On the Occasion of the Selection of Judge Kavanaugh: Remembering Scalia.

Copyright (c) 1996 The University of Notre Dame
The American Journal of Jurisprudence



41 Am. J. Juris. 165


Robert A. Connor


By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience, 1 Justice Scalia has made the working of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.

When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: “Do justice, sir, do justice,” he responded: “That is not my job. It is my job to apply the law.” 2 Holmes was also known to comment: “I always say . . . that if my fellow citizens want to go to Hell I will help them. It’s my job.” 3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not do justice but apply the law, and if that law is abortion, “the state should permit abortion, in a democracy.” 4 The picture that emerged from Scalia’s speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the Nuremberg laws, “would have resigned.” 5

The different facets of the picture were …

* * * *



Robert A. Connor

September 17, 1996

By a straightforward presentation of his Constitutional philosophy devoid of legalese and teased with wit and metaphor before a philosophically and theologically sophisticated audience,1 Justice Scalia has made the workings of adjudication at its highest levels available to scrutiny and critique. We thank him for this. My remarks here are offered with the greatest respect for his thought and with the hope of engaging it in dialogue concerning the epistemology grounding representative government and adjudication within it.

When Justice Oliver Wendell Holmes was entreated by Judge Learned Hand: “Do justice, sir, do justice,” he responded: “That is not my job. It is my job to apply the law.”2 Holmes was also known to comment: “I always say… that if my fellow citizens want to go to Hell I will help them. It’s my job”3 The recent remarks of Justice Antonin Scalia seem to fall under the same rubric: not justice but apply the law, and if that law is abortion, “the state should permit abortion, in a democracy.”4 The picture that emerged from Scalia’s speech and even more clearly and radically from the question and answer period at the end was that adjudication was less a process of administering justice than a technical and rigid application of a law which is the product of majority vote. In the case of abortion, however, Scalia, as in his reference to the Nuremberg laws, “would have resigned.”5

The different facets of the picture were the following:

  1. a) Limitations for a Justice of the Court: It is a mistake to try to “persuade” a Justice of the Court on any point of law since he does not make law. His power is limited to the application of the will of the people brokered by the technical, literal reading of the Constitution and Bill of Rights. Scalia: “It is the Constitution that governs my action… But do it by not persuading me. I’m a worldly judge. I just do what the Constitution tells me to do.”6 Therefore, do not talk to him of the philosophy of Constitution, truths grounding the Constitution, etc. Invasion into arenas transcending the Constitution would be flagrant judicial activism and unwarranted migration of power into forbidden territory (and may I add the forbidden territory of the self-determining person who is exercising the freedom won for him by Jesus Christ) and therefore, imposing a tyranny by what has become a judiciary elite – nine unelected justices.[1]
  2. b) Extrinsicism of Religion and Morality: Government is as religiously and morally neutral as a “tooth paste”7 or a “crowbar.” It may act out “what is ultimately a motivation of morality, but it is a motivation of morality at the level of the individual citizen which then expresses itself in the majority vote that controls what the government does. But the government… in and of itself is totally neutral on those points. It is the people who must bring out the morality dimension that is reflected through the government. And I think that it is inconsistent with democratic theory that the government has an obligation to do that in and of itself.”8

This extrinsicism of morality to government “in and of itself” is repeated again: “But that process (Christian inspiration of law) is achieved not within the context of government but outside the context of government, with free men and women persuading one another and then adopting a governmental system that embodies those Christian precepts.”9

  1. c) Majority Rule: Part and parcel of this neutrality is the quantitative rule of the majority. The will of the majority is the source of authority, not any presumed truths concerning the person, rights, morality and even less, faith. The government is blind to faith, morality and inherent rights of the person. The person has no intrinsic rights that are presumed. The same were surrendered on entry into the social civil contract. Such presumed rights would contravene the authority and rule of the majority. Whatever they be, they are given by the majority, e.g., the Bill of Rights. Scalia: “The whole theory of democracy, my dear fellow, is that the majority rules, that is the whole theory of it. You protect minorities only because the majority determines that there are certain minorities or certain minority positions that deserve protection. Thus in the United States Constitution we have removed from the majoritarian system of democracy the freedom of speech, the freedom of religion, and a few other freedoms that are named in the Bill of Rights. The whole purpose of that is that the people themselves, that is to say the majority, agree to the rights of the minority on those subjects — but not on other subjects. If you want minority rights on other subjects, you must persuade the majority that you desire those minority rights. Or else you take up arms and conquer the majority. I mean you may always do that, of course.”10

Scalia concludes his answer with this telling remark: “The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights. Otherwise you do not want a democracy, you want a king to decide what is right.”11

  1. d) Democracy as Dogma: Democracy, then, is a political and legal structure incarnating the will of the majority to which one makes an act of self commitment akin to religious faith. Scalia: “Once you adopt democratic theory, it seems to me you accept that proposition. If the people, for example, want abortion, the state should permit abortion, in a democracy.12 If the people do not want it, the state should be able to prohibit it as well. It seems to me the crux of the matter for the Christian in a democracy is to use private institutions and his own voice to convert the democratic society, which will then have its effect upon the government. But I do not know how you can argue on the basis of democratic theory that the government has a moral obligation to do something that is opposed by the people. That works fine in a monarchy, I suppose, but I do not know how you can reconcile it with democratic theory.”13

Background: “You Can’t Beat Somebody With Nobody”

In a 1989 article “Originalism, the Lesser Evil,”14 Scalia ranges over the topic of constitutional adjudication in search of criterion, be it “originalism” which means attending to the original meaning of the constitutional text (not without serious problems), or be it “non-originalism” which means consulting a conceptual agreement or consensus15 in the light of which the Constitution may be interpreted. Confronting the latter, he pins on it an aphorism of Yogi Berra (or perhaps a Mayor Daly): “You can’t beat somebody with nobody,”16 since he finds no consensus on the meaning of the human person or on moral principle with which to interpret the Constitution now. Scalia remarks: “The central practical defect of non originalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once that is abandoned.”17 The result is that Scalia, finding “nobody” as authoritative on the level of self evidence18 and therefore truth to direct and order freedom, takes the “somebody” of the constitutional text (and therefore the will of the people as ultimate authority). Anything not in the text does not exist. Religious freedom, freedom of speech, etc. become “invisible” until they reappear in the Bill of Rights as a concession of majority will to the minority. “The minority loses, except to the extent that the majority, in its document of government, has agreed to accord the minority rights.”19

The great reality is that the experiential knowledge of the citizenry of the United States at the moment of the founding and in the mind of John Adams and in the pen of Thomas Jefferson was a “creed.” It emerged and came to the fore in the 150 years (1620-1776) the Reveolution. To deepen the perspective, Walter Berns testifies that, at the founding of  – 1776 the country, the freedom of self determination vis a vis religion, speech, etc. rests, indeed, on truth as having an absolute dimension.28 He remarks: “These principles (of free government) require the establishment of religious freedom, the right of men to hold whatever opinions they choose respecting God or gods. That men must have this choice is not itself a matter of choice or indifference29 (underline mine). He continues: “Freedom of religious opinion is absolute… the United States is founded on a `political creed,’ the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold’ to be `self-evident’ constitute a creed on which the country was founded.”30 Later, Berns insists that “they (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident’ truth respecting man’s nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth. Men are endowed with rights to life, liberty, and the pursuit of happiness,….

But it is of major interest that the experience, consciousness and words of the Constitution are fraught with the truth that is the Law of the United States and the adjudication that follows thereon.

Original Self Evidence: Historically, at the founding of the country, there was a consensus in truth so strong that it was perceived as self evidence in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights….” Berns remarks: “There was no dispute with respect to the principles on which the Constitution was built.”34 “The agreement among them was massive. There was no dispute about freedom of conscience or the free exercise of religion; the adoption of the clause protecting free exercise was an altogether perfunctory matter, giving rise to no difference whatsoever. There was no dispute with respect to the principles on which the Constitution was built; stated in its most radical form, they all agreed that our institutions do not presuppose a providential Supreme Being.”35 Again: “the United States is founded on a `political creed,’ the self-evident truths acknowledged in the Declaration of Independence. The truths that `we hold’ to be `self evident’ constitute a creed on which the country was founded… This may explain why Jefferson could say that difference of opinion is advantageous in religion and harmless in physics and geometry, and not say it regarding the fundamental principles of government36 (bold mine). And again: “They (the Founders) were fully convinced that the Constitution of the United States derived from a `self-evident’ truth respecting man’s nature and the government appropriate to it. In fact, toleration of different religious opinions rests, and can only rest, on this political truth… If this were merely an opinion… `it could not protect free inquiry into other opinions.’37

            The above thoughts will be brought up in the coming weeks with the yes or no confirmation of Judge Kavanaugh. I offer the perhaps not so clear remarks above as the context to re-propose  the position of Justice Scalia that I believe is true and that should prevail now. And that position, I repeat, is that Justice Kavanaugh is not to rule on his own lights, but on the lights of the Constitution as laid out in 1789 and 91 in the Bill of Rights. It is not a judicial positivism of words that is rigid and dead but of words that represent the living truth of the American People. Those words remarkably contain the truth of the human person for God and for each other.

