April Letters

Salad Bowl Religion

As a former student of Professor Jon D. Levenson’s and an ordained Orthodox rabbi, I should be the last person to take serious issue with his thought-provoking piece on “The Problem with Salad Bowl Religion” (December 1997). But I do. First, there is the fundamental philosophical issue that at some very basic level all decisions of religious practice are personal, especially at the end of the twentieth century, when there exist no structures, social or political, that compel religious observance. That fact is shared by us all, regardless of the commitments that we make and the communities that we join. The most traditional of us, the most other-obligated, those most committed to heteronomous norms, choose those positions for ourselves. In that sense, the self is at the center for all of us, however our spiritual journeys are structured. If this is so for religious practice, how much the more so for religious beliefs. As Prof. Levenson well knows, Jewish tradition is deeply divided as to whether or not belief can ever be reached through any but the most personal and self-centered processes. That is the basis for the millennia-old debate among Jewish exegetes about the first of the Ten Commandments-if it is about faith, we question if faith can ever be commanded by an external source. The fact that the self lies at the center ought not be surprising given the biblical account of each human being as created in the image of God. In such a system, “selves” are of infinite value, and personal choices should never be described as “mere.” In fact, I would argue that to live in our age, an age in which individuals define communities at least as much as communities define individuals, is a remarkable blessing. That is not to suggest that such circumstances do not present real questions about the nature and content of contemporary religious commitments and communities. I even share some of Prof. Levenson’s critiques of the current intensely creative/syncretistic impulses in the American religious community. I would suggest, however, that questioning the authenticity or legitimacy of such impulses is not the most appropriate posture to take. In fact, those of us most closely identified with “traditional” beliefs, practices, and communities ought to be learning from the so-called syncretists, if not from their answers, then at least from their questions. Who more than they are actively involved in the ongoing struggle that lies at the heart of a highly developed spiritual identity? Who more than we run the risk of ossifying religious tradition, of turning sources of life into empty symbols? It is those of us most convinced of the authenticity of our conclusions who should question them the most closely. A religious landscape in which questions replace critique and learning replaces suspicion would serve us all well. While Prof. Levenson would construct a bulwark against the dissolution of religious commitments in the face of “inconvenience, monetary loss, and personal anguish,” I would suggest that we create wellsprings of religious vitality that would inspire commitments that could weather such intense challenges. At the same time, I would ask Prof. Levenson to recall that each of these exact categories has been traditionally employed by rabbinic legal decisors to abrogate specific laws and practices at different times in Jewish history. We short-change our various religious traditions when we assume that creativity and compassion may not be commensurate with commitment. In short, I would suggest that we question what is in our salad bowl far more acutely than we question what is in theirs.

(Rabbi) Brad Hirschfield
Center for Jewish Learning and Leadership
New York, NY

In his “The Problem With Salad Bowl Religion” Jon D. Levenson seems to confuse ritual with sacrament. Celebration of the Holy Eucharist is neither validated nor invalidated by “the larger structure of norms, including norms of faith and authority, that give a ritual its meaning,” but by the presence of the Risen Lord made known to us in the breaking of the bread. In his example of “a minister from a liberal Protestant denomination” who may have been “only impersonating someone taking communion,” I feel Levenson makes a second serious error by categorizing his subjects. There are many members of “liberal” Protestant denominations who are very orthodox. I am one of those, an orthodox Episcopalian (not an oxymoron!). That’s why I love First Things-> www.firstthings.com . I have experienced the Real Presence of Jesus Christ at Eucharist at a Trappist monastery. The abbot there-and probably the one in Levenson’s example-knew what he was doing. That experience changed me forever (perhaps eternally). Levenson may do better confining his opinions on spiritual matters to those with which he has had personal experience. He may also need to sharpen his understanding of the Holy Sacraments.

