Law

Catholicism and Libertarianism

cathollic-sign

If there is one thing that the 2016 Presidential election taught me, it’s that, as a Catholic, I feel politically homeless.  As our two party system continues to become more polar, Catholics often straddle the line between the two in a gray area where neither party truly represents them.  Personally, I’ve always leaned to the conservative side of the spectrum, but I found myself losing faith in supposedly conservative political entities.  It is a sinking feeling to come to all of these realizations, because it feels like the current political structure has de facto placed a sign on its door that says “Catholics Need Not Apply.”  Something started to go missing, and I needed to take some time to reflect in order to put my finger on it.

After gathering my thoughts, and with the political turmoil engulfing the country, I realized that my views weren’t necessarily “conservative.”  Conservative, by its very nature, is a nebulous term, since any major change in law or policy technically changes who is the conservative.  As Hannah Arendt once said, and I’ve probably quoted multiple times throughout the years, “The most radical revolutionary will become a conservative the day after the revolution.”

On this most recent journey of introspection, I found that my views were actually better defined as libertarian.  After that revelation, I also found that both major political parties have essentially abandoned most notions of libertarianism, despite it being the core of this nation’s founding.  As most libertarians would agree, I realized my political leanings were not so much about left and right, but rather state and individual.  What truly surprised me, though, is how much libertarian principles can be seen in the teachings of the Catholic Church.

A.) A CATHOLIC UNDERSTANDING OF INDIVIDUAL LIBERTY

I think most, when asked, would not associate the Catholic Church with libertarianism.  Catholicism often gets associated with some form of strict legalism or moralism.  However, nothing can be further from the truth, and there is a great deal of detailed thought under the misunderstood surface.  Catholicism actually has a great deal to say about the concept of freedom, and this is born from the very root of its understanding of the human person.

The United States of America, from the moment of the Declaration of Independence, prefaced everything on defining the core concept of freedom and rights being innate in human beings.  Everything flows from first laying down that foundation, which was so elegantly laid out centuries ago:

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, that among these are Life, Liberty, and the Pursuit of Happiness.

The truth, which is self-evident by virtue of our very nature, is that we are endowed with certain rights.  While the “CREATOR” part can be left out for other debates, it is still important in understanding that rights are innate in our being and, therefore, NOT defined or granted by others.  If they were, then they would not be unalienable and would be rendered meaningless through relativism, since they could be changed or redefined on a whim based upon the views of whoever held power at the time.  Human beings intrinsically have, therefore, a right to freedom in their lives, most notably to pursue the ever elusive idea of happiness.

This freedom provided to us by our unalienable rights is actually at the very heart of the Catholic understanding of the human person through how Catholicism views man’s creation.  The Catechism of the Catholic Church states:

1730 God created man a rational being, conferring on him the dignity of a person who can initiate and control his own actions. “God willed that man should be ‘left in the hand of his own counsel,’ so that he might of his own accord seek his Creator and freely attain his full and blessed perfection by cleaving to him.”

“Man is rational and therefore like God; he is created with free will and is master over his acts.” –St. Irenaeus

This is rooted in Biblical teaching in Sirach 15:14, which reads:

When God, in the beginning, created man, he made him subject to his own free choice.

Again, leaving aside any debate about the existence of God, the Catholic Church clearly teaches man is free and has control over his own actions.  After establishing that mankind has freedom, the Catechism elaborates on it further by defining it:

1731 Freedom is the power, rooted in reason and will, to act or not to act, to do this or that, and so to perform deliberate actions on one’s own responsibility. By free will one shapes one’s own life. Human freedom is a force for growth and maturity in truth and goodness; it attains its perfection when directed toward God, our beatitude.

This was intended and desired, with man having the ability to freely choose his path in life.  There is, of course, the hope that we will seek the good with that freedom, in which the Catholic Church believes freedom can find its perfection, but if we were forced in that direction we could not then argue that we are free by nature.  Being free, then, leaves open the possibility of making right and wrong choices:

1732 As long as freedom has not bound itself definitively to its ultimate good which is God, there is the possibility of choosing between good and evil, and thus of growing in perfection or of failing and sinning. This freedom characterizes properly human acts. It is the basis of praise or blame, merit or reproach.

Although expressed by the notions of good/evil and perfection/sin, this is no different than pointing out that, even though we are free to act, we are not free from the consequences of our actions.  Freedom is a necessity, but the ability to act or not within our will can (and is) abused when used in a way contrary to what is good.

So, there is a great deal in common between what has been expressed in the Catechism about the nature of freedom and libertarianism: man is, by its very nature, a free entity, and man has the natural right to freely act according to his will.  In other words, man has personal autonomy.  It is true that Catholicism takes that and applies it to what we should do with our freedom, but it never abandons the fact that true freedom of action to shape one’s own life, as opposed to force, is the key to our very being.

