of commerce and nobility have always been at war over society's purposes and priorities; we seem to spend a good deal of our time damning the mercenaries who fight the battles while ignoring the aristocracies who arrange the wars.[1]

The selectivity of this outrage is interesting. Other groups and professions, whose members are just as hateful to Jesus Christ as any group of lawyers, are almost entirely spared from it. When public schools institute illegal crackdowns on childrens' Christianity, editorials and blogs scream about the evils of our imperial judiciary and its lawyerly minions. No one says, "that's another reason I hate public-school teachers." If scientists press for human embryo research, no one inveighs against "our white-coated masters and their Culture of Death." When television shows us Brittany Spears and Madonna locked in a sinful embrace, we bemoan the state of modern morals but spare musicians and broadcast technicians from odious comparisons to prostitutes and Pharisees. The people at St. Blog's who pen these rhapsodies of black prose about "the lawyers," would, I suspect, regard equal treatment for "the bankers," "the professors," or "the executives" as sheer Luddism -- even though corporate foundations foster and pay for the Culture of Death, endowing chairs for the intellectuals who refine its dark theology, and cutting checks to the lawyers who fight its battles. It seems that we think the evil of Michael Schiavo's case should be immediately apparent and prohibiting to his lawyers, and that their moral disregard makes them poltroons -- but the evil of working for (or investing in) Ortho, Pharmacia, Eli Lilly, or Johnson & Johnson is apparently more diffuse and harder to discern, so we decline to scathe our pharmacists or stockbrokers as "mother haters," or "death's bagmen." When all the sneering and scorn over the legal profession and Roe v. Wade dies down, we're left with the fact that lawyers and paralegals don't perform abortions. Doctors and nurses perform abortions, but we're careful to use a separate name ("abortionists") for the blameworthy ones -- a moral courtesy which is not extended to members of the legal profession.[2]

It makes me want to paraphrase that famous line of Brecht's: "Suppose they gave a Culture of Death, and nobody came?" What could the lawyers do, if a thousand children insisted on praying an Ave before class, and on meeting to read the holy bible during lunch? What would Roe v. Wade mean, if people didn't want to have abortions in the first place? A 100-page legal brief about Terri Schiavo's "right to die" couldn't defeat a single husbandly word, but it's his lawyers who get our passionate invective as though Michael's ulcerous, silent heart (and the culture that infects it) was just an incidental ornament. Again, I humbly suggest that we Catholics might be failing to appreciate how abnormal our goals really are. We don't want a society where courts keep men from murdering their disabled wives. We want a society where men don't want their disabled wives to die. We don't want a nation governed by right-thinking lawyers. We want a nation of heroes. We want the impossible. We want a billion miracles. The God we worship in the Eucharist commands us to seek those miracles, to accept nothing less than the best and highest life can offer. When we pretend, or seem to pretend, that the vital problem is the antics of a profession whose members act very much like the members of every other profession, following the expected courses of behavior and responding to the predictable incentives of professional advancement, we're doing what we think the "sleazy lawyers" do. We're settling the case, plea bargaining our way out of hardship, compromising with a world that can only recognize what's humanly possible. Maybe that's one reason we hate lawyers so dearly -- we see ourselves in them, and we don't like what we see.

Jack Valenti makes millions of dollars explaining to America's parents that Hollywood can't be blamed for giving people the entertainment they want. I've never been good at making money and don't want to start now, so I won't say that about lawyers and judges. Lawyers and judges can be blamed for giving Americans the laws they want; doctors and psychologists can be blamed for giving Americans the drugs and excuses they want; whores like Bruce Willis and Gwynneth Paltrow can be blamed for giving Americans the naked excitement they want -- we can blame, so long as we're fair and recognize that people don't pay for things they don't want. The Holy Father has rightly called it the Culture of Death. It is a culture that hates kindness, nobility, and goodness. It is a culture of men who try to live like the pleasure-seeking, pain-avoiding animals they imagine themselves to be and who only end up making themselves worse than rabid dogs. It is a culture, not a legal regime, that's casting a murderous pall over Terry Schiavo and it's our sins, not the particular evils of a few lawyers, that are putting her to death.