[1] I recall a social visit to Scalia sealed by four years of Jesuit education from 1949-1953 when I referred to the debacle of legal abortion. His rejoinder was (paraphrasing): You’re at fault. Go, form the people, convince them to govern themselves according to the truth they carry in themselves, and have it legislated into law. My mission then is to apply it. If it is contrary to truth, they must amend it. In a democracy, he saw himself as a technician applying the law derived from the people. This is theologically and philosophically correct in that the human person is created in the image and likeness of God with the  ontological tendency to self-determination (freedom).

Disinterested Generosity of Elon Musk and Firefighter Rick Stanton in Thai Cave Rescue. All Generous

John Volanthen and Rick Stanton 

Stanton told Musk to continue with the development of the sub… If not now…. in the future.

With the go-ahead from Thai authorities, Mr Unsworth contacted John Volanthen, an IT consultant based in Bristol, and Rick Stanton, a former midlands fire fighter.

The pair have been described as the “A Team” by Bill Whitehouse,vice chairman of the British Cave Rescue Council.

Mr Stanton, 56, Mr Volanthen, 47, discovered the boys and their coach trapped in an air pocket 2.5 miles into the cave system last week.

Mr Whitehous told Radio 4’s Today programme last week: “They have been at the spearhead of making their way through because they have the skills and expertise to do it.

“One of the first things they had to do in pushing through is lay a guideline so that they could get out again and so others could follow along.”

Voices heard on a video of the moment the group was discovered in the cave belong to Mr Stanton and Mr Volanthen.

The pair have established a reputation as being among the greatest cave rescue divers on the planet – but both have day jobs in the UK.

Mr Stanton has been a firefighter in Coventry for quarter of a century, while Mr Volanthen is an IT consultant based in Bristol.


Both are volunteers with the South and Mid Wales Cave Rescue Team.

In 2011, the pair set a world record for the longest cave dive, penetrating 9km (5.5 miles) down a system in northern Spain using specially developed equipment.

The former Thai provincial governor (described inaccurately as “rescue chief”) is not the subject matter expert. That would be Dick Stanton, who co-led the dive rescue team. This is our direct correspondence:

7:03 AM – 10 Jul 2018

  • Stanton to Musk:

I’d love to see a short documentary on the design, development, fabrication and testing of the Mini Sub. Even though it wasn’t used, the fast turnaround was remarkable. Probably some lessons other mfrs could learn.


Originalism: The Lesser Evil: Justice Antonin Scalia

With the President’s selection of a pro-constitutional judge, Bret Kavanaugh who said Monday night that the juges” must interpret the law, not make the law,” the epistemological topic of subject/object in terms of the interpretation of the law  again comes to the fore. For starters, here is Justice Scalia’s mind on the subject. When Scalia turns directly to Originalism,” I highlight that in large print below to facilitate going to that directly. Look for it to get to his point which is highlighted in this expression taken from Yogi Berra: “You can’t beat somebody with nobody.”

57 U. Cin. L. Rev. 849 (1989)
(Reproduced with permission)

This series of lectures is dedicated to the memory of Chief Justice William Howard Taft, an extraordinary man by any standard. A state trial judge at twenty-nine, Solicitor General of the United States at thirty-two, a United States Circuit Judge at thirty-four, Professor and Dean at the University of Cincinnati Law School, High Commissioner of the Philippines, Secretary of War, President of the United States, and Chief Justice of the United States. When a Justice of the Supreme Court is invited to give this lecture, I presume it is the great man’s judicial career that is expected to be at least the jumping-off point for the discussion. That also happens to be the part of his diverse life that Taft himself most valued, judging by a statement he made at the time of his nomination to the Chief Justiceship (not only an appropriate modesty but even a fear of the Almighty gives me some pause at quoting this): “I love judges, and I love courts. They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.” n1

Taft is generally acknowledged to have been one of the greatest Chief Justices — not so much on the basis of his opinions, perhaps because many of them ran counter to the ultimate sweep of history. One commentator observes condescendingly:

Taft’s Chief Justiceship might have been constructive, but for his haunting fear of progressivism and progressives. Had he maintained the powerful position he assumed in his commerce cases and minimum wage dissent, Adkins v. Children’s Hospital, 261 U.S. 525 (1923), he might have, with the backing of Holmes, Brandeis, Stone, and possibly Sanford, swung the Court along the line the great triumvirate was so eloquently staking out. Lacking in William Howard Taft was the quality Woodrow Wilson suggested as an essential requirement of statesmanship — “a large vision of things to come.” n2

This is presumably the school of history that assesses the greatness of a leader by his success in predicting where the men he is leading want to go. That is perhaps the way the world ultimately evaluates [850] things — but one may think that Taft, having (as I have described) a more celestial view of the judge’s function, had a quite accurate “vision of things to come,” did not like them, and did his best, with consummate skill but ultimate lack of success, to alter the outcome. To demean him for not being Brandeis is to demean Lee for not being Grant.

Be that as it may, Taft’s reputation as one of the greatest Chief Justices rests not primarily upon his opinions but upon his organizational and administrative skills which, together with his political acumen, immensely improved the quality of federal justice. As described by one biographer, in his very first year as Chief Justice, Taft “launched his campaign for reform, making appeals in speeches across the continent, presenting his case in legal periodicals and in testimony before the House and Senate Judiciary Committees.” n3 He succeeded in obtaining passage of the Act of Sept. 14, 1922, n4 which established the Judicial Conference of the United States, and the Judiciary Act of 1925, n5 which finally brought the Supreme Court’s unmanageable docket under control by rendering the vast majority of its jurisdiction discretionary. He successfully opposed (and this should be of particular interest to modern lawyers, for the issue is still with us) Senator Norris’ bill to eliminate the diversity jurisdictional of the federal courts. n6 I am tangibly in his debt more than most of you, since he obtained for the Court its first (and current) home, the Supreme Court building that is now the symbol of equal justice under law.

But just as I may be forgiven for not addressing a subject related to Taft’s accomplishments as President, I hope I may be pardoned as well for not addressing a subject dealing with judicial administration — for that also is not my current line of territory. Rather, what leapt to my mind as I contemplated this talk was that legal opinion of the Chief Justice which is generally regarded as his most significant one — and which he himself must have regarded as his most significant one, if his personal estimation can validly be measured by the amount of time he took to produce it, and by its sheer length. Indeed, we need not rely upon that persuasive secondary evidence, for Taft himself said of the case: “I never wrote an opinion that I felt to be so important in its effect.” n7

[851] I refer to the Chief Justice’s opinion for the Court in Myers v. United States, n8 which declared unconstitutional congressional attempts to restrict presidential removal of executive officers. Argument in that case was first heard on December 5, 1923. It was set for reargument and heard again the next Term, almost a year-and-a-half later, on April 13th and 14th, 1925. (In those days oral argument was, to understate the point, somewhat more protracted.) The Chief Justice’s seventy page opinion for the Court, as well as a one-page dissent by Justice Holmes, a sixty-one page dissent by Justice McReynolds, and a fifty-five page dissent by Justice Brandeis, did not issue until more than a year-and-a-half after this second argument, on October 25, 1926. I have always been impressed, incidentally, by the contrast between that lengthy gestation period and the period between argument and issuance of the famous opinion, about eight-and-one-half years later, after Charles Evans Hughes had succeeded Taft as Chief Justice, in which a unanimous Supreme Court essentially overruled the analysis of Myers in fourteen quick pages. n9

Humphrey’s Executor v. United States, n10 which invalidated President Franklin Roosevelt’s attempt to remove a member of the Federal Trade Commission who was uncongenial to his philosophy, was argued on May 1, 1935, and decided twenty-six days later — the same day the Court declared unconstitutional Roosevelt’s National Industrial Recovery Act. n11 Many (including President Roosevelt) thought that the rapid switch in legal analysis between Myers and Humphrey’s Executor had much to do with the Justices’ antagonism towards the New Deal; but surely it must also reflect the great intellectual influence that Taft, an ex-President and hence a supporter of Executive power, had exercised over his colleagues.