John H. Knelson
Morehead City, NC

Jon D. Levenson replies:

Brad Hirschfield, the Orthodox rabbi trying to defend religious syncretism without advocating it, has sold his birthright for a pottage of lentils. He has traded a system of objective norms binding a theocentric community to the service of its God for a theology of amorphous personal spirituality and radical individualism in which “the self lies at the center.” His claim that “all decisions of religious practice are personal” is simplistic and makes the mistake for which I criticized the Jewish woman who is the Unitarian moderator: it confuses the empirical with the normative. Not prepared to surrender the status of being “other-obligated” and of standing among those “most committed to heteronomous norms” (which would entail surrendering his claim still to be Orthodox), Rabbi Hirschfield invokes rabbinic law in support of his extremely non-rabbinic spiritual libertarianism. The results are not pretty, for the two positions do not mix. It is one thing for “rabbinic legal decisors to abrogate specific laws and practices at different times in Jewish history”; it is quite another thing to say, as those decisors never did, that Jewish beliefs and laws have no more claim upon a Jew’s life than those of other traditions. Rabbi Hirschfield’s impression that the syncretists are the most “actively involved in the ongoing struggle that lies at the heart of a highly developed spiritual identity” is quite wrong. By tossing a religious salad instead of sorting out the pressing questions of faith, authority, and identity, they are avoiding some of the most difficult challenges of pluralism. I am sure Rabbi Hirschfield would never countenance a Jew’s having a Christmas tree alongside his menorah. He needs to ask himself why and to affirm a theology worthy of his practice. In one breath, John H. Knelson faults me for stressing the indispensability of “norms of faith and authority” in defining a ritual act. In the next, he insists that his participation in a Roman Catholic communion service was legitimate because he is an orthodox Anglican. The liberal Protestant minister in my anecdote, however, is not orthodox or even trinitarian. Perhaps I should have said so. Paragraph 1401 of the Catechism of the Catholic Church reads: “When, in the Ordinary’s judgment, a grave necessity arises, Catholic ministers may give the sacraments of Eucharist, Penance, and Anointing of the Sick to other Christians not in full communion with the Catholic Church, who ask for them of their own will, provided they give evidence of holding the Catholic faith regarding these sacraments and possess the required dispositions.” I neither faulted nor defended the norm that requires non-Catholic Christians to “give evidence of holding the Catholic faith regarding these sacraments” if they wish (and then only in a situation of “grave necessity”) to participate in the Eucharist. Rather, I drew attention to the very existence of the rule and pointed out that those who obey it are different from those who do not. The abbot in my anecdote falls in the latter category. Rereading my piece, I fail to see how anyone could ascribe to me the belief that according to Catholic teaching, no situation can ever arise in which a Protestant may legitimately take communion in a Catholic church or that the efficacy of the sacrament depends on the disposition of the recipient. If I gave another impression, I apologize. Excising Infanticide

James Nuechterlein’s analysis of Steven Pinker’s “Why They Kill Their Newborns” (“Infanticide for Beginners,” January) makes a good point. Pinker’s use of evolutionary theory to justify certain social policies that affect our treatment of children is potentially dangerous and misleading. Those who accept Pinker’s speculations should be informed that evolutionary biology is not an isolated science. It has strong empirical and conceptual connections to all scientific disciplines dealing with living organisms, including embryology as well as child or human development. The vast majority of scientific texts in child development have at least one chapter on prenatal growth followed by a chapter on the birth process and the life of the neonate. No author of any child development text (I have read at least eighty or ninety over three-plus decades) ever states that at birth the fetus changes from being a form of nonhuman life to human life. It would be absurd to do so. Continuity from the zygote to the fetus to the neonate to the young child, etc. is self-evident. That is what development is all about. No discontinuities, no Pinker “milestones.” Milestones are only working contrivances that have no empirical validity. The theory that natural selection predisposes mothers to weigh the resource cost/benefit of rearing children is the same theory that posits that mothers are predisposed by natural selection to keep and nurture babies-often even when their babies are severely handicapped. Which variant of the theory should we choose? So far the theory cannot tell us. Pinker still needs a course or two on child development, if not frog embryology. His extrapolation of personal opinions to “scientific” definitions of humanness by way of evolutionary theory damages the public image of a theory that is actually very useful in helping scientists do good science.

William Charlesworth
Institute of Child Development
University of Minnesota Minneapolis, MN

As the old saw has it, life imitates art. I refer to James Nuechterlein’s “Infanticide for Beginners.” Steven Pinker’s call for “understanding” parents who kill their newborns immediately put me in mind of the late Walker Percy’s 1987 dystopic novel, The Thanatos Syndrome. Set in the near future, it projects a “culture of death” in which, among other “principles,” true human life begins at approximately eighteen months-the age at which an individual begins to exhibit Pinker’s “morally significant qualities.” Proto-humans who have not reached that milestone are legally disposable. Mr. Pinker’s fascination with mice is certainly appropriate. There is something rodent-like about his “morality.”