B.) A CATHOLIC UNDERSTANDING OF RIGHTS AND LAW

The above notions of personal autonomy establish a fundamental understanding of the human person in terms of our innate rights to life and freedom, but the world contains more than just one of us.  We work together, have relationships, and, unfortunately, we sometimes butt heads.  Inevitably, then, the conversation will turn to what role our human institutions and governments have in relation to the freedom of the individual.  Libertarian ideals seek to maximize the amount of personal autonomy and limit government power over the individual, so chief among government’s roles is the protection of our freedoms.  Again, the Catholic Church agrees:

1738 Freedom is exercised in relationships between human beings. Every human person, created in the image of God, has the natural right to be recognized as a free and responsible being. All owe to each other this duty of respect.  The right to the exercise of freedom, especially in moral and religious matters, is an inalienable requirement of the dignity of the human person. This right must be recognized and protected by civil authority within the limits of the common good and public order.

Even with acknowledging the right to exercise our freedom and the necessity of recognizing it and protecting it, Catholicism largely doesn’t give a blueprint on how government should do so.  Different Popes at different times have railed against the wrongs they see in different systems, whether it was St. Pope John Paul II speaking about socialism or Pope Francis warning of the materialism that can come with an idolization of money.  The criticisms are for different reasons, whether it be a lack of protecting the right to exercise our freedom or the abuse of the freedom we do have protected.  Still, some of the greatest Catholic thinkers have pondered the limits of human laws, and there are, again, libertarian overtones when these issues arise.  St. Thomas Aquinas, in his Summa Theologiae, had the following to say about law and morality:

Now human law is framed for a number of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like…

The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils: thus it is written (Proverbs 30:33): “He that violently bloweth his nose, bringeth out blood”; and (Matthew 9:17) that if “new wine,” i.e. precepts of a perfect life, “is put into old bottles,” i.e. into imperfect men, “the bottles break, and the wine runneth out,” i.e. the precepts are despised, and those men, from contempt, break into evils worse still.

The natural law is a participation in us of the eternal law: while human law falls short of the eternal law. Now Augustine says (De Lib. Arb. i, 5): “The law which is framed for the government of states, allows and leaves unpunished many things that are punished by Divine providence. Nor, if this law does not attempt to do everything, is this a reason why it should be blamed for what it does.” Wherefore, too, human law does not prohibit everything that is forbidden by the natural law.

Limiting the scope of law, particularly when it applies to “victimless crimes,” is an ideal that many libertarians share.  Aquinas pointed out, succinctly, that human law is not designed to make man perfect and that it is also not necessary to legislate all of morality.  In fact, in man’s flawed existence, you couldn’t possibly legislate man into a state of virtue.  So, the real focus of the law should be for the most serious offenses, and should also be further focused on those offenses that harm others.  This is reminiscent of Thomas Jefferson’s definition of rights and liberty:

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual.

In essence, if each person is represented by a circle, we form a massive Venn diagram where the equal rights of others intersect.  In those intersecting areas is where you will find the most proper use of law to protect the public from, as Aquinas put it, the most grievous of vices or to adjudicate disputes.

C.) SUBSIDIARITY: A CATHOLIC UNDERSTANDING OF GOVERNMENT’S ROLE

Elaborating on the freedom of the individual and the importance of government to protect that freedom within a limited human law, it should be apparent that the Catholic Church views personal autonomy to be not only important, but integral to the very dignity of the human person.  Therefore, logically, any infringement upon man’s freedom robs him of his dignity, but there are many ways freedom can be attacked.  We often think of clear examples, such as slavery, but there are far more insidious ways freedom can be indirectly extinguished.  One such way is by usurping man’s activities and responsibilities.

Although not called by the name subsidiarity, Pope Leo XIII prepared the foundational principles of the concept in his 1891 encyclical Rerum novarum.  Rerum is a direct commentary on socialism and its inevitable effects on man, where Leo XIII defends private property ownership and the importance of man’s labor.  Through that defense, he wrote the following:

The contention, then, that the civil government should at its option intrude into and exercise intimate control over the family and the household is a great and pernicious error. True, if a family finds itself in exceeding distress, utterly deprived of the counsel of friends, and without any prospect of extricating itself, it is right that extreme necessity be met by public aid, since each family is a part of the commonwealth. In like manner, if within the precincts of the household there occur grave disturbance of mutual rights, public authority should intervene to force each party to yield to the other its proper due; for this is not to deprive citizens of their rights, but justly and properly to safeguard and strengthen them. But the rulers of the commonwealth must go no further; here, nature bids them stop.