Perhaps Chief Justice Taft’s opinion in Myers came so readily to my mind as I was considering the subject of this talk because it dealt with the presidential removal power, the same issue that was before us in the most significant case we decided last term — the independent counsel case. n12 The reason I want to discuss it, however, has nothing to do with the substantive issue; I said all I intend to about that in my lonesome dissent. What attracts my attention about the Myers opinion is not its substance but its process. It is a prime example of what, in current scholarly discourse, is known as the “originalist” [852] approach to constitutional interpretation. The objective of the Chief Justice’s lengthy opinion was to establish the meaning of the Constitution, in 1789, regarding the presidential removal power. He sought to do so by examining various evidence, including not only, of course, the text of the Constitution and its overall structure, but also the contemporaneous understanding of the President’s removal power (particularly the understanding of the First Congress and of the leading participants in the Constitutional Convention), the background understanding of what “executive power” consisted of under the English constitution, and the nature of the executive’s removal power under the various state constitutions in existence when the federal Constitution was adopted. It is easy to understand why this would take almost three years and seventy pages. As I shall later have occasion to describe, done perfectly it might well take thirty years and 7,000 pages.

It may surprise the layman, but it will surely not surprise the lawyers here, to learn that originalism is not, and had perhaps never been, the sole method of constitutional exegesis. It would be hard to count on the fingers of both hands and the toes of both feet, yea, even on the hairs of one’s youthful head, the opinions that have in fact been rendered not on the basis of what the Constitution originally meant, but on the basis of what the judges currently thought it desirable for it to mean. That is, I suppose, the sort of behavior Chief Justice Hughes was referring to when he said the Constitution is what the judges say it is. But in the past, nonoriginalist opinions have almost always had the decency to lie, or at least to dissemble, about what they were doing — either ignoring strong evidence of original intent that contradicted the minimal recited evidence of an original intent congenial to the court’s desires, or else not discussing original intent at all, speaking in terms of broad constitutional generalities with no pretense of historical support. The latter course was adopted, to sweep away Taft’s analysis, in Humphrey’s Executor, which announced the novel concept of constitutional powers that are neither legislative, nor executive nor judicial, but “quasi-legislative” and “quasi-judicial.” n13 It is only in relatively recent years, however, that nonoriginalist exegesis has, so to speak, come out of the closet, and put itself forward overtly as an intellectually legitimate device. To be sure, in support of its venerability as a legitimate interpretive theory there is often trotted out John Marshall’s statement in McCulloch v. Maryland that “we must never forget [853] it is a constitution we are expounding” n14 — as though the implication of that statement was that our interpretation must change from age to age. But that is a canard. The real implication was quite the opposite: Marshall was saying that the Constitution had to be interpreted generously because the powers conferred upon Congress under it had to be broad enough to serve not only the needs of the federal government originally discerned but also the needs that might arise in the future. If constitutional interpretation could be adjusted as changing circumstances required, a broad initial interpretation would have been unnecessary.

Those who have not delved into the scholarly writing on constitutional law for several years may be unaware of the explicitness with which many prominent and respected commentators reject the original meaning of the Constitution as an authoritative guide. Harvard Professor Laurence H. Tribe, for example, while generally conducting his constitutional analysis under the rubric of the open-ended textual provisions such as the Ninth Amendment, does not believe that the originally understood content of those provisions has much to do with how they are to be applied today. The Constitution, he has written, “invites us, and our judges, to expand on the . . . freedoms that are uniquely our heritage,” n15 and “invites a collaborative inquiry, involving both the Court and the country, into the contemporary content of freedom, fairness, and fraternity.” n16 Stanford Dean Paul Brest, having (in his own words) “abandoned both consent and fidelity to the text and original understanding as the touchstones of constitutional decisionmaking,” n17 concludes that “the practice of constitutional decisionmaking should enforce those, but only those, values that are fundamental to our society.” n18 While Brest believes that the “text,” “original understanding,” “custom,” “social practices,” “conventional morality,” and “precedent” all strongly inform the determination of those values, the conclusions drawn from all these sources are “defeasible in the light of changing public values.” n19 Yale Professor Owen Fiss asserts that, whatever the Constitution might originally have meant, the courts should give “concrete meaning and application” to those values that “give our society an identity and inner coherence [and] its distinctive public [854] morality.” n20 Oxford Professor (and expatriate American) Ronald Dworkin calls for “a fusion of constitutional law and moral theory.” n21 Harvard Professor Richard Parker urges, somewhat more specifically, that constitutional law “take seriously and work from (while no doubt revising) the classical conception of a republic, including its elements of relative equality, mobilization of citizenry, and civic virtue.” n22 More specifically still, New York University Professor David Richards suggests that it would be desirable for the courts’ constitutional decisions to follow the contractarian moral theory set forth in Professor John Rawls’ treatise, A Theory of Justice. n23 And I could go on.

The principal theoretical defect of nonoriginalism, in my view, is its incompatibility with the very principle that legitimizes judicial review of constitutionality. Nothing in the text of the Constitution confers upon the courts the power to inquire into, rather than passively assume, the constitutionality of federal statutes. That power is, however, reasonably implicit because, as Marshall said in Marbury v. Madison, (1) “[i]t is emphatically the province and duty of the judicial department to say what the law is,” (2) “[i]f two laws conflict with each other, the courts must decide on the operation of each,” and (3) “the constitution is to be considered, in court, as a paramount law.” n24 Central to that analysis, it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of “law” that is the business of the courts — an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. If the Constitution were not that sort of a “law,” but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature? One simply cannot say, regarding that sort of novel enactment, that “[i]t is emphatically the province and duty of the judicial department” to determine its content. Quite to the contrary, the legislature would seem a much more appropriate expositor of social values, and its determination that a statute is compatible with the Constitution should, as in England, prevail.

[855] Apart from the frailty of its theoretical underpinning, nonoriginalism confronts a practical difficulty reminiscent of the truism of elective politics that “You can’t beat somebody with nobody.” It is not enough to demonstrate that the other fellow’s candidate (originalism) is no good; one must also agree upon another candidate to replace him. Just as it is not very meaningful for a voter to vote “non-Reagan,” it is not very helpful to tell a judge to be a “non-originalist.” If the law is to make any attempt at consistency and predictability, surely there must be general agreement not only that judges reject one exegetical approach (originalism), but that they adopt another. And it is hard to discern any emerging consensus among the nonoriginalists as to what this might be. Are the “fundamental values” that replace original meaning to be derived from the philosophy of Plato, or of Locke, or Mills, or Rawls, or perhaps from the latest Gallup poll? This is not to say that originalists are in entire agreement as to what the nature of their methodology is; as I shall mention shortly, there are some significant differences. But as its name suggests, it by and large represents a coherent approach, or at least an agreed-upon point of departure. As the name “nonoriginalism” suggests (and I know no other, more precise term by which this school of exegesis can be described), it represents agreement on nothing except what is the wrong approach.

Finally, I want to mention what is not a defect of nonoriginalism, but one of its supposed benefits that seems to me illusory. A bit earlier I quoted one of the most prominent nonoriginalists, Professor Tribe, to the effect that the Constitution “invites us, and our judges, to expand on the . . . freedoms that are uniquely our heritage.” n25 I think it fair to say that that is a common theme of nonoriginalists in general. But why, one may reasonably ask — once the original import of the Constitution is cast aside to be replaced by the “fundamental values” of the current society — why are we invited only to “expand on” freedoms, and not to contract them as well? Last Term we decided a case, Coy v. Iowa, n26 in which, at the trial of a man accused of taking indecent liberties with two young girls, the girls were permitted to testify separated from the defendant by a screen which prevented them from seeing him. We held that, at least absent a specific finding that these particular witnesses needed such protection, this procedure violated that provision of the Sixth Amendment that assures a criminal defendant the right “to be confronted with the witnesses against him.” n27 Let us hypothesize, however [856] (a hypothesis that may well be true), that modern American society is much more conscious of, and averse to, the effects of “emotional trauma” than was the society of 1791, and that it is, in addition, much more concerned about the emotional frailty of children and the sensitivity of young women regarding sexual abuse. If that is so, and if the nonoriginalists are right, would it not have been possible for the Court to hold that, even though in 1791 the confrontation clause clearly would not have permitted a blanket exception for such testimony, it does so today? Such a holding, of course, could hardly be characterized as an “expansion upon” preexisting freedoms. Or let me give another example that is already history: I think it highly probable that over the past two hundred years the Supreme Court, though not avowedly under the banner of “nonoriginalist” interpretation, has in fact narrowed the contract clause of the Constitution n28 well short of its original meaning. n29 Perhaps we are all content with that development — but can it possibly be asserted that it represented an expansion, rather than a contraction, of individual liberties? Our modern society is undoubtedly not as enthusiastic about economic liberties as were the men and women of 1789; but we should not fool ourselves into believing that because we like the result the result does not represent a contraction of liberty. Nonoriginalism, in other words, is a two-way street that handles traffic both to and from individual rights.