Cultures are bigger than the laws which represent them. I wrote this in an essay awhile ago, and I think it's worth repeating here:
Regardless of the particular choices a society makes, the fact remains that . . . laws are created and enforced to protect values held dear by society:
"It comes down to this. There are certain forms of conduct which at any given place and epoch are commonly accepted under the combined influence of reason, practice and tradition, as moral or immoral. . . . Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate."
Law can't make an individual personally and sincerely believe an act is wrong or right, and if this is what we mean by "morality" then trying to legislate morality would be a fool's errand. Modern culture, which sees morality only as a contemplative and private part of life without any significant public dimension, has done a lot to foster this very idea. But in spite of this culture we persist in punishing acts without regard to how personally and sincerely someone believes the act to be right. We do this because we hold to the ancient truth that morality is more than an idea contemplated with affection. Morals come fully alive precisely at that moment when we interact with the world around us and it is in this sense that we base our laws on morals. We do not make laws with the intention of forcing men to believe that the value proclaimed by the law is right and proper, but with the intention of obliging men to respect that value with their actions. If by doing so some men come to personally believe the value is right, then we may have done added good. But law's primary purpose is to regulate social conduct, to enable men who believe in the moral value behind the law to live their belief and to guarantee those without an equal belief benefits of something beyond their comprehension.

* * *

These characteristics of law are especially interesting in light of our collective phobia about religious influence. If the laws are to apply to everyone, the moral values upheld by the laws must be seen as universal. If the state is to act immediately when a crime is committed, the moral values protected by the law must be so indisputably consistent with society's vision of the common good that any and all claims or arguments advanced with the purpose of justifying or excusing disobedience can be immediately rejected. If the laws are to be enforced with violence or the threat of violence, the moral vision they uphold must be superior to individual consent. The Constitution of Indiana says that the criminal law "shall be founded on the principles of reformation, and not of vindictive justice." It is impossible to justify "reforming" criminals unless the laws they have broken uphold moral principles which inform their humanity better than their own individual beliefs about their actions. The explanation, the moral norm, may change over time and with debate, but result will always be a vision of the common good so powerful, intimate and universally-applicable that it overrides particular individual choices and directs action in the most important areas of individual and communal life.

The Protestant theologian Paul Tillich told us that we can identify "God" in terms of our ultimate concern, of what we take seriously without reservation. His thoughts echo Martin Luther, who wrote:
What is it to have a god? Answer: A god is that to which we look for all good and in which we find refuge in every time of need. To have a god is nothing else than to trust and believe him with our whole heart. As I have often said, the trust and faith of the heart alone make both God and an idol.
Unless we are thoroughly modern we do not look to laws for all good, nor try to find refuge in them in every time of need. But regardless of how modern we are, we must admit that our laws and statues do express ideas and values which are of ultimate concern to us, in which we trust and believe wholeheartedly. We expect men and women to die upholding the laws which proclaim these values and beliefs. We expect men and women to forego their own desires and conform to the principles contained in the laws. The values in the laws will be religious, the laws will have a religious sanction, and they will make ultimate demands on our lives and the lives or our neighbors. We cannot say that our religious beliefs are one thing, and our laws are quite another. The laws come from our religion, and we should take our religion seriously.