Forty years later, as the name literally states, the condemnation of a usurpation of man’s actions was expanded further by Pope Pius XI’s 1931 encyclical, Quadragesimo anno:

Just as it is gravely wrong to take from individuals what they can accomplish by their own initiative and industry and give it to the community, so also it is an injustice and at the same time a grave evil and disturbance of right order to assign to a greater and higher association what lesser and subordinate organizations can do. For every social activity ought of its very nature to furnish help to the members of the body social, and never destroy and absorb them.

The supreme authority of the State ought, therefore, to let subordinate groups handle matters and concerns of lesser importance, which would otherwise dissipate its efforts greatly. Thereby the State will more freely, powerfully, and effectively do all those things that belong to it alone because it alone can do them: directing, watching, urging, restraining, as occasion requires and necessity demands. Therefore, those in power should be sure that the more perfectly a graduated order is kept among the various associations, in observance of the principle of “subsidiary function,” the stronger social authority and effectiveness will be the happier and more prosperous the condition of the State.

All of Quadragesimo is a very detailed piece about man and government, written at a time that saw the rise of Nazism and Communism on one hand and the entrenching and expansion of capitalism on the other.  In it, Pope Pius XI also warns against the reduction of all things into the two spheres of the individual and the state, making the case for multiple social units between them.  This includes everything from the family to local governments, non-profit organizations, and corporations.  This hierarchy of social order, between individuals and the State through various social structures that promotes “Industries and Professions” for man to exercise his freedom with others, strikes a balance between statism and complete individualism.  In more clear terms, subsidiarity as a concept presents a strong case for limited government.

Between the two documents, a picture of limited government is painted that places as much focus as possible on the smallest units of social life.  Government’s limited role, then, is only to support smaller units in those functions that they cannot handle on their own.  To take away a smaller social unit’s function is to rob the individuals of their usefulness and dignity.

The commitment to the concept of subsidiarity didn’t end there, as St. Pope John Paul II wrote Centesimus annus on the 100th anniversary of Rerum.  The position remained the same, notably:

In recent years the range of such intervention has vastly expanded, to the point of creating a new type of State, the so-called “Welfare State”. This has happened in some countries in order to respond better to many needs and demands, by remedying forms of poverty and deprivation unworthy of the human person. However, excesses and abuses, especially in recent years, have provoked very harsh criticisms of the Welfare State, dubbed the “Social Assistance State”. Malfunctions and defects in the Social Assistance State are the result of an inadequate understanding of the tasks proper to the State. Here again the principle of subsidiarity must be respected: a community of a higher order should not interfere in the internal life of a community of a lower order, depriving the latter of its functions, but rather should support it in case of need and help to coordinate its activity with the activities of the rest of society, always with a view to the common good.

The principle of subsidiarity has had a large effect on institutions outside of the Church as well.  The European Union uses subsidiarity as a core concept in its functionality as a governing body.  Also, the United Nations has even noted its usefulness, stating in its Development Programme’s 1999 report:

Decentralization, or decentralising governance, refers to the restructuring or reorganisation of authority so that there is a system of co-responsibility between institutions of governance at the central, regional and local levels according to the principle of subsidiarity, thus increasing the overall quality and effectiveness of the system of governance, while increasing the authority and capacities of sub-national levels.

Many libertarians hold that self-governance is an important principle, and subsidiarity is largely a parallel concept that guides how limited a government should be with its responsibilities.  It by no means ends with Papal encyclicals, either.  Many great Catholic writers and thinkers, from G.K. Chesterton to Dorothy Day, have added their thoughts on the matter.  Unfortunately, even amongst modern Catholics, the idea of subsidiarity is not discussed much, but hopefully that will change as we continue to live under an ever-expanding bureaucracy.

D.) CATHOLIC LIBERTARIANISM

It is, of course, difficult to reduce 2,000 years of thought into a single essay on the subject of man’s nature and social interactions.  However, what should emerge, from examining specifics, is that the Catholic Church does share many core values and teachings with the principles of libertarianism.  Both see the individual as a free entity, both see the government’s chief responsibility as the protection of those individual freedoms, and both desire that the protection of that freedom arises from a limited government that leaves man able to best express and utilize his freedom.

Libertarianism is a large umbrella with a diverse people underneath it, and although there may be disagreement on moral principles in the end, Catholicism undeniably agrees on the value of freedom to pursue the truth through man’s own rational thought as a means.  Many issues today are best left to that realm, through discussions between human beings in a more broadly social context rather than by the force of law.  Evangelization, at the end of the day, is based on that principle.  No one is mandated to be a Catholic, but Catholics believe we are to help others seek truth.  Whether it is a religious issue or a broader social discussion, reaching out to people on a personal level about what you believe and finding the truth toegether can only be truly preserved in a society where men are free to search themselves in order to decide on their own.  Catholics and other libertarians may disagree on where ultimate truth resides, but both support the mechanisms of freedom that allow us to have that conversation.