Let me turn next to originalism, which is also not without its warts. Its greatest defect, in my view, is the difficulty of applying it correctly. Not that I agree with, or even take very seriously, the intricately elaborated scholarly criticisms to the effect that (believe it or not) words have no meaning. They have meaning enough, as the scholarly critics themselves must surely believe when they choose to express their views in text rather than music. But what is true is that it is often exceedingly difficult to plumb the original understanding of an ancient text. Properly done, the task requires the consideration of an enormous mass of material — in the case of the Constitution and its Amendments, for example, to mention only one element, the records of the ratifying debates in all the states. Even beyond that, it requires an evaluation of the reliability of that material — many of the reports of the ratifying debates, for example, are thought to be quite unreliable. And further still, it requires immersing oneself in the political and intellectual atmosphere of the time — somehow placing out of mind knowledge that we have which an earlier [857] age did not, and putting on beliefs, attitudes, philosophies, prejudices and loyalties that are not those of our day. It is, in short, a task sometimes better suited to the historian than the lawyer.

Let me provide a small example of this from Chief Justice Taft’s lengthy — and on the whole admirable — effort in Myers. One of the issues at hand (though not the only one) was what was understood to be the inherent content of the phrase “[t]he executive Power” in Article II, §1, which provides that “[t]he executive Power shall be vested in a President of the United States of America.” n30 Specifically, was the phrase “the executive Power” a term of art that included the power to dismiss officers of the executive branch? Taft disposes of this question in three sentences:

In the British system, the Crown, which was the executive, had the power of appointment and removal of executive officers, and it was natural, therefore, for those who framed our Constitution to regard the words “executive power” as including both. Ex Parte Grossman, 267 U.S. 87, 110. Unlike the power of conquest of the British Crown, considered and rejected as a precedent for us in Fleming v. Page, 9 How. 603, 618, the association of removal with appointment . . . is not incompatible with our republican form of Government. n31

It will be noted that this analysis simply assumes that the English experience is relevant. That is seemingly a reasonable assumption. After all, the colonists of 1789 were Englishmen, and one would think that their notion of what “the executive Power” included would comport with that tradition. But in fact the point is not at all that clear. Senator George Wharton Pepper, who at the Court’s request had filed an amicus brief and argued as amicus before the Court, contended that “none of the members of the Constitutional Convention who took part in the debates desired the President to wield the powers which at the time were exercisable by the King of England.” n32 Worse still, Chief Justice Taney’s opinion in the 1850 case of Fleming v. Page, n33 which Taft cited in the passage I quoted, had said the following:

[I]n the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States, and the authority and sovereignty which belong to the English crown, that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards [858] conquest in war, or any other subject where the rights and powers of the executive arm of the government are brought into question. n34

Taft’s opinion adequately distinguished the holding of Fleming on the ground that it related to a different executive power, “incompatible with our republican form of Government;” n35 but did not at all come to grips with the contradiction that Taney, unlike Taft, did not think the English experience relevant to “any . . . subject where the rights and powers of the executive arm of the government are brought into question.” n36 Nor did the opinion respond to the seemingly telling point made in Justice McReynolds’ dissent, that Jefferson’s 1783 Draft of a Fundamental Constitution for the Commonwealth of Virginia had provided:

The executive powers shall be exercised by a Governor . . . By executive powers, we mean no reference to those powers exercised under our former government by the crown as of its prerogative, nor that these shall be the standard of what may or may not be deemed the rightful powers of the Governor. n37

And finally, Taft’s opinion offered no support whatever for the asserted proposition that the English experience was relevant, except for the citation to Taft’s earlier opinion in Ex Parte Grossman n38 — which quoted from an 1856 case Ex Parte Wells to the effect that “when the words to grant pardons were used in the Constitution, they conveyed to the mind the authority as exercised by the English crown. . . .” n39 But quite obviously, that the constitutional phrase “to grant Pardons” meant the same thing it meant in the English system is only marginally relevant to whether the phrase “[t]he executive Power” meant the same.

Having mentioned the gaps in Chief Justice Taft’s analysis, let me suggest just some of the material he might have used to fill them. It is unquestionable that many in the founding generation “did not consider the Prerogatives of the British Monarch as a proper guide for defining the Executive powers” (those were the words of James Wilson, as recorded in Madison’s notes of the Constitutional Convention). n40 Indeed, that sentiment was so widespread that the proponents [859] of the Constitution during the ratification campaign felt constrained to emphasize the important differences between British royal prerogative and the powers of the presidency. n41 That can be conceded, however, without impairing Taft’s central point that a reference to “the executive Power” without further qualification would be taken as a reference to the traditional powers of the English King, except those inherently incompatible with republican government.

Research conducted years later by Professor William Winslow Crosskey would have been helpful to Taft. Referring to the royal prerogatives as described in William Blackstone’s Commentaries on the Laws of England, which had been published in Philadelphia in the early 1770s, Crosskey noted that many — indeed, almost half — of Congress’ enumerated powers had been considered royal prerogatives under the law of England at the time of our Constitution’s adoption. n42 For example, Blackstone wrote that the king had “the sole power of raising and regulating fleets and armies,” n43 whereas, of course, these powers under our Constitution reside in Congress by virtue of article I, section 8, clauses 12 through 14. The Constitution also expressly confides in the President certain traditional royal prerogatives subject to limitations not known in the English constitution. Thus, for example, the king’s absolute veto of legislation became a qualified veto subject to override by a two-thirds vote of Congress, n44 and the king’s ability to conclude treaties became a presidential power to negotiate treaties, with a two-thirds vote of the Senate needed for ratification. n45

It is apparent from all this that the traditional English understanding of executive power, or, to be more precise, royal prerogatives, was fairly well known to the founding generation, since they appear repeatedly in the text of the Constitution in formulations very similar to those found in Blackstone. It can further be argued that when those prerogatives were to be reallocated in whole or part to other branches of government, or were to be limited in some other way, [860] the Constitution generally did so expressly. One could reasonably infer, therefore, that what was not expressly reassigned would — at least absent patent incompatibility with republican principles — remain with the executive. And far from refuting this, Jefferson’s draft constitution for Virginia, alluded to earlier, could be said to support it. Why, Taft might have argued, would Jefferson have felt it necessary to specify that “[b]y executive powers, we mean no reference to those powers exercised under our former government by the crown” unless, without that specification, such reference would reasonably be assumed? n46

I am not setting forth all of this as necessarily the correct historical analysis, but as an example of how an expansion of Taft’s three brief sentences might have at least begun. I should note, moreover, that those three sentences bore the burden of establishing not only (what we have just discussed) that the phrase “the executive Power” referred to the king’s powers, but also that the king’s powers in fact included the power to remove executive officials. Taft’s opinion contains nothing to support that point, except the unsubstantiated assertion that “[i]n the British system, the Crown . . . had the power of appointment and removal of executive officers. . . .” n47 That is probably so, but the nature of the relationship between the Crown and the government in England during the relevant period was a sufficiently complicated and changing one, that something more than an ipse dixit was called for. n48

Well, I leave it to the listener’s imagination how many pages would have had to have been added to Taft’s seventy-page opinion, and how many months to his almost three years of intermittent labor, to flesh out this relatively minor point in a fashion that a serious historian would consider minimally adequate. And this is just one of many points that could have used elaboration. Nowadays, of course, the Supreme Court does not give itself as much time to decide cases as was customary in Taft’s time. Except in those very rare instances in which a case is set for reargument, the case will be decided in the same Term in which it is first argued — allowing at best the period between the beginning of October and the end of June, and at worst the period between the end of April and the end of June. The independent counsel case last Term n49 — involving precisely the historical materials Myers had to consider, and then some — was argued on April 26, and the thirty-eight-page opinion and thirty-eight-page [861] dissent (I believe in equal time) issued on June 29. Do you have any doubt that this system does not present the ideal environment for entirely accurate historical inquiry? Nor, speaking for myself at least, does it employ the ideal personnel.

I can be much more brief in describing what seems to me the second most serious objection to originalism: In its undiluted form, at least, it is medicine that seems too strong to swallow. Thus, almost every originalist would adulterate it with the doctrine of stare decisis — so that Marbury v. Madison would stand even if Professor Raoul Berger should demonstrate unassailably that it got the meaning of the Constitution wrong. (Of course recognizing stare decisis is seemingly even more incompatible with nonoriginalist theory: If the most solemnly and democratically adopted text of the Constitution and its Amendments can be ignored on the basis of current values, what possible basis could there be for enforced adherence to a legal decision of the Supreme Court?) But stare decisis alone is not enough to prevent originalism from being what many would consider too bitter a pill. What if some state should enact a new law providing public lashing, or branding of the right hand, as punishment for certain criminal offenses? Even if it could be demonstrated unequivocally that these were not cruel and unusual measures in 1791, and even though no prior Supreme Court decision has specifically disapproved them, I doubt whether any federal judge — even among the many who consider themselves originalists — would sustain them against an eighth amendment challenge. It may well be, as Professor Henry Monaghan persuasively argues, that this cannot legitimately be reconciled with originalist philosophy — that it represents the unrealistic view of the Constitution as a document intended to create a perfect society for all ages to come, whereas in fact it was a political compromise that did not pretend to create a perfect society even for its own age (as its toleration of slavery, which a majority of the founding generation recognized as an evil, well enough demonstrates). n50 Even so, I am confident that public flogging and handbranding would not be sustained by our courts, and any espousal of originalism as a practical theory of exegesis must somehow come to terms with that reality.