Arthur R Glass
Hillside, NJ

I am afraid James Nuechterlein gave Steven Pinker too much credit in “Infanticide for Beginners.” When I read Professor Pinker’s “Why They Kill Their Newborns” in the New York Times Magazine (November 2, 1997), it was clear to me that his basic point was that a newborn baby does not qualify as a person any more than a mouse does, and therefore throwing one in a dumpster is no more immoral than setting a mouse trap. True, Prof. Pinker said at the beginning of his article that killing a baby is an immoral act, but then, as Mr. Nuechterlein points out, his whole analysis leads to the exact opposite conclusion. Unlike Mr. Nuechterlein, who believes that Prof. Pinker stopped short of actually advocating infanticide, I believe his only purpose in writing the article was to do just that, and his hollow disclaimer was simply a tactical maneuver allowing him to keep a line of retreat open in case his foray into infanticide apologetics blew up in his face . . . .

(Rep.) Barry K. Arrington
Colorado House of Representatives
Denver, CO

Beyond Babel

This letter is in reference to Professor Steven D. Smith’s article, “The Constitution of Babel” (January). I am in complete agreement and sympathy with Professor Smith’s remarks that the decisions of the U.S. Supreme Court today are “intellectually incoherent” and no longer interesting or profitable to follow in any doctrinal sense. This has actually been true for some time and is not a recent development. I am in less agreement, however, with the reasons assigned by the professor for this dissolution of what was once a coherent subject matter. Instead, I would assign blame to a multitude of flaws that have their origin in the method by which law is taught in American law schools (and has been taught for several decades), and in the conception of what law is and what it is all about. 1. A confusion of law and public policy. The distinctive feature of law and legal analysis, like that of any science, is its method, what H. L. A. Hart (in The Concept of Law, 1961) calls “rules of recognition.” These are rules that determine which of the many rules that might apply to a given situation are authoritative because they come from a law-giving source and therefore govern it. Once the appropriate rules are determined, they usually govern the outcome of the controversy and prevent law from becoming arbitrary and unstable. Public policy, on the other hand, merely requires for its method a guiding morality and a good sense of what is politically possible and expedient, given the interests involved. The utilitarianism of most modern moralities provides few restrictions on the direction moral arguments can take, and therefore provides little guidance for public policy reasoning. In my time in law school (the 1950s), we were taught that law changed as public policy changed; indeed, it was just another method of implementing public policy. This is not to say that the present or past Supreme Court has applied no “rules of recognition” at all in formulating majority decisions. The methods they employed and currently employ were described by Justice Benjamin Cardozo in a series of lectures he gave at Yale Law School in 1921 (long before he was appointed to the Court ) and later published as The Nature of the Judicial Process under the headings: the method of philosophy (which essentially relies on precedent and logic and, in the case of legislation, on attributing customary or technical meanings to words and grammatical constructions as the context dictates) and the method of history, tradition, and sociology (which attempts to discern a continuous thread of public policy running through past cases and legislation that must be adapted by the Court to new and changing situations as the public need requires). The trouble is that neither method is followed consistently in American courts. Whichever is more likely to lead to the desired and predetermined result is usually the one chosen. Sometimes, both rules of recognition are employed in the same majority decision, which results in the frequent confusion and incoherence that so many scholars have noted. 2. The way opinions are written . Another cause of incoherence is the literary pretension of the Justices, their desire to be the authors of “great opinions.” The outcome, unfortunately, is bloated, expansive, pompous rhetoric, which may sound fine in a college commencement address, but causes havoc and confusion among those who must struggle to make sense of what it actually imports in the limited context in which the controversy was presented to the Court. Since most of the opinions are mercifully forgettable as literary compositions, it would be better for all if the opinions were phrased in the somewhat mechanical and formulaic style of Civil Law judicial decisions: a lot of whereas clauses to establish the necessary premises and a single therefore clause to nail down the final conclusion, all done in one page, or two at the most. 3. Too many concurring and dissenting opinions . As things now stand, it is very difficult to decide which opinion counts as the law of the case, its precedental principle. Is it the plurality opinion or one of its concurring opinions? I would imagine that these days constitutional scholars spend a good part of their time counting votes for a proposition and guessing where they will all come down when the same issue is next presented to the Court. It would be better if, like juries in criminal cases, the Justices were forced to come to some sort of agreement and express their decisions as per curiam decisions, with perhaps one dissenting view allowed if unanimity is impossible. Then, perhaps, there would be fewer prima donnas on the Court. Maybe, if the above suggestions were enforced, constitutional law would become as boring a legal subdiscipline as taxation or trusts and estates, and many constitutional scholars would leave for pleasanter pastures, but at least the law would be restored to what it is supposed to be-a useful social tool-and not the revealed wisdom of a pantheon of semi-deities.