As a Catholic, I have come to the conclusion that I need to follow my conscious on the principles of the condition of the human person, on the law, and on the concept of subsidiarity in the greater context of Catholic social teaching.  I’m not sure that the current two party system presents an option for those ideals, nor could a binary system ever accomplish that.  In the end it is, of course, up to the individual, but I think the time is right for Catholics and non-Catholics alike to stop being politically homeless and search for another option that fits them more closely.  Considering what Catholicism has taught, and seeing how it is written on the very heart of the United States in its founding principles, perhaps libertarianism can provide the roof Catholics have been missing for so long within our political system.  I think the time is right for many groups of people, including Catholics, to start building their own custom homes rather than accepting the two cookie-cutter models.

Thomas Aquinas and Zombies

***MORE THE WALKING DEAD SPOILERS***

Amazingly enough, The Walking Dead keeps spitting out those morals dilemmas faster than I can keep up with them.  For the second post in a row, I find myself pondering what the show is laying down.  And boy, is it laying it down hard.

In my last writing, I attempted to delve into The Walking Dead’s treatment of society by touching on both family and life as the building blocks of civilization.  So, now that we have civilization (or some proto-form of it), where do we go from there?  Of course it would be easy for everyone to kick back, start farming, and try to learn Latin, but you’d be a fool to think our favorite survivors would have an easy road.  Or you read the comics.  Either way, to quote our favorite mullet-coiffed character, we are now in “Phase 2” of society mode: how to deal with other societies.

eugene

Sweet hair not necessary, but helpful.

A.) WAR AND PEACE

After Rick’s realization that he wants to truly build again through family, he and Daryl have an unexpected meeting with a “clean” gentleman on the road.  Through a bit of trickery, and quite a bit of slipperiness, the man who goes by the name of Jesus ends of getting away with the team’s large haul.  Not for long, though, as they chase him down, lose their supplies that they were trying to recover in the process, and (begrudgingly on Daryl’s part in a sort of role reversal) haul Jesus back to Alexandria.  Jesus, being part Houdini, breaks free and has some stunning news for our mostly clothed group, explaining that there are other groups of survivors out there.  The world got bigger instantaneously as Jesus explained that he is from the Hilltop community.

Now, not only is the world bigger, but it just got a whole lot more complicated.  Besides a misunderstanding and a long chase scene, Jesus committed no acts of violence, even though he could have on numerous occasions.  For the first time, Rick’s group can start a meeting with other human beings from a perspective of diplomacy instead of bullets.  Diplomacy offers some healthier options than blood, namely trade and possible mutual assistance.  For the first time in the show, a meeting can occur in relative peace.

That is, until blackmailed Hilltop members come back to kill Hilltop’s leader for another group of survivors with some issues.  Like the mob, the Saviors said they’d protect Hilltop if they gave them pretty much all of their stuff.  Hilltop of course agreed, albeit under a bit of duress and through the Saviors’ style of diplomacy via dead bodies.  Daryl, Abraham, and Sasha had their own meeting with a band of Saviors prior to meeting Hilltop, and it went poorly until a well-placed RPG hit some motorcycles.

So, Rick and the gang, who desperately need supplies, strike a deal.  Food for blood.  Peace and trade for war and death.  And make no bones about it, that’s what it is.  The survivors have had plenty of conflicts, but it’s different this time, because a conflict between two societies is war.

B.) JUS BELLUM IUSTUM

Rick holds a town meeting to finalize their trade arrangement.  Besides Morgan’s predictable disapproval, the Alexandrians are clearly in favor of defending themselves preemptively.  The plan is quick, decisive, and brutal.  Rick and the survivors find the Saviors’ compound and, in the middle of the night while most of them slept, pretty much slaughtered all of them like cattle.  It was gut-wrenching to watch as some of the characters take their first human life in such a cold manner, driving knives through the skulls of their unconscious enemies.

The big questions that I’m sure went through every viewer’s mind that night were simple.  Were they right?  Were they justified?  Again, whether they know it or not, the writers of The Walking Dead have now broached another philosophical concept in Just War Theory.

Like most philosophical topics, there are smart people throughout history that thought about this stuff long before we did.  Thomas Aquinas was just such a man, and he covered this very topic in his Summa Theologica.  In his writing, Aquinas stated that there are three things necessary for a war to be just, so let’s see how Alexandria stacks up.

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Writing took an extra step back then.

C.) THE THREE REQUIREMENTS FOR JUST WAR

First, the authority of the sovereign by whose command the war is to be waged.

The first requirement for a just war derives from a sovereign authority.  Aquinas points this out because war must always be carried out for the common good of the people, so naturally those with authority over the common good need to be making the decision.  An individual cannot summon an army of the people to take care of his grievances, after all.