One way of doing so, of course, would be to say that it was originally intended that the cruel and unusual punishment clause would have an evolving content — that “cruel and unusual” originally meant “cruel and unusual for the age in question” and not “cruel and unusual in 1791.” But to be faithful to originalist philosophy, [862] one must not only say this but demonstrate it to be so on the basis of some textual or historical evidence. Perhaps the mere words “cruel and unusual” suggest an evolutionary intent more than other provisions of the Constitution, but that is far from clear; and I know of no historical evidence for that meaning. And if the faint-hearted originalist is willing simply to posit such an intent for the “cruel and unusual punishment” clause, why not for the due process clause, the equal protection clause, the privileges and immunity clause, etc.? When one goes down that road, there is really no difference between the faint-hearted originalist and the moderate nonoriginalist, except that the former finds it comforting to make up (out of whole cloth) an original evolutionary intent, and the latter thinks that superfluous. It is, I think, the fact that most originalists are faint-hearted and most nonoriginalists are moderate (that is, would not ascribe evolving content to such clear provisions as the requirement that the President be no less than thirty-five years of age) which accounts for the fact that the sharp divergence between the two philosophies does not produce an equivalently sharp divergence in judicial opinions.

Having described what I consider the principal difficulties with the originalist and nonoriginalist approaches, I suppose I owe it to the listener to say which of the two evils I prefer. It is originalism. I take the need for theoretical legitimacy seriously, and even if one assumes (as many nonoriginalists do not even bother to do) that the Constitution was originally meant to expound evolving rather than permanent values, as I discussed earlier I see no basis for believing that supervision of the evolution would have been committed to the courts. At an even more general theoretical level, orginalism seems to me more compatible with the nature and purpose of a Constitution in a democratic system. A democratic society does not, by and large, need constitutional guarantees to insure that its laws will reflect “current values.” Elections take care of that quite well. The purpose of constitutional guarantees — and in particular those constitutional guarantees of individual rights that are at the center of this controversy — is precisely to prevent the law from reflecting certain changes in original values that the society adopting the Constitution thinks fundamentally undesirable. Or, more precisely, to require the society to devote to the subject the long and hard consideration required for a constitutional amendment before those particular values can be cast aside.

I also think that the central practical defect of nonoriginalism is fundamental and irreparable: the impossibility of achieving any consensus on what, precisely, is to replace original meaning, once [863] that is abandoned. The practical defects of originalism, on the other hand, while genuine enough, seem to me less severe. While it may indeed be unrealistic to have substantial confidence that judges and lawyers will find the correct historical answer to such refined questions of original intent as the precise content of “the executive Power,” for the vast majority of questions the answer is clear. The death penalty, for example, was not cruel and unusual punishment because it is referred to in the Constitution itself; and the right of confrontation by its plain language meant, at least, being face-to-face with the person testifying against one at trial. For the nonoriginalist, even these are open questions. As for the fact that originalism is strong medicine, and that one cannot realistically expect judges (probably myself included) to apply it without a trace of constitutional perfectionism: I suppose I must respond that this is a world in which nothing is flawless, and fall back upon G. K. Chesterton’s observation that a thing worth doing is worth doing badly.

It seems to me, moreover, that the practical defects of originalism are defects more appropriate for the task at hand — that is, less likely to aggravate the most significant weakness of the system of judicial review and more likely to produce results acceptable to all. If one is hiring a reference-room librarian, and has two applicants, between whom the only substantial difference is that the one’s normal conversational tone tends to be too loud and the other’s too soft, it is pretty clear which of the imperfections should be preferred. Now the main danger in judicial interpretation of the Constitution — or, for that matter, in judicial interpretation of any law — is that the judges will mistake their own predilections for the law. Avoiding this error is the hardest part of being a conscientious judge; perhaps no conscientious judge ever succeeds entirely. Nonoriginalism, which under one or another formulation invokes “fundamental values” as the touchstone of constitutionality, plays precisely to this weakness. It is very difficult for a person to discern a difference between those political values that he personally thinks most important, and those political values that are “fundamental to our society.” Thus, by the adoption of such a criterion judicial personalization of the law is enormously facilitated. (One might reduce this danger by insisting that the new “fundamental values” invoked to replace original meaning be clearly and objectively manifested in the laws of the society. But among all the varying tests suggested by nonoriginalist theoreticians, I am unaware that that one ever appears. Most if not all nonoriginalists, for example, would strike down the death penalty, though it continues to be widely adopted in both state and federal legislation.)

[864] Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. And the principal defect of that approach — that historical research is always difficult and sometimes inconclusive — will, unlike nonoriginalism, lead to a more moderate rather than a more extreme result. The inevitable tendency of judges to think that the law is what they would like it to be will, I have no doubt, cause most errors in judicial historiography to be made in the direction of projecting upon the age of 1789 current, modern values — so that as applied, even as applied in the best of faith, originalism will (as the historical record shows) end up as something of a compromise. Perhaps not a bad characteristic for a constitutional theory. Thus, nonoriginalists can say, concerning the principal defect of originalism, “Oh happy fault.” Originalism is, it seems to me, the librarian who talks too softly.

Having made that endorsement, I hasten to confess that in a crunch I may prove a faint-hearted originalist. I cannot imagine myself, any more than any other federal judge, upholding a statute that imposes the punishment of flogging. But then I cannot imagine such a case’s arising either. In any event, in deciding the cases before me I expect I will rarely be confronted with making the stark choice between giving evolutionary content (not yet required by stare decisis) and not giving evolutionary content to particular constitutional provisions. The vast majority of my dissents from nonoriginalist thinking (and I hope at least some of those dissents will be majorities) will, I am sure, be able to be framed in the terms that, even if the provision in question has an evolutionary content, there is inadequate indication that any evolution in social attitudes has occurred. n51 That — to conclude this largely theoretical talk on a note of reality — is the real dispute that appears in the case: not between nonoriginalists on the one hand and pure originalists on the other, concerning the validity of looking at all to current values; but rather between, on the one hand, nonoriginalists, fainthearted originalists and pureoriginalists- accepting-for-the-sake-of-argument-evolutionary-content, and, on the other hand, other adherents of the same three approaches, concerning the nature and degree of evidence necessary to demonstrate that constitutional evolution has occurred.

I am left with a sense of dissatisfaction, as I am sure you are, that a discourse concerning what one would suppose to be a rather fundamental — indeed, the most fundamental — aspect of constitutional [865] theory and practice should end so inconclusively. But it should come as no surprise. We do not yet have an agreed upon theory for interpreting statutes, either. I find it perhaps too laudatory to say that this is the genius of the common law system; but it is at least its nature.