Modern culture spends a great deal of time and energy in denying this. Its perspective on the relationship, or lack thereof, between religion and laws comes largely from humanist thinking. Note the following discussion of the basis of criminal laws by the humanist Barbara Wootton, Baroness of Abinger:
Here as elsewhere the Humanist attitude implies on the one hand and distinctive set of values; and on the other hand a characteristic reliance upon the methods of scientific investigation. Humanism is thus, on both counts, at variance with traditional attitudes. Traditionally in the Western Christian world the whole field of social pathology has long been permeated by religious ideas -- by concepts of taboo, sin, punishment and atonement set in the supernatural framework of the Christian dogmas; whereas the Humanist's standards are earthly, in a broad sense utilitarian, and, where possible, scientific. In determining the foundations of morality and the ultimate objectives of social pathology, the Humanist is concerned with man's happiness and welfare in this life alone, and with the development of each and every individual's maximum potentiality for the good life conceived in these terms. All arguments that are derived from religious dogmas, or that rest solely upon appeals to the will of God, pass the Humanist completely by. Admittedly such phrases as ‘potentiality for the good life' are far from being precise terms . . . but for practical purposes it is clear enough what they mean. Indeed, in the present state of the world, even if we did not go beyond the purely negative definition that the Humanist is against hunger, poverty, ignorance, cruelty and bloodshed, we should have a sufficient basis for social policy. . . . So much for values.
What stands out in this passage is a patent attempt to have it both ways, to condemn religious dogmas and revelation as improper grounds for public policy while at the same time proclaiming that "distinctive values" such as being "against . . cruelty and bloodshed" transcend any individual's opinion under all circumstances and justify the enforcement of laws against cruelty and bloodshed. For present purposes it matters little whether a life sentence is founded on the dogma "thou shalt not kill" or the "distinctive" belief that men should be against cruelty and bloodshed. Whenever a commitment to a moral principle acquires sufficient power to justify violence against deviance it has necessarily acquired an ultimate, religious character. We cannot profit by the fruitless modern pretense that the question of religious sanction for law is whether the laws will serve God. The question is, was and always will be: Which god will the laws serve?[3]
Law is, ultimately, a derivation and not a cause of culture. Laws are made only when the prophet comes down from the mountain. Society will not reform itself by tinkering with its laws or throwing hissy-fits over the power of its legal establishment. The sickness killing Terri Schiavo is born in our "other" religion, not in the laws that religion calls forth. William Brennan didn't invent secular humanism and eugenics so he could sign on to Roe v. Wade, and Jeff Figer didn't invent euthenasia so he could be paid to represent Jack Kervorkian. People were buying Hustler before Larry Flynt hired his first lawyer, and the attorneys working for Mike Schiavo are just doing what their counterparts in every other profession are doing.

They're doing what Antonin Scalia did when he wrote that he needn't obey the Church if it would mean giving up something he really worships -- his position in the same culture that's killing Terri Schiavo:
I am happy to have reached that conclusion, because I like my job, and would rather not resign. And I am happy because I do not think it would be a good thing if American Catholics running for legislative office had to oppose the death penalty (most of them would not be elected); if American Catholics running for Governor had to promise commutation of all death sentences (most of them would never reach the Governor's mansion); if American Catholics were ineligible to go on the bench in all jurisdictions imposing the death penalty; or if American Catholics were subject to recusal when called for jury duty in capital cases.[4]
Like everyone else who wishes the Church would just shut up about the Culture of Death, Scalia has ably distorted the Holy Father's teaching on the death penalty into an unrecognizable straw man. Evangelium Vitae doesn't require that kind of blanket opposition to the death penalty, and Scalia is dishonest to say it does -- just as Catholics who pay Planned Parenthood dues are dishonest when they say Humanae Vitae would require impoverished fifteen-children families, and just as Catholics like John Cornwell and Andrew Sullivan are dishonest when they say Catholicism excludes Jews and gay people from membership in the human race. The mendacity of Scalia's writing is not very interesting. When you're prostituting yourself to the Culture of Death it's obviously helpful to imagine the Gospel as something that's even more disgusting. That's probably why the Pharisees liked to accuse Christ of being a whoremaster and an alcoholic. I know that's why the infotainment industry gives Rob Lowe lucrative work while delightfully tarring all Catholic priests as pedophiles. You can win a beauty contest if you're ugly, so long you make sure everyone else is even uglier -- that's an old story, and it's not very surprising or interesting to hear it again from Scalia.

The interesting thing about Scalia's parade of horribles is its comfortable and amoral mediocrity, its bovine obliviousness to the demanding glory of supernatural heroism. God forbid that Catholics like him be unable to attain high judicial office; that Catholics like Tom Daschle and Nancy Pelosi not take their seats in Congress; that Catholics like Mario Cuomo or Mary Landrieu be forced to gaze wistfully at the Governor's mansion. That world, a world of heroic and pious anonymity, is the one that's too horrible for our good conservative and Catholic Justice to bear -- the world in which Terri Schiavo is starving to death is one he can live with, because in that world he can eat the Eucharist and dine with panthers. Scalia's hand ought to palsy when he writes of St. Thomas More, as he does in that same essay -- More gave up a far greater position than Scalia's out of a loyalty Scalia withholds. If Scalia wants to quote A Man for All Seasons let him quote this: "Why, Richard, it profits a man nothing to give his soul for the whole world . . . But for Wales!" If you want to find the sleaze in America's legal profession, look no further -- Scalia's essay oozes with the grease that makes the Culture of Death work. God forbid that Catholics oppose it, because then they couldn't keep their jobs by performing abortions, writing and acting in sex scenes, producing and selling contraceptives, or routing night trains to Poland. Mark Shea says people who stumble through life in this state of trite conformity are "observing the pieties," and there's more truth in Shea's quip than in any ten books on "tort reform" and "original-intent jurisprudence" you'd care to name.