Does such a sovereign authority exist within our group of survivors?  Arguably, it does.  As funny as the “Ricktatorship” slogan is, there is a modicum of truth to it.  Prior to her death, Deanna was clearly running the show in Alexandria, and after bringing in Rick’s group, she also very clearly began the process of handing the reins over.  Even if he wasn’t clearly the leader, Rick called together all of Alexandria to essentially vote on whether or not war was the answer.  If Rick isn’t a sovereign authority over Alexandria, the entirety of Alexandria had a say in the matter.

So, this requirement seems to be met, although few likely had a problem with the actual decision to fight.

Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault.

Aquinas explains this point by simply quoting Augustine, who also opined on the subject.  “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.”

Whereas the survivors had little interaction with the people that led the Saviors, it’s hard to say that their first encounter with them was anything but belligerent.  The motorcycle gang of Saviors clearly wanted to take everything the survivors had at the moment, and it looked as if they were seconds away from killing one of them.  Most would say that the aforementioned RPG was fired in self-defense.

Furthermore, Rick witnessed firsthand that the Survivors’ diplomacy tactics were questionable.  Well, I think most would agree that blackmailing someone to murder someone else is questionable.

It seems as if there are plenty of wrongs to be avenged, and the Hilltop’s supplies were unjustly seized for the Saviors’ “protection.”  However, at the time, there was little actual contact with the group by anyone from Alexandria.  Can we be sure that they refused to make amends?  Has it ever been discussed?  Are we sure that these aren’t rogue groups?  Although there was no contact, it seemed on each occasion that the Saviors were doing it on behalf of their leader, Negan.  It’s safe to say that these weren’t isolated incidents, and that the continued use of such tactics is a refusal to make amends for wrongs committed.

I would say this requirement is met as well.

Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil.

Augustine is again quoted by Aquinas to further describe what is meant, further discussing right intention.  “The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war.”

Being viewers of a TV show, we often have clear views into the motivations of some characters.  Rick, in particular, seemingly turned a new leaf in wanting a new world for his son and newfound family.  It would be hard to imagine that he would immediately destroy that with a dangerous war.  He is not out for power, for vengeance (at that point there was nothing really to even avenge), or some kind of masochistic desire to cause others harm.  The war comes into focus through desiring peace with Alexandria’s neighbors and, to probably a greater extent, pure survival.  Although not entirely altruistic, there is a desire to see Hilltop at peace just as much as Alexandria, and the Saviors seem to be a threat to that peace.

So, it would appear that the criteria are met for Alexandria’s war with the Saviors.  However, that’s only half of the analysis, and it is what followed that caused the most pause.

D.) JUS IN BELLO

The above section was mainly in regards to jus ad bellum, or right to war.  However, even if there is a just cause, what about the conduct during a just war?  This is a separate philosophy know as jus in bello, or law in war.

First, it is clear that Rick and his group are, in essence, ambushing the enemy.  Aquinas states that the purpose of an ambush is to deceive the enemy, but he makes a distinction between two types of deception: lying and not declaring purpose.  To Aquinas, lying is always wrong, whether it be saying something false or breaking a promise.  However, not declaring your purpose is not the same:

[A] man may be deceived by what we say or do, because we do not declare our purpose or meaning to him. Now we are not always bound to do this… Wherefore much more ought the plan of campaign to be hidden from the enemy. For this reason among other things that a soldier has to learn is the art of concealing his purpose lest it come to the enemy’s knowledge, as stated in the Book on Strategy by Frontinus. Such like concealment is what is meant by an ambush which may be lawfully employed in a just war.

Nor can these ambushes be properly called deceptions, nor are they contrary to justice or to a well-ordered will. For a man would have an inordinate will if he were unwilling that others should hide anything from him.

In war, much of the conduct, whether it be troop movements or battle strategy, has to be concealed from the enemy.  What is the alternative?  If, during war, the enemy knew all of your plans, surely it would come at the loss of both troops and, most likely, the war itself.  Likewise, an enemy shouldn’t expect their opponents to divulge that information.  So, ambushes aren’t necessarily unjust as a tactic.

Aquinas, unfortunately, doesn’t go much beyond that for conduct during war, and that is also where it becomes the most grey for our survivors.  First, it goes without saying, that the Saviors were never even aware of Alexandria’s existence, let alone that they were in a war.  However, with the way they conducted themselves, it would be difficult to say that they shouldn’t have expected retaliation at some point.

The real difficulty, though, lies in more modern principles of jus in bello as it pertains to civilians.  Military action needs to be 1.) directed towards enemy combatants, 2.) conducted so as to not excessively harm civilians, and 3.) a legitimate military objective.  In the world of The Walking Dead, it is virtually impossible to say who is a civilian and who is an enemy combatant, and unfortunately you don’t necessarily have time to sit and ask.  Rick’s group had a clear military objective in reaching the armory first, but how would you classify a man sleeping in his bunk?  Are you sure they are fighters?  Would they have surrendered if given the opportunity?

