A Pot Pourri . . . The Dark Forest, Constitutionalism, And Other Matters
By GEORGE A. KENDALL
I got thinking recently about the opening Canto of Dante’s Inferno, where the poet finds himself lost in a dark forest. He tries to find the way and eventually comes to a hill which he tries to ascend, but is always stopped by ferocious animals, symbols of his sins. At last the Roman poet Virgil comes to meet him, and guides him, not only to the top of the hill, but from thence through Hell and Purgatory, till they reach the gates of Heaven, where his beloved Beatrice becomes his guide.
Not long ago, I realized all of a sudden how closely Dante’s account parallels my own journey back to the Church. I left as an undergraduate for mostly preposterous reasons, like an infatuation with liberal theology (Tillich, et al.), and a desire to be respected by the “intellectuals” on campus (I have since come to detest the use of this word as a noun). My years of apostasy were a time of deep darkness, with all kinds of moral, intellectual, and spiritual confusion and spells of depression, very much comparable to Dante’s dark forest.
And then, along came C.S. Lewis, whose apologetic writings I began to read, and that was when the light began to shine in the darkness that enveloped me. His clarity, his wit (“It is easier to pray for a bore than to go and see him”), his sense of the Light which is the center and source of all things, his vision of a creation which is filled with light, were refreshing to say the least, especially after some of the German thinkers I had read (or tried to read). There was an experience like being in a dark prison and realizing that there was no need to remain there, that all you had to do was get up and walk out into light and freedom. So I am convinced that C.S. Lewis led me out of my own dark forest just as surely as Virgil led Dante out of his. Praise be to Jesus Christ!
And now, in this annus horribilis we are suffering through, we find our whole world wandering lost in a very, very dark and tangled forest of our own making (with a lot of help from the Evil One). It is, humanly speaking, impossible to see any way out, but with God, all things are possible. Who will guide us out? Only Christ, with His Blessed Mother, can accomplish that. Deus, in adjutorium nostrum intende.
C.S. Lewis, pray for us.
- + + Some pundits on the right have been using the term “soft totalitarianism” to characterize the kind of regime they expect will (perhaps soon) be replacing the American republic. Their expectation is that the new form of totalitarianism will not find it necessary to employ tactics like mass executions, forced labor camps, artificial famines, and so on to control people, unlike their counterparts in Russia, China, and Germany.
Instead, they will use various forms of psychological manipulation, drugs, entertainment (bread and circuses). We will enjoy having our humanity taken away from us. It will be something you could call “feel-good” totalitarianism, a regime comparable to the one depicted in Huxley’s Brave New World. An interesting speculation, but one lacking a connection to reality.
In 1965 (I think) I sat in on a lecture at Notre Dame by Eric Voegelin. One thing he said, speaking of totalitarian ideologues, has always stuck with me: “These men like to kill people.”
Now, totalitarian ideologies are, I am convinced, the principal product of the so-called Enlightenment. During the nineteenth century, there were two men who understood the Enlightenment better than anyone — Dostoyevsky and Nietzsche. Both understood that it was about murder — the murder of God and the murder of mankind. What better way could there be to usurp divinity, to put yourself in the place of God (if such a thing were possible), than to claim the right of life and death over others, then to exercise that “right” on a huge scale?
And so, mass murder is not merely a means used by totalitarian ideologues to get and keep power, it is the whole point of the thing. Murder is what totalitarian regimes are all about. They love it. That means that soft totalitarianism is a figment of the imagination. It may start out that way, but sooner or later the killing will start, and the results will look a lot more like Orwell’s 1984 than Brave New World. Get ready. - + + I admit to not feeling much reassured when I hear that a “conservative” nominee to the Supreme Court is a strict “constitutionalist” or “constructionist” who will make his or her decisions strictly on the existing law, including longstanding precedents, without factoring in his or her personal beliefs or preferences. This is what is called legal positivism, which holds that there is nothing beyond the human law by which it may be judged, no way to judge that a law is unjust. The only way we can judge that a law is unlawful and hence not binding on us is to find that when it was made, the lawmakers failed to follow the rules embedded in the law for the enactment of laws. So, for instance, if a particular law requires a two-thirds majority in Congress and failed to meet that requirement, it might be overturned. But it cannot be nullified simply because it is unjust.
Now, is the natural law merely a preference, a subjective “value” with no objective reality? Of course not. The natural law is the order of creation, grounded in the loving will of the Creator. It is the very structure of reality. Now human law, whose function is to rightly order human reality, including the state and the social order, the right relationships among human beings, must order these things in accordance with this structure of reality, which means in accordance with the natural law. Otherwise, law is arbitrary and justice is only “the right of the stronger” — the sociopath’s idea of law.
So the genuine constitutionalist judge should not reject a law or a precedent because he dislikes it but should reject it because he finds that it is contrary to the natural law, i.e., to reality. But our courts have not been doing things that way for a long time. Nearly half a century ago, our Supreme Court legalized abortion, an act egregiously contrary to the natural law, condemning tens of millions of human infants to death.
Since then, it has been challenged repeatedly by new lawsuits aimed at getting the court to overturn it. All have failed, because invariably the court, with the collaboration of “conservative” appointees, falls back on the doctrine of stare decisis, according to which you respect precedents unless there is a very compelling reason to overturn them, and the court has so far been unable to find such a reason (if 60 million dead babies isn’t compelling, what is?).
Yes, we need constitutionalists, but ones capable of exercising the kind of simple common sense shown by Justice Thomas, when he said, in regard to the abortion cases, that all those precedents are wrong and need to be overturned.
So what we desperately need now is natural law jurisprudence. The arguments for it are compelling to anyone who believes in Creator and Creation, hence that there is reality and that it can be known. The “nothing is real” crowd have disqualified themselves from taking part in the debate, and should shut up.
(© 2020 George A. Kendall)