They're trying to kill Terri Schiavo because our country, our culture and its laws, owe fealty to a false god who is coldness itself, a false god of death. We worship this god in our hospitals, in our entertainments, our philosophies, our art and education, in our laws, and by our work and our professions.[5] Every sin, not just the sins of lawyers and judges, pays homage to this god because the wages of sin is death. As it did 2,000 years ago, and in every age before and since, sin stalks the earth like a lion, hungry for its victim. It's eaten ten million babies, it won't notice Mrs. Schiavo. But we notice her, because we see she is the victim our gutless way of life has staked out for the lion's jaws. The grease, the sleaze, the spirit of the world, covers everything, and when it's set against that sum a lawyer's greed and lust for position is small beer. Our salvation won't come from "better" law schools, "correct" constitutional jurisprudence, electoral victory for the "right" party, or any of the other bourgeois conceits that have whited our national sepulcher these past fifty years or more. Our salvation will come from a hundred million personal miracles that will demand the truth in schools, righteousness in law, sanity in politics. The reason why using lawyers and judges to fight lawyers and judges always seems to resemble Canute forbidding the tide to come in is because, well, the tide's coming in. We don't need Canute. We need St. Boniface to chop down the sacred tree of death, to spur our savage hearts to prodigies of love. Nothing else will do, because our God won't settle His case.

So, to return to the reader's questions: "They say that in spite of this bill Jeb Bush has just passed, the decision is ultimately going to rest with the courts again." Yes, that's true -- a nation of people who are cowardly enough to permit a great evil always need to pretend that it's being done by someone other than themselves. It has been some time since I've read our founding documents, but I don't recall that the judicial branch is supposed to be the final authority--is it? It doesn't matter. So long as men are the final authority, they will murder and rape each other no matter what branch of government they happen to occupy. "Where does the system of checks and balances ultimately end?" In Hell, unless men wake up from the American illusion that neatly constructed laws will supply,"by opposite and rival interests, the defect of better motives."[6] "And why is it that a governor can at will pardon someone on death row, but he can't simply intervene in this case?" When the victim is significant enough, even a governor's will must submit to the day's necessities, just as it did 2,000 years ago. Jeb Bush is a courageous man, and his actions so far have shown us the kind of miracles we can expect from the Sacred Heart of Jesus. But there are still too many deadened souls, too many would-be Pilates who think "reaching the Governor's mansion" is the important thing in life, for Jeb Bush to turn back the tide of death single-handedly. By all means let's castigate unwholesome laws and the blind scribes who enforce them. But let's not be deluded into thinking that judges and lawyers are leading our collective slouch toward Bethlehem. "For we wrestle not against flesh and blood, but against principalities, against powers, against the rulers of the darkness of this world, against spiritual wickedness in high places." Ephesians 6:12 (KJV). Anyone who thinks law firms and courtrooms are the kind of "high places" St. Paul had in mind isn't straining his neck enough.

These, in the day when heaven was falling,
The hour when earth's foundations fled,
Followed their mercenary calling
And took their wages and are dead.

Their shoulders held the sky suspended;
They stood, and earth's foundations stay;
What God abandoned, these defended,
And saved the sum of things for pay.
-- A.E. Houseman, Epitaph on an Army of Mercenaries

[2] It may be objected that the doctors, teachers, and truck drivers are just doing what the law tells them to do, while "the lawyers" are responsible for what the laws command. While I don't quarrel with the idea that lawyers have special responsibilities arising from the particular privileges of their profession (as do doctors, professors, and accountants), I do quarrel with the principle that necessarily operates in the comparison -- the idea that men without law degrees are allowed to be good Germans. Every man, if he is a man, has a conscience. If his position doesn't call his conscience into action with respect to the making of laws, he's still certainly obliged to use his conscience with respect to obeying the laws.

[3] Ian A.T. McLean, "Natural Law and Criminal Law," in Common Truths: New Perspectives on Natural Law (Intercollegiate Studies Institute, 2000). The book is available here.

[4] Antonin Scalia, "God's Justice and Ours," in First Things. You can find the entire article here.

[5] I say "we" because the scale of our crimes permits only a few innocents, and I am not one of them.


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