Barton L. Ingraham
Santa Fe, NM

In place of “The Constitution of Babel,” Prof. Steven D. Smith offers up “The Constitution of Conundrum.” According to Prof. Smith, the American constitutional system is caught between the inscrutability of providence and the futility of fate from which there is “No Exit.” Rather than choose the atheistic despair of Jean-Paul Sartre, however, Prof. Smith prefers the religious hope of Reinhold Niebuhr that somehow man can make sense of the “riddle” of constitutional law, if he will only humble himself and turn away from his “pride of reason.” At best, Prof. Smith’s solution to today’s constitutional malaise calls for a kind of pious judicial and professorial self-restraint. While this might save us from pompous pronouncements of judicial supremacy, like those emanating from the plurality opinion in Planned Parenthood v. Casey , it does nothing to restore the rule of law to the American republic. But, then, according to Prof. Smith, any effort to restore true law would be an exercise in futility because there is no room in “modern thinking” for a “divinely instituted natural order” as “America’s founding generation” believed there to be . . . . Throughout his essay, Prof. Smith insists that our current constitutional problems may be traced back to the founders’ faith in the “autonomy” of man’s reason in “the constitutional project.” Sprinkling his piece with isolated quotes from Alexander Hamilton, Thomas Jefferson, and James Wilson, he claims that America’s founders “rejected the received ways of understanding of [the providential] order-tradition, authority, revelation, scripture-in favor of trusting in fresh human intellect.” This is simply not true. In the Declaration of Independence, the nation’s charter, Jefferson and his compatriots rested their case for independence upon “the laws of nature, and of nature’s God.” These terms were not new, freshly minted by revolutionaries “rebelling” against “tradition, authority, revelation, and scripture.” To the contrary, they were well known common law terms found in Sir William Blackstone’s Commentaries on the Laws of England . The “law of nature,” Blackstone wrote, was God’s will revealed in nature, and the “law of God” was God’s will revealed in the “Holy Scriptures.” Had America’s founders sought to elevate their reason over God’s revelation, they could have chosen a different term, “natural law.” For, as Blackstone stated, natural law is “what, by the assistance of human reason, we imagine . . . [the law of nature and of the Holy Scriptures] to be.” But Jefferson and his colleagues chose, instead, the actual laws of God, which were, as Blackstone wrote, “binding over all the globe, in all countries, and at all times.” Not only did Jefferson rely upon God’s revealed law, he relied upon God’s revealed truth. Thus, he wrote: “We hold these truths to be self-evident,” not we hold these truths to be “reasonable.” For a truth to be self-evident, it cannot be based upon man’s finite “reason,” but must be based upon a God-imposed truth in the mind of every man. By endorsing the self-evident truths of divine creation, equality, life, liberty, and the pursuit of happiness, America’s founders chose the biblical epistemology of the Apostle Paul (Romans 1:18-20), not the “self-creation” aphorism of René Descartes . . . . Because of America’s founding faith in Divine Providence, the people confidently believed that God in His mercy and grace would make it possible for finite and fallen man to discover His laws and to build a civil order upon those laws. That confidence, in turn, was based upon the common law tradition expounded by Blackstone, who testified that after the fall of man, “Divine Providence . . . in compassion to the frailty, the imperfection, and the blindness of human reason hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation.” . . . Until this nation and her leaders return to the humility of our first President and Congress, and to the Constitution as it is written, they will labor in vain to escape the confusion that Prof. Smith so rightfully deplores.

Herbert W. Titus
Chesapeake, VA

Steven D. Smith replies:

Barton L. Ingraham and Herbert W. Titus both make valuable points with which I agree. In particular, I think it is true that the “modern moralities” that pervade current public policy provide no satisfactory guidance, as Mr. Ingraham points out, and that the political and legal ideas of the American founders were firmly grounded in their commitment to “the laws of nature, and of nature’s God,” as Mr. Titus argues. In fact, these points are intimately related: The unmoored quality of modern moral thought is due in large measure to the loss of belief, within our governing sectors, in a providential order of nature. Much of the book from which my essay was taken is devoted to exploring that profoundly disorienting development and its consequences for constitutional law. I confess to being skeptical about the prospect, expressed in different ways by both Messrs. Titus and Ingraham, of redeeming constitutional law by “restor[ing] the rule of law to the American republic,” perhaps by a more consistent adherence to some particular “rule of recognition.” That sort of “rule of law” vision is familiar and attractive, but our experience gives us scant reason to suppose that it is realizable. We will do better, I suspect, to cultivate the virtue of humility-”a kind of pious judicial and professorial self-restraint,” as Mr. Titus somewhat disdainfully puts it-than to look for political salvation in any jurisprudential method or formula that would purport to tell us how the Constitution should be interpreted or when the judiciary has overstepped its bounds. Nothing Intelligent?