E.) BLURRED LINES

Back in Alexandria, Morgan began the construction of a prison cell while the assault was underway to give Rick “options.”  And, perhaps, that is a meaningful addition to Alexandria’s society.  In the ancient world, corporal punishment and executions were often used not as deterrents, but rather because there was no other meaningful way to protect society from those who sought to harm it.

In a world where every person is a potential threat, and there is no distinction between civilian and soldier (much like ongoing issues surrounding terrorism), it can leave one wondering what is right and wrong in conflict.  Still, Morgan may be right.  It isn’t enough for society to be born, it needs to be maintained as well.  Without options, without the ability to show mercy and to always punish, society may not be able to move past its first steps.  That’s why the assault on the Saviors’ compound was so difficult, because for once Rick and the group could decide.  They weren’t forced to kill and they weren’t acting on instinct.  Rather, they were making a conscious, societal decision on how to conduct themselves along blurred lines.

Alexandria might have been right in their decision to go to war, but their conduct during war was inching towards the gray.  It can be argued that their action was justified, and maybe it was, but the trouble with acting in the gray is that it can inch towards black or white.  It can always potentially lead down the wrong path as easily as it can move towards the right one.  Either way, most fans want Rick and his group to do the right thing, and that’s why it hurts to see them venture into the morally ambiguous.  They may be good by comparison to a group like the Saviors, but there is no guarantee that there will always be good guys in the end.

Separation of Church and State?

This article on MSNBC came across my radar recently.  It’s called “This Week in God, 10.4.14” which, without spending too much time, suggests that it is a weekly thing.  Reading it over didn’t make me really want to dig too deep to see if that’s true, in part because I don’t think I will ever understand how anti-theism could bring anyone joy other than the satisfaction of tearing someone else down.  And it also spouted some of the same claptrap that proves, time and again, that if you say something mangled enough times people will think it’s true.

I will say, though, kudos to Antonin Scalia for always sending the other half of the political spectrum into a tizzy.  It always cracks me up to see it happen, as they also turn a blind eye to Justice Ginsberg for virtually the same thing that they accuse Scalia of doing: politicizing the bench.  The difference is that they agree with Ginsberg.  However, that’s neither here nor there, because the real crux of the article is that religion is out to get you and Scalia is hell-bent on tearing down that grand old Constitutional wall of separation between church and state.

The face of evil for people that...don't believe in evil.

The face of evil for people that…don’t believe in evil.

A.) THE INVISIBLE WALL

For those with a short memory, not that long ago a Senate candidate was the subject of much derision for questioning where the “separation of church and state” is in the Constitution.  Christine O’Donnell was roundly ridiculed (and actually laughed at) when she questioned “Where in the Constitution is separation of church and state?” during a debate.  That is how ingrained the notion is today, to the point where a person is considered a fool for “not knowing” that the First Amendment is, in part, about separating church and state.

The trouble is, the phrase “wall of separation between church and state” is actually nowhere in the Constitution, so the question is legitimate.  The first article quotes the Constitution as being a “secular document, which separates religion and government”, so it should be pretty evident from reading the Constitution that there is a big wall somewhere.  The only two places religion is mentioned in the Constitution are Article VI, Section 3, which states:

“The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.”

And the First Amendment to the Constitution, which states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

One will notice that, quite literally, the phrase “wall of separation between church and state” appears nowhere in the Constitution.  So where did it come from?

B.) WALLS TAKE TIME

To understand where the phrase came from and how it entered our legal lexicon, it requires a bit of history and a timeline:

1776 – The United States gains its independence.

1788 – The Constitution is ratified.

1791 – Bill of Rights enacted, which included the First Amendment.

1802 – Thomas Jefferson reflects on the First Amendment in a letter to the Danbury Church, first using the phrase “wall of separation between church and state.”

1868 – The Fourteenth Amendment is passed, incorporating the Bill of Rights (including the First Amendment) into State law.  Previously, all portions of the Constitution only applied to the Federal Government.

1878 – Reynolds vs. U.S., which is the first case of First Amendment jurisprudence that uses Jefferson’s “wall of separation between church and state.”

1947 – Everson vs. Board of Education, which is the first case to apply the Establishment Clause of the First Amendment to a State law under the Fourteenth Amendment’s due process clause.

So, there is nearly a 100 year gap between the writing of the Constitution and the first incorporation of the notion of “wall of separation between church and state” in the legal history of the United States, and that entry was via judicial opinion and not some founding document or amendment.  An interpretation is not the same thing as the statement being interpreted.

Still, none of that means it’s necessarily wrong.  Thomas Jefferson was one of our founding fathers, and his opinion on the First Amendment should hold sway, particularly for a self-proclaimed originalist like Scalia.  So what’s the deal?