n1. Mason, William Howard Taft, in III The Justices of the Supreme Court 1789-1978 2105 (L.Friedman and F. Israel ed. 1980).
n2. Id. at 2120.
n3. Id. at 2109.
n4. Act of Sept. 14, 1922, ch. 306, 42 Stat. 837 (1922).
n5. Judiciary Act of 1925, ch. 229, 43 Stat. 936 (1925).
n6. Mason, supra note 1, at 2110.
n7. Id. at 2118.
n8. 272 U.S. 52 (1926).
n9. Humphrey’s Executor v. United States, 295 U.S. 602 (1935).
n10. Id.
n11. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
n12. See Morrison v. Olsen, 108 S. Ct. 2597 (487 U.S. 654) (1988).
n13. Humphrey’s Executor v. United States, 295 U.S. 602, 628 (1935).
n14. McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407 (1819).
n15. L. Tribe, God Save This Honorable Court 45 (1985).
n16. L. Tribe, American Constitutional Law 771 (2d ed. 1988).
n17. Brest, The Misconceived Quest for the Original Understanding, 60 B.U.L. Rev. 204, 226 (1980).
n18. Id. at 227.
n19. Id. at 229.
n20. Fiss, The Supreme Court 1978 Term — Forward: The Forms of Justice, 93 Harv. L. Rev. 1, 9, 11 (1979).
n21. R. Dworkin, Taking Rights Seriously 149 (1977).
n22. Parker, The Past of Constitutional Theory — And Its Future, 42 Ohio St. L.J. 223, 258 n.146 (1981).
n23. Richards, Constitutional Privacy, The Right to Die and the Meaning of Life: A Moral Analysis, 22 Wm. & Mary L. Rev. 327, 344-47 (1981).
n24. Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177 (1803).
n25. L. Tribe, supra note 15, at 45.
n26. Coy v. Iowa, 108 S. Ct. 2798 (487 U.S. 1012) (1988).
n27. Id. at 2800.
n28. U.S. CONST. art. I, § 10, cl. 2.
n29. See, e.g., Home Building and Loan Association v. Blaisdell, 290 U.S. 398 (1934).
n30. U.S. CONST. art. II, § 1.
n31. Myers v. United States, 272 U.S. 52, 118 (1926).
n32. Id. at 79.
n33. Fleming v. Page, 50 U.S. (9 HOW.) 603 (1850).
n34. Id. at 618.
n35. Myers, supra note 31 at 118.
n36. Fleming, supra note 33 at 618 (emphasis added).
n37. Myers, supra note 31 at 235.
n38. Id. at 118.
n39. Ex Parte Grossman, 267 U.S. 87, 110 (quoting Ex Parte Wells, 59 U.S. (18 HOW.) 307, 311 (1855)).
n40. See 1 M. Farrand, The Records of the Federal Convention of 1787 at 65 (1966).
n41. See, e.g., The Federalist No. 67 at 452-57 (A. Hamilton) (J. Cooke ed. 1961); IV J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 107-10 (1866) (remarks of Iredell at North Carolina Convention).
n42. See 1 W. Crosskey, Politics and the Constitution 428 (1953); see also U.S. CONST. art. 1, § 8.
n43. II W. Blackstone, Commentaries on the Laws of England 262 n. 33 (Tucker ed. 1803).
n44. Compare id. at 260, 260-61 n.30, with U.S. CONST. art. II, § 2, cl. 2.
n45. Compare id. at 257, 257 n.21, with U.S. CONST. art. II, § 2, cl. 2.
n46. Myers, supra note 31 at 235.
n47. Id. at 118.
n48. See F. Maitland, The Constitutional History of England 387-400 (1908).
n49. Morrison, supra note 12.
n50. See Monaghan, Our Perfect Constitution, 56 N.Y.U.L. Rev. 353 (1981).
n51. See, e.g., Thompson v. Oklahoma, 108 S. Ct. 2687, 2711 (487 U.S. 815, 859) (1988) (Scalia, J., dissenting).

© 1989 University of Cincinnati Law Review.
Reproduced with kind permission.

Now, Consider Sin

Given that depression may be the state of being alone, isolated, a solitary individual and suffering as such, consider that such a state of loneliness – if self-imposed –  has the same meaning as sin. As such sin is not so much the violation of a legal category,  but a turning back and into self. It is a violation of the fundamental metaphysical anthropology of being for and with other – of being relation – of being God. And it is not solved by going to the cleaners to get the stain on the surface removed. The remedy can only a turning away from self: conversion from the turn to self.

In this context, consider Pope pre-papal Francis:

“sin properly assumed is the privileged place of personally finding Jesus Christ our Savior, of rediscovering the deep meaning that He has for me. In short, it is the possibility to live the wonder of having been saved.”

Previous pages 120: “There are some who feel righteous who in some way accept the catechism, the Christian faith, but so not have the experience of having been saved. It is one thing for someone to tell you about a boy  who was drowning in the river and someone diving in  to save him; it is another to see it, and yet another if it’s me who is drowning and someone dives into save me… I often say that the only glory we have, as Saint Paul says, is that of being sinners.”

Question: In the end, it winds up an advantage for the believer. (Laughter)

“Well, let’s not forget that the nonbeliever can also benefit from his shortcomings. If an agnostic or an atheist knows he has behaved badly, feels sorry about it, and wants to overcome the situation, he then becomes a better person because of it. In that way, that shortcoming acts as a springboard for his growth. The mayor of a large European city once said that every night he ended his day by examining his conscience. Although he was agnostic, he knew his life had meaning, and he made an effort to correct his behavior. His mistakes helped him become a better person.


Interviewer: That view at least allows one to consider the issue of guilt in the Catholic Church in another way

“Definitely. That’s why, for me sin is not a stain I need to clean. What I musts do is ask for forgiveness and reconcile myself to it, not go to the dry cleaner around the corner. I need to go and find Jesus, who gave His life for me. This is an idea that is quite different from sin. In other words, sin properly assumed is the privileged place of personally finding Jesus Christ our Savior, of rediscovering the deep meaning that He has for me. In short, It is the possibility to live the wonder of having been saved.

Problem: a growing indifference toward religion on the one hand, and a strong search for religion on the other, not always through orthodox ways:

“Exactly. There is a denial of God due to secularization, the selfish egoism of humanity. And there are a thousand ways to search for God that require one to be careful not to fall into a consumer experience or, at its extreme, a kind of ‘immanent transcendence,’ that still does not result in true piety. What happens is that it is more difficult to enter into personal contact with God, a God that waits for me and loves me. The pantheism in the air, like a spray, does not last. At the end of this kind of search we need some kind of idol and we end up adoring a tree or seeing God on a tree.”

Interviewer: It is also true that many people say they believe in God, but not in priests.

“And that’s just fine. Many priests are not worthy of their belief.” (by Ambrogetti and Rubin)


I Got 92 Views on Relation – Antidote to Depression. Now Consider (again) the Power of Affirming Another

Ratzinger: “The root of man’s joy is the harmony he enjoys with himself. He lives in this affirmation. And only one who can accept himself can also accept the thou, can accept the world. The reason why an individual cannot accept the thou, cannot come to terms with him, is that he does not like his own I and, for that reason, cannot accept a thou.


            “Something strange happens here. We have seen that the inability to accept one’s I leads to the inability to accept a thou. But how does one go about affirming, assenting to, one’s I? The answer may perhaps be unexpected: We cannot do so by our own efforts alone. Of ourselves, we cannot come to terms with ourselves. Our I becomes acceptable to us only if it has first become acceptable to another I. We can love ourselves only if we have first been loved by someone else. The life a mother gives to her child is not just physical life, she gives total life when she takes the child’s tears and turns them into smiles. It is only when life has been accepted and is perceived as accepted that it becomes acceptable. Man is that strange creature that needs not just physical birth but also appreciation if he is to subsist. This is the root of the phenomenon known as hospitalism. When the initial harmony of our existence has been rejected, when that psycho-physical oneness has has been ruptured by which the ‘Yes, it is good that you are alive’ sinks, with life itself, deep into the core of the unconscious – then birth itself is interrupted; existence itself is not completely established…. (T)he charism of revolution has been for a long time not just remonstrance against reparable injustices but protestation against existence itself, which has not experienced its acceptance and hence does not know that it is acceptable. If an individual is to accept himself, someone must say to him: ‘It is good that you exist’ – must say it, not with words, but with that act of the entire being that we call love. For it is the way of love to will the other’s existence and, at the same time, to bring that existence forth again. The key to the I lies with the thou; the way to the thou leads through the I.” [Ratzinger: “Principles of Catholic Theology,” Ignatius (1987)  79-81]


* * * * * * * * * * *


Joseph Pieper (Sociologically): In Sartre’s experience, “every human being is in principle alien to every other, who by looking at him threatens to steal the world from him; everyone is a danger to everyone else’s existence, a potential executioner. But fortunately, the creative artist in Sartre, or simply the brilliant observer and describer of human reality, repeatedly rises up against merely intellectual theses. And the artist in him, altogether unconcerned about his own ‘philosophy,’ will then say things like this: ‘This is the basis for the joy of love…: we feel that our existence is justified.’ As may be seen, that is not so very far from the above-mentioned notions of ‘giving existence’ and ‘conferring the right to exist.’ Here, however, the matter is seen not from the lover’s point of view, but from that of the beloved. Obviously, then, it does not suffice us simply to exist; we can do that ‘anyhow.’ What matters to us, beyond mere existence, is the explicit confirmation: It is good that you exist; how wonderful that you are! In other words, what we need over and above sheer existence is: to be loved by another person. That is an astonishing fact when we consider it closely. Being created by God actually does not suffice, it would seem; the fact of creation needs continuation and perfection by the creative power of human love.


“But this seemingly astonishing fact is repeatedly confirmed [Sociologically] by the most palpable experience, of the kind that everyone has day after day. We say that a person ‘blossoms’ when undergoing the experience of being loved; that he becomes wholly himself for the first time; that a ‘new life’ is beginning for him – and so forth. For a child, and to all appearances even for the still unborn child, being loved by the mother is literally the precondition of its own thriving. This material love need not necessarily be ‘materialized’ in specific acts of beneficence. What is at any rate more decisive is that concern and approval which are given from the very core of existence – we need not hesitate to say, which  come from the heart – and which are directed toward the core of existence, the heart, of the child. Only such concern and approval do we call real ‘love.’ The observations of Rene Spitz have become fairly well known. He studied children born in prison and brought up in scarcely comfortable outward conditions by their imprisoned mother. These he compared with other children raised without their mothers, but in well-equipped, hygienically impeccable American infants’ and children’s homes by excellently trained nurses. The result of the comparison is scarcely surprising: in regard to illness, morality and susceptibility to neuroses, the children raised in prison were far better off. Not that the nurses had performed their tasks in a merely routine manner and with ‘cold objectivity.’ But it is simply not enough to able to eat to satiation, not to freeze, to have a roof overhead and everything else that is essential to life. The institutionalized children had all such needs satisfied. They received plenty of ‘milk;’ what was lacking was – the ‘honey.’”  [Pieper’s “Faith , Hope, Love” Ignatius  (174-176).