Intelligent people certainly disagree on many and varied things. One’s perspective may incline one to see a glass as half empty where others will see it as half full. My perspective sees Nothing Sacred (John J. Reilly, “Intelligent Television,” January) as not only half full, but full of good writing, humor, poetry, and top-notch acting. I’m not alone in this. Kevin Anderson (Father Ray) recently received a Golden Globe nomination for Best Actor in a dramatic television series. A survey of over fifty media critics across the United States rated Nothing Sacred #6 out of a field of over 100 shows. (Granted, the field of competition is pretty dismal.) In a separate survey done by Viewers for Quality Television, the show was rated even higher. The members of that organization voted Nothing Sacred #1 in four categories: best drama, best writing, best actor, most interesting new character . . . . Of the dozens of Catholics I’ve talked with about the show everyone, without exception, has been deeply moved by it. They can’t believe that something this good is actually on commercial television. Maybe I’m associating with the wrong people or maybe we’re just birds of a feather, but this is a remarkable consensus. I believe that a deliberate half-truth is not honest. The writers of First Things have consistently and sarcastically lambasted this show. It has been misquoted and half-truths told of certain episodes. To see nothing good about the show is not honest or balanced criticism. If along with the awareness of its faults you cannot find anything intelligent, poetic, or inspiring about this drama, then you are seeing the glass as half empty. You may even consider the glass completely empty. But, then, isn’t our perception of reality a reflection of our own heart?

Catherine Stepanek
Minnetrista, MN

In Defense of the Archbishop

Richard John Neuhaus’ mention of Dr. George Carey, Archbishop of Canterbury, in the December 1997 Public Square should not pass without comment. Dr. Carey may have inconsistent views of the right of remarriage of the nominal head of the Anglican Church and its bishops, but he has his theology right. He has consistently stood for the orthodox faith since his appointment. When he was appointed by the Queen, it was a surprise to all observers since he was comparatively unknown. One of the English tabloids proclaimed in a headline, “Anglicans Choose Christian As Leader.” He was a refreshing change from leaders, such as some of our Canadian bishops, who emphasize liberal social positions rather than a faith that seeks to change the human condition by Christ’s redemptive work. It should also be noted that Carey has been archbishop for less than ten years; bishops and priests have been divorcing and remarrying for decades. One can hardly expect the clock to be turned back in this area when the Church faces other challenges . . . .

E. A. Marshall
Edmonton, Alberta
Canada

Defending Promise Keepers

I am concerned at Richard John Neuhaus’ rather terse remark in The Public Square (January) about Promise Keepers. Florence King’s remarks I dismissed easily enough. After all, what else could she say and keep her label as misanthrope? But Fr. Neuhaus’ comment disturbed me. “The Zeitgeist embraced in the name of Jesus is still the Zeitgeist.” I lay no claim to Hegelian expertise and I’m not absolutely sure of the pure meaning of Zeitgeist. In the context of Fr. Neuhaus’ remarks it seems to mean, at the least, a trend of the times. My impression is that Fr. Neuhaus has relegated this movement to a somewhat superficial Christianization of a current fad, perhaps with its roots in Iron John . Personally acquainted with men and families transformed by Promise Keepers, I am disappointed with Fr. Neuhaus’ apparent support of Ms. King’s evaluation. Even such a mild denigration as his smacks of elitism and potential divisiveness. The suggestion that Bill McCartney and others associated with him might be naive followers of emotional fads is disturbing. It is also a reflection on the validity of the spiritual and psychological stability of the movement as well as that of a large section of the Christian male population of the U.S . . . .

Cal Williams
Genoa, IL

RJN replies:

The comment was not intended as “support” for Florence King’s evaluation, although her evaluation should not be casually dismissed. I intended to indicate simply that a certain skepticism toward the “spirit of the time” is always in order, even as we recognize that effective communication cannot help but engage the spirit of the time.