C.) ESTABLISHMENT OF RELIGION

First, you have to look at the First Amendment itself, which prohibits laws respecting the establishment of religion.  What one needs to understand is that, at the time of the writing of the Constitution, there were in fact “official” churches in the various colonies.  Many of them retained the Church of England as established churches, whereas others (like Connecticut and Massachusetts) had established Congregational denominations.  Some of them were not disestablished until well into the 1800’s (on its own or because the First Amendment did not apply to the States until the Fourteenth Amendment’s passage).  There were, of course, people who opposed disestablishment.  They were called antidisestablishmentarianists, and I’m only pointing that out because come on, how often do you get to say antidisestablishmentarianists?

You'd do the same thing if you were me.

You’d do the same thing if you were me.

Furthermore, James Madison’s initial proposed language was to prohibit the establishment of a “national religion.”  This was opposed by the Anti-Federalists, who strongly disagreed with the creation of a stronger, central federal government under the notion that hey, didn’t we just fight a war to get away from a strong national government?  The word “national” was quite contentious for those who want a federal state where the individual member states retained a great deal of sovereignty, but it showed a key point.  The Establishment Clause was really about not having an official state-sponsored church or religion.

D.) WHAT IS A WALL, ANYWAY?

So, coming from a position that the First Amendment was trying to avoid the Church of the United States, we come to Thomas Jefferson’s phrase in the letter to the Danbury Church.  But before we dive into that, let’s think about something that seems readily apparent and is often glossed over: what exactly is a wall?

A wall, by definition in this context, is a brick or stone structure that separates one area from another.  So, wall of separation is kind of redundant.  But that’s beside the point.  The point is, one person builds a wall to keep crap from one side from getting into the other.  The Great Wall of China is a great example.  The Chinese built it to keep people like the Mongols the heck away from them.  So, the “wall of separation” begs the question: WHO built it, and WHO were they attempting to keep out?  I doubt you’ll find many cases where two parties set aside their mutual hatred to build a wall together, shake hands when they finished, and then flicked each other off as they went back to their own side.  Or times when someone built a wall to protect someone else from the dangers of the people building the wall.

Thank goodness.  Those people on the other side are now safe from our plundering and pillaging.

Thank goodness. Those people on the other side are now safe from our plundering and pillaging.

We already know the parties in this one: church (religion) and state.  So, did people build the wall to protect state from the church, or did people build the wall to protect the church from the state?  Oddly enough, Jefferson answers this question in his letter to the Danbury Church, a minority Protestant denomination afraid that their rights to religious freedom were in danger:

“Believing with you that religion is a matter which lies solely between man and his god, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their “legislature” should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

Jefferson, in keeping with his general opinions that government = eventual tyranny, wanted to protect religion, a right of conscience and a natural right, from the powers of government in his above reassuring statement.  The wall is there to protect the right of conscience, that natural right to religion that is between a man and his god.  In fact, that was the whole purpose of the Bill of Rights, which Jefferson supported:

“A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”

The founding fathers had a unique opportunity in front of them: after fighting the tyranny of government, and needing to build a new one out of necessity, they stood as free men with the ability to build a cage for the monster before the monster was even born.  A monster that they knew would inevitably rear its ugly head, even if it were a necessary evil.  So, the Bill of Rights, and the Constitution as a whole, is meant to protect the rights of the people from government.  The whole thing is a cage built of walls of separation between the rights of man and the state, built by free men as a necessary protection of their liberty.

E.) SHIFT IN POLARITY

Somewhere along the line, though, the whole wall got turned on its head.  Somehow, we now think as if the Great Wall of China was built by the Chinese to protect the ways of the nomadic tribes to the north.  In Reynolds vs. U.S., the wall of separation phrase was first used in a judicial decision, and it focused on a different portion of Jefferson’s statement: namely that the powers of government reach actions and not opinions.  So, it was ruled that an anti-bigamy law could stand against a Mormon claim that it violated the free exercise of his religion.  There is certainly truth to that argument that government could restrict action, but the question arose as to whether the action by the United States trampled the free exercise of the religion of Reynolds.  So, it was centered on whether or not the state breached the wall protecting the right to free exercise, again showing the distinction about who the wall is there to ultimately protect.

The focus on action is certainly a legitimate one.  The argument was made by the court that allowing any action under the auspices of religion could eventually lead to someone making the argument that human sacrifice was a-ok because it was a religious practice.  The distinction here, though, is that the action being discussed is between citizens.  The rights an individual has as it pertains to other human beings is not the same as the rights a person has in relation to the government.  So, the first citing of the wall had little to do with the notion of keeping religion out of government, but rather if government overstepped its bounds.