Psychological Confirmation:


Conrad Baars, M.D.: Emotional Deprivation Disorder: Characteristics: “feelings of inferiority and inadequacy, inability to establish normal rapport with one’s peers and form lasting friendships, feelings of loneliness and insecurity, doubts about one’s self-worth and identity, fear of the adult world, and often deep depressions. Although the energetic among them are able to succeed in business or profession, they fail in their personal lives. If married, they find it impossible to relate in a spontaneous and emotionally satisfying way with spouse and children. In matters of faith, dullness prevails as their feelings cannot participate in their spiritual life. Their religious experience is neither ‘a burden that is light,’ nor ‘a yoke that is sweet.’ Their psychosexual immaturity may express itself in various ways, for instance, in masturbation, pornography, homosexuality, sexual impotence or frigidity…


Cause of EDD: an inadequate feeling of self-worth. And this is the key to it all: “The source of the feeling of self-worth is always another person – the ‘significant other’ – who can either give or withhold it. The process whereby a person receives his or her feeling of self-worth from the ‘significant other’ is for every human being a bonum fundamentale. In a very special relationship with the significant other, the person is seen and experienced by the other as good, worthwhile and lovable. The pleasure of the approving and loving other is perceived in such a manner that the person literally feels this through his or her entire being.[3][4]


Persons Related to by Affirmation: “can be said to have received the gift of themselves. They feel worthwhile, significant and lovable. They possess themselves as man or woman. They know who they are. They are certain of their identity. They love themselves unselfishly. They are open to all that is good and find joy in the same. They are able to affirm all of creation, and as affirmers of all beings are capable o f making others happy and joyful, too. They are largely other-directed. They find joy in being and doing for others. The find joy in their love relationship with their Creator. They can share and give of themselves, be a true friend to others, and feel at ease with persons of both sexes. They are capable of finding happiness in marinate of the freely chosen celibate state of life. They are free from psycho-pathological factors which hamper one’s free will and are therefore sully responsible – morally and legally – for their actions.”[5]


Unaffirmed Persons: “can be said to have been born only once; their second or psychological birth never took place (or, since it is a protracted process, was never complete). They were not made to know and feel their own goodness, worth and identity. They have been thrown back upon themselves by denial on the part of significant others in their life. They are like prisoners – locked in, lonely, and self-centered – waiting fort someone to come and open the door of their prison, waiting to be opened to their own goodness and that of others. No measure of success in business, profession or otherwise can adequately compensate for their feelings of inferiority, inadequacy, uncertainty and insecurity. Both the married life and the celibate life accentuate the fundamental loneliness of these persons and their inability to relate to others as equals. Their spiritual life suffers as time goes on, and their basically joyless way of life changes more and more to a state of depression until death seems the only way out.


            “Most importantly, unaffirmed persons have only one concern and need: to become affirmed, to be loved for who they are and not for what they do. They are literally driven to find someone who truly, unequivocally loves them. This is in marked contrast to affirmed individuals who look for someone with whom they can share their love, who can give love as well as receive, who can wait and are not hurried, driven, or compelled to find someone who will love them. If affirmation by a significant other is not forthcoming, many unaffirmed persons wells use their talents, intelligence and energy to try to convince themselves and the world in a variety of ways that they are worthwhile, important and significant, even though they don’t feel that they are. The most common ways of doing this are by the acquisition, display and use of material goods, wealth, power, fame, honor, status symbols, or sex.”[6]


Homosexuality: “Not Born That Way,” and “Same-Sex Attraction Is Preventable” See handout “Homosexuality and Hope: Statement of the Catholic Medical Association” November 2000. Also Fr. John Harvey, “Homosexuality and the Catholic Church” (Ascension Press) 2007.



[1] J. Ratzinger, “Principles of Catholic Theology” Ignatius (1987) 79-80.

[2] Joseph Pieper, “An Anthology,” Ignatius (1989) 30-31.

[3] Note that John Paul II, writing to Teresa Heydel, remarked: “Everyone… lives, above all, for love. The ability to love authentically, not great intellectual capacity, constitutes the deepest part of a personality. It is no accident that the greatest commandment is to love. Authentic love leads us outside ourselves to affirming others.”  A month later, he wrote: “After many experiences and a lot of thinking, I am convinced that the (objective) starting point of love is the realization that I am needed by another. The person who objectively needs me most is also, for me, objectively, the person I most need. This is a fragment of life’s deep logic… The great achievement is always to see values that others don’t see and to affirm them. The even greater achievement is to bring out of people the values that would perish without us. IN the same way, we bring our values out in ourselves” (G. Weigel, “Witness to Hope” Cliffside Books [1999] 101-102].

[4] C. Baars, “I Will Give Themn a New Heart” St Pauls (2008) 12.

[5] Ibid 190.

[6] Ibid190-191.

The Key Anti-Depressant: The Personal Relation

Johan Hari

You have seen this point over and over on this blog. It is the thread running through all the posts. Its grounding truth is the centrality of God Who is Trinity of Three Divine Persons Who ARE RELATION. That means that they are not “Individual Beings” as we understand “individual” but They are ACTIONS. How else to say this? The best Joseph Ratzinger could do which was decisive for me was to write: “(T)he First Person does not beget the Son in the sense of the act of begetting coming on top of the finished Person; it is the act of begetting, or giving oneself, of streaming forth. It is identical with the act of giving. ONly as this act is it person, and therefore it is not the giver but the act of giving…” [J. Ratzinger, “Introduction to Christianity” Ignatius (1990) 131-132].

Add to that what (again) Ratzinger writes in the context of commenting on the topic of joy: “The root of man’s joy is the harmony he enjoys with himself. He lives in this affirmation. And only one who can accept himself can also accept the thou, can accept the world. The reason why an individual cannot accept the thou, cannot come to terms with him, is that he does not like his own I and, for that reason, cannot accept a thou.”

“Something strange happens here. We have seen that the inability to accept one’s I leads to the inability to accept a thou. But how does one go about affirming, assenting to, one’s I? The answer may perhaps be unexpected. We cannot do so by our own efforts alone. Of ourselves, we cannot come to terms with ourselves. Our I becomes acceptable to us only if it has first become acceptable to another I, We can love ourselves only if we have first been loved by someone else”    [J. Ratzinger, “Principles of Catholic Theology” Ignatius (1982) 79-80].

The point is that we are created in the image and likeness of these Persons, and we cannot be “I” and avoid depression unless we are loved and affirmed by another. A depressed person is a person alone = non-person.

Further thoughts by Gordon Wood on the American Revolution


The point to be made about the American Revolution is the supernatural dimension of it. I say “supernatural” because it was the result of a living experience of 150 years of self-determination and self-giving. Robert Ballah Writes: “America’s myth of origin is a strategic point of departure because the comparative study of religion has found that where a people conceives itself to have started reveals origin in America seems a relatively simple one. Unlike most historic peoples, America as a nation began on a definite dated, July Fourth, 1776. Thus in analyzing America’s myth, cloae attention must be paid to the mythic significance of the Declaration of Independence, which is considerable. Or taking a less precise definition of beginning, one might consider the whole period, from the Declaration of Independence to the inauguration of Washington under the new Constitution, as the origin time of the American nation. America began as the result of series of conscious decisions. The acts embodying those decisions have a knd of absolute omeaning-creating significance. As Hannah Arendt says, ‘What saves the act of beginning from its own arbitrariness is that that it carries its own principle within itself, or, to be more precise, that beginning and principle, principium and principle, are not only related to each, but are coeval. We will want to consider the act of conscious meaning-creation, or conscioustaking responsibility for oneself and one’s society, as a central aspect of America’s myth of origin, an act that, aby the very radicalness of its beginning, a beginning ex nihilo as it were, redolent of the sacred. The sacredness of the Constitution, which is closely bound up with the existence of the American people, derives largely frm that source since ti does not, not explicitly at least (and in this it differs from the Declaration of Independence), call upon any source of sacredness higher than itself and it makers.

               “And yet thos datable acts of beginning, radical though they were, and archetypal for all later reflection about America, were themselves mythi gestures which could not but stir up, at the beginning and later, the images of symbols of earlier myths and mythically interpreted histories.

