The Problem with Rights (Part I)

Once again, I have been writing about the theme of social justice as the right ordering of human society. I began with the centrality of right religion, the religion of the Mass, passed on to the right order of marriage and family, and then I wrote something also about work, private property, and the environment. Last Sunday, as I began to write about the role of government I entered into the practical realm of politics and the upcoming elections. Now it is time to return to the theoretical level and write about the proper order of government and its relationship to the realization, insofar as it is possible in this world, of social justice.

Nevertheless, I want to start with a practical problem that has become endemic in our society: the problem of rights. I will consider our three basic first amendment rights: freedom of religion, freedom of speech, and freedom of assembly.

The problem is this: the good of peaceful human society requires that these rights be limited in some way. Freedom of religion should not allow the practice of Satanism. Freedom of speech should not allow pornography. Freedom of assembly should not allow riots.

Our Constitution as such does not provide for any principle of limitation, though actual Supreme Court jurisprudence has given us a complex history of precedents that provide some such principles. I am by no means an expert in constitutional law, but I expect a serious study of precedents would uncover numerous contradictions of principles.

Still, contradictory or not, these principles must have come from somewhere? Where? In general, these principles have come from the culture that formed the minds and attitudes of the Justices themselves. That means that the Constitution effectively has been interpreted by unwritten cultural assumptions that stand outside the Constitution itself.

I would suggest that until about 1925 the unwritten cultural assumptions in the United States were largely governed by a sort of generic Protestant mentality and understanding of morality. 1925 is significant because it is the year of the famous “Scopes Monkey Trial” in Tennessee in which a teacher, John Thomas Scopes, was tried for teaching evolution in public school, contrary to a State statute. The case was argued by two of the most famous lawyers in the country, William Jennings Bryan and Clarence Darrow. Scopes was convicted and fined, but the conviction was overturned by the Tennessee Supreme Court on a technicality. The real significance of the trial, however, is that it firmly established the myth of the conflict between faith and science, while at the same time marked the beginning of the ascendancy of science of faith in American culture.

The decline of faith in public life became firmly established in two Supreme Court cases of the early 1960s. The first was the 1962 decision in Engels v. Vitale, which forbad the recitation of an official state-sponsored prayer in public school. The second was the 1963 decision in Abington School District v. Schempp, which forbad the recitation of the Lord’s Prayer and the corporate reading of the Bible in public school. Those decisions effectively secularized American public life marking the transition from limiting and defining rights from a generic Protestant mentality to limiting and defining rights from the basis of a supposedly neutral secular mindset.

We can consider the practical effect of this change first in the realm of religion. The Mormon religion was persecuted in the United States, for which reason Brigham Young led the Mormons to the Salt Lake Valley of Utah in 1846. While he would be named Governor of the Utah territory, Utah was only admitted as a State when the Mormons agreed to abandon the practice of polygamy. The Mormon experience shows how the Protestant cultural mentality effectively limited the practice of religious freedom.

The Protestant cultural mentality also led to the persecution and exclusion of Catholics and Jews, though both groups succeeded in carving out a place for themselves in American life, that nevertheless came at a cost of compromise of principle. This was most manifest in the election of John F. Kennedy. The Protestant opposition to the Kennedy candidacy was so great that on September 12, 1960, less than two months before the election, Kennedy made a special address to the Greater Houston Ministerial Association effectively promising that there would never be a meeting between his faith and his public policy. The Kennedy promise lay the groundwork for numerous Catholic politicians to follow suit with the infamous declaration, “I am personally opposed to abortion, but I cannot impose my faith on the country.”

Nevertheless, with the secular turn of the cultural mentality, the door has been opened to the religious practice of Scientology, Wicca, and Satanism. At the same time, Hinduism, Buddhism, and Islam, have all received widespread cultural acceptance to the point that adherents of each of these religions have been elected to the US Congress.

The secular turn of culture has opened the door for radical religious pluralism, while working to exclude the public influence of traditional forms of Christianity. (To be continued)

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Fr. Joseph Levine graduated from Thomas Aquinas College and after a long journey was ordained to the priesthood for the Diocese of Baker, Oregon. He currently serves as pastor of St. Peter Catholic Church in The Dalles on the Columbia River.