Everson vs. Board of Education (again, a case from 1947) was really the decision that truly defined the modern view of the wall and that it applied to both the Federal Government and the States.  The language and tone in the majority opinion, which ruled that reimbursement for transportation to private schools was allowable even though a large percentage of those private schools were parochial, stands in pretty stark contrast to the language cited thus far:

“The ‘establishment of religion’ clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.”

The first sentence is the exact meaning of the Establishment Clause: no state church.  However, it then starts down the trail of aiding any or all religions, forcing people to go to or stay away from church, profess a belief, etc.  This was really the turning point, because it shifted the focus of any and all state action to the Establishment Clause, i.e. any action is de facto establishing a state church.  Which seems silly in the context of transportation reimbursement somehow converting the State of New Jersey into a Catholic state deferring to the Vatican.

So is it ok for the government to force someone to go to church?  Of course it isn’t, but I truly think the court came to the right decision for the wrong reason, and we’ve been spiraling ever since.  Every single one of the things cited by Justice Black in the above statement, after the first sentence, deal with the violation of the right to free exercise of religion by an individual, NOT the establishment of a state church.  Can the state pass a law which aids one religion?  Probably not, because it probably violates the free exercise rights of others who aren’t getting that aid, not because it makes an official state church.    Can the government force someone to go to church?  No, because that violates their free exercise rights under the First Amendment, not because it establishes a state church.

It may seem like a distinction without a difference, but it truly isn’t.  On the one hand, from a free exercise perspective, the focus is on individual rights and protecting them.  On the other hand, you are declaring that the wall of separation was built to protect the state from religion.  It changed from protecting religious freedom, to a declaration of complete neutrality and, quite frankly, antipathy towards religion.  Combining everything under the Establishment Clause has led to the current conundrum, because it has now bled even further from simply prohibiting passing laws to virtually any action by any member in public office.  We can no longer balance free exercise of religion with keeping it away from the public sphere because they now clash.  They wouldn’t clash, however, if the view of the wall didn’t shift.

F.) WHERE WE STAND NOW

The notion of this wall keeping religion out of the state, instead of keeping the state out of the conscience of free men, is beginning to even further decay to the point where we are now seeing the exact opposite of the original intent.  Our current President has referred to religious freedom again and again as the “freedom of worship.”  This may seem like no big deal, but in actuality it is the next step in thinking after the polarity switch (whether knowingly or not).  The insinuation is that you are free to worship, and you worship at your place of worship.  It is an entirely private matter behind closed doors and away from the public sphere.  So, we have now gone from protecting the religious rights of individuals from the state by walling off the state, to protecting the state from the religious rights or people, to an even further point where we are building the walls around religion to entirely hem them in.

The whole modern notion of a complete removal of any religion from the public sphere has led to a sort of absurdity in this regard.  If I was a Lutheran, and I was deeply religious, what am I supposed to do if I get to become an elected official?  How does one check his entire moral worldview at the door when taking public office, which in large part deals with moral dilemmas on a daily basis?  Is using my Lutheran principles to guide my decisions in passing legislation, no matter how it is backed by Constitutional authority, a violation of the Establishment Clause?  However, that’s where we are.  We certainly haven’t legislatively disallowed any religious views for an elected official, but in practice we are acting that way when we have converted the freedom of religion into the freedom of private worship.  It was never intended that a public official should check their religion at the door.

You’ll notice something that wasn’t discussed: atheism.  In actuality, atheism is an absence of something, namely an absence of a belief in any deities.  By its very nature, you cannot exercise a non-belief because they are mutually exclusive activities.  Belief requires some actual thing to be believed, and atheism at its core declares there isn’t a thing to be believed in.  So, where does that stand in terms of the First Amendment?  How has the right to be free from religion somehow weaved its way into the free exercise of religion?  How is religion-neutral, which is essentially no religion at all, the new standard?  This is in stark contrast, again, to the original intention of the founding fathers, which was to protect the religious rights of the people, but it is a natural end to the hemming in of religion we see today.

So here we stand.  The state must be protected from religion, and we are slowly getting to the point where we are declaring the natural state of the public is religion-neutral.  Which, is quite honestly, a large difference from where we started.  For those who aren’t religious, this is no big deal.  However, one should probably step back and marvel at how a right, in the Bill of Rights, has morphed so much even though a single written word of it has never changed.  Don’t think for a second that this can’t happen in the future to other rights: all it takes is one court decision, with a couple of justices who think about something differently than you, to some day declare that 2+2=5 and make it the law of the land.

I guess I need to circle back to the beginning after such a long rant.  Was Scalia wrong?  I guess opinions can differ, but I think it’s safe to say a morphing Constitution, for better or worse, is a modern reality, when you can take one thing and make it mean something completely different over time.   Not to mention convince an entire public that a phrase exists in the Constitution when in actuality it can’t be found anywhere in the document.  Or convince an entire public that they should be thankful that that wall is there to protect the wolves from the sheep.