               “The Deuteronomic formula of the blessing and the curse is John Winthrop’s way (on the deck of the Mayflower)of summing up the meaning of the immense hopes and fears of the colonists in the face of the unknown land that lay ahead. He turned the ocean crossing into a crossing of the Red Sea and the Jordan River and he held out the hope that Massachusetts Bay would be a promised land:

               “There let  us choose life,            

That wee, and our Seede

               Mau live; by obeying his

               Voycoe, and cleaeing to him,

               For hee is our life, and

Our prosperity.”

Returning now to Gordon Wood, I copy: “Amcerican society had been radically an dthoroughly transformed. One class did not overthro another; the poor did not supplant the rich. But social relationships – the way people were connected one to another – were changed, and decisely so, By te  early years of the  nineteenth c. the Revolutoin had created a society fundamentally different from the colonial society of the eighteenth c. It as in fact a new society unlike any that had ever existed anywhere in the world…

               “That reveolutin did more than legally create the United States; it transofmed American society. Because the story of America has turned out the way it has, because the United States in twentieth c. has become the great power that it is, it is difficult , if not impossible , to appreciate and recover fully the insignificant and puny origins of the country. In 1760 America was only a collection of disparate colonies huddled alone a narrow strip of the Atlantic coas t – economically underdeveloped outposts existing on the very edges of the civilized world. The less than two million monarchical subjects who lived in these colonies still took for granted that society was and ought to be a hierarchy of ranks an degrees of dependency and that most people wre bound together by personal ties of one sort or another. Yet scarcely fifty years later these insignificant borderland provinces had become a giant, almost continent-wide republic of nearly ten million egalitarian-minded bustling citizens who not only had thrust themselves into the vanguard of history but had fundamentally altered their society and their social relationships. Fr from remaining monarchical, hierarchy-ridden subjects on the margin of civilization, Americans had become, almost overnight, the most liberal, the most democratic, the most commercially minded, and the most modern people in the world.

               “And this astonishing transformation took palce without industrialization, without urbanization, without railroads, without the aid of any of the great forces we usually invoke to explain ‘modernizaion.’ It was the Revolution that was crucial to this transformation. It was the Revolution, more than any other single event that made Amrica it the most liberal, democratic and modern nation in the world…

               “The American Revolution was not unique; it was only different. Because of this shared Western-wide experience in democratization, it has been argued by more than one historian that the broader social transformation that carried Americans from one century and one kind of society to another was ‘inevitable’ and ‘would have been completed with or without the American Revolution.’

(…)) The Revolution and the social transformation were in fact linked together. The American Revolution was integral to the changes occurring in American society, politics, and culture at the end of 18th c.

               “These changes were radical, and they were extensive… The Revolution made possible the anti-slavery and women’s rights movements of the 19th c. and in fact all our current egalitarian thinking. The Revolution not only radically changed the person and social relationships of people, including the position of women, but also destroyed aristocracy as it had been understood in the Western world for at least two millennia. The Revolution brought respectability and even dominance to ordinary people long held in contempt and gave dignity to their menial labor in a manner unprecedented in history and to a degree not equaled elsewhere in the world. The Revolution brought respectability and even dominance to ordinary people long held in contempt and gave dignity to their menial labor in a manner unprecedented in history and to a degree not equaled elsewhere in the world. The Revolution did not just eliminate monarchy and created republics; it actually reconstituted what American meant by public or state power and brought about an entirely new kind of popular politics and a new kind of democratic officeholder. The Revolution not only changed the culture of Americans – making over their art, architecture, and iconography – but even altered their understanding of history, knowledge, and truth. Most important, it made the interests and prosperity of ordinary people –their pursuits of happiness –the goal of society and government. The Revolution did not merely create a political and legal environment conducive to economic expansion; it also released powerful popular entrepreneurial and commercial energies[1] that few realized existed and transformed the economic landscape of the country. In short, the Revolution was the most radical and most far-reaching event in American history”[2]

               Keep in mind, the Revolution in America is the exuberance of personhood achieved not by ideas but by the 150 year Christian experience of getting out of self and service to others. It’s creed isthe Declaration of Independence.

[1] Could the South African Elon Musk propose, risk and actually execute what he is not doing entrepreneurially anywhere else but in the United States.

[2] Gordon S. Wood, “The Creation of the American  Republic 1776 -1787”  Introduction.

Like is Known by Like

I was just at a wake for a 13 year old girl this afternoon. She died 6/23 of a brain tumor. The mother was distraught, Italian, and even beyond distraught. She moved away from me quickly when I told her she was really crying for herself and that there is a reason for this which is a great good. End of conversation.

I recall the opener to a religious talk about the Minister, the Rabbi, and the Priest; the three of them discussing if they had to hide God where they would put Him. The Rabbi and the Minister alternated between beyond the stars and the bottom of the sea. The Priest suggested  that he would put Him right out in the open as He was in Nazareth or the public plazas of Israel.

My point is that the woman couldn’t see it, and I didn’t help with my straightforwardness. I tried  to explain my angle But the point really is that you can’t see what you don’t re-cognize. If you don’t have something of what you are looking for, you  can’t see it. And if you don’t have the experience of time to see how things play out, you don’t see that there is a deep love involved at the bottom and root of the apparently bad and terrible things that have happened. If you don’t have that experience, you don’t see that He is right in front of you. That’s why it’s very important when you are looking for something, to exercise your imagination/memory and have the picture of the thing in front of you, or being blind, to remember.

Being obedient to the late Cardinal Francis George (who was being obedient to John Paul II, Bp Robert Barron set out to serve in the re-evangelization of the culture. Therefore, he wrote, “I have tended to begin my work by presenting features of the high or low culture that, sometimes faintly and sometimes powerfully, echo the gospel message. Mons. Robert Sokolowski, who taught me many years ago at Catholic University , shared an image that has long stayed in my mind. The integrated icon of Christian doctrine, he said, exploded at the time of the Reformation and the Enlightenment, and its charred and distorted fragments have landed here and there, littering the contemporary cultural environment. Accordingly, we are not going to find, at least very often, the whole Catholic thing on beautiful display, but we are indeed going to find bits and pieces of it practically everywhere, provided we have the eyes to see. If we exercise our analogical imagination, we can see “images of Jesus in Superman, Spider-Man, and Andy Dufresne, etc. The whole of Francis’ “Laudato Si” is this: “The universe unfolds in God, who fills it completely Hence, there is a mystical meaning to be found in a leaf, in a mountain trail, in a dewdrop, in a poor person’s face. The ideal is not only to pass from the exterior to the interior to discover the action of God in the soul, but also to discover God in all things;” “when the wind blows, the trees sway, water flows, flies buzz, doors creak, birds sing, or in the sound of strings, the sighes of the sick, the groans of the afflicted.”[1]

Again, it reminds me of Bp Barron’s rabbit-duck icon depending on which angle you sighted it, or a joke in the New Yorker. You see and understand all the elements of the joke and you are looking directly at the icon, but you see a rabbit; If you sight it from a different angle, a duck.

I would say that the operative principle is: Like is known by like!! Only God knows God.

[1] “Laudato ‘Si” #!5 and ftn. 159.

“But what do we mean by the American Revolution?

“What do we mean by the American Revolution? Do we mean the American war? The Revollution was effected before the war commenced. The Revolution was in the minds and hearts of the people.” – John Adams


Here is the heart of the Revolution::

The Boston Massacre, known as the Incident on King Street by the British,[2] was an incident on March 5, 1770, in which British Army soldiers shot and killed several people while under attack by a mob. The incident was heavily publicized by leading Patriots, such as Paul Revere and Samuel Adams, to encourage rebellion against the British authorities.[3][4][5]British troops had been stationed in Boston, capital of the Province of Massachusetts Bay, since 1768 in order to protect and support crown-appointed colonial officials attempting to enforce unpopular Parliamentary legislation. Amid ongoing tense relations between the population and the soldiers, a mob formed around a British sentry, who was subjected to verbal abuse and harassment. He was eventually supported by eight additional soldiers, who were subjected to verbal threats and repeatedly hit by clubs, stones and snowballs. They fired into the crowd, without orders, instantly killing three people and wounding others. Two more people died later of wounds sustained in the incident.

The crowd eventually dispersed after Acting Governor Thomas Hutchinson promised an inquiry, but the crowd re-formed the next day, prompting the withdrawal of the troops to Castle Island. Eight soldiers, one officer, and four civilians were arrested and charged with murder. Defended by lawyer and future American president John Adams, six of the soldiers were acquitted, while the other two were convicted of manslaughter and given reduced sentences. The men found guilty of manslaughter were sentenced to branding on their hand. Depictions, reports, and propaganda about the event, notably the colored engraving produced by Paul Revere (shown at top-right), further heightened tensions throughout the Thirteen Colonies.


The American John Adams was the lawyer for the British soldiers. He argued the case in light of the facts, appealed to the exoneration, and won. In the same vein, he argued the independence of the United States from Britain. The reveolution was the arguing and exaltation of the truth of the dignity of the human person. That was the American Revolution.