An Apologia pro Sua Vita: A defense of why I've tried to summon my wit over the years to shape a jurisprudence of natural law.
Nathaniel Peters’ review of Robert George’s Conscience and Its Enemies is an insightful introduction to the Princeton scholar the New York Times Magazine resident anthropologist of conservatives, David Kirkpatrick, described as “this country’s most influential conservative Christian thinker.” Aptly titled, “The Dynamic Unity of Conscience,” the essay was almost entirely devoted to George’s understanding of marriage and the philosophic analysis that supported it. In summarizing George, Peters elegantly illustrates how conscience is the first pillar of a decent society, followed by marriage, justice, education, and wealth. Conscience is the central philosophic issue to be sure, but a broader audience might appreciate how George’s understanding of the conscience influences his public policy choices.
After all, he did serve as a Member of the U.S. Commission on Civil Rights (a Bush I midnight appointment) and has also served on Bush II’s Bioethics Commission and currently serves as Chair of the International Religious Freedom Commission, a bipartisan federal government commission. And there was even a boomlet for him (which I started via social media) to be appointed Senator by Gov. Christie to fill the late Frank Lautenberg’s seat.
I should add that I first met Robby George after he wrote a column on natural law that supported Clarence Thomas’s nomination to the Supreme Court. (I had worked for Thomas as a special assistant when he was Chairman of the Equal Employment Opportunity Commission.) I subsequently served as a Preceptor for one of his Princeton law classes, a most gratifying experience that showed me what an engaging teacher he is.
With all this, I differ from George’s approach to natural law. His “new natural law” approach proceeds from a positing of basic or natural goods, which, in Peters’ summary, “include knowledge, friendship, marriage, religion, aesthetic expression, and play. Embracing these goods—pursuing knowledge, being a friend, being united in marriage, worshipping God—constitutes what it means to be a flourishing [or happy, in Aristotle’s sense] human being.” Of course some might dispute what counts as a natural good (e.g., religion).
But the deeper objections to the “new natural law” include its denial of a hierarchy of natural goods; its overlooking the development of natural law in the history of philosophy; and, most seriously of all, its underestimation of prudence in resolving tensions among the goods (between knowledge and play, for example). The natural goods are incommensurable, and evidently there is no principle above the goods which orders or qualifies them. Here prudence, the virtue of making truly good choices, must come in as the creator of order.
Given the possible indeterminacy of a natural goods approach, I emphasize George’s prudence, which leads to support of constitutionalism. In his approach to civil rights, for example, he asks probing questions rather than wielding the sword of color-blindness. In the affirmative action cases, he pursues the strict scrutiny line of analysis. He delights in exposing logical inconsistency. So the University of Michigan wants a “critical mass” of certain minorities for maintaining higher education excellence? What about a critical mass of faculty who are “Evangelical Protestants, devout Catholics, social conservatives, Republicans, and so forth”?
With even more spirit, we see the prosecutor George in his classic take-down of a liberal group, the American Constitution Society, the anti-Federalist Society, so to speak. His curiosity is aroused when he noticed the “under God” removed from its reprinting of the Gettysburg Address (“this nation, under God, shall have a new birth of freedom”), in a pocket-sized Constitution with documents he happened to come upon. His sleuthing catches the Society: On its website, it reproduced the Address as the “Hay Draft”—not what Lincoln spoke or had published under his name. The ACS’s disingenuous response only confirms his biting conclusion: “This tail-covering maneuver makes the society’s intellectual dishonesty manifest.” We recall George’s encounter with Martha Nussbaum over what Plato taught about homosexuality.
On the contentious issue of immigration George relates, based on the touching experience of his own family, “Immigration and American Exceptionalism,” that America is based on a creed, a universal principle that all men are created equal. This makes the gratitude of the immigrants crucial for their attachment to the country. The military service of immigrants—one thinks of the Irish who fought in the Civil War—produced new Americans with loyalties that transcended national origin and religion, too: “religious commitment tended to support patriotic conviction. Faithful Catholics wanted to be, and not merely to be seen to be, the very best of good American citizens.”
But George may be overly hopeful when he declares “it is good for families, and good for America, for immigrants to honor their ethnic customs and identities and pass them along to the next generation.” Of course, he continues, such loyalties must not become “an ideology” that alienates them from political loyalty to America. The requisite civic education requires “as James Madison said, ‘a well-instructed people alone can be permanently a free people.’”
But if such love of country is not taught—a failure underscored throughout his book—should mass immigration be allowed to continue, spurred on by thousand-page bills? Moreover, to return to George’s key theme, how can immigrants show gratitude if they do not acknowledge the injustice they commit when they enter the country illegally. Priests I know, who are fluent in Spanish, have told me they have never heard anyone confess their illegal status as a sin.
I would venture yet another way for Americans to appreciate George, through James Madison, from his 1792 essay on property.
In the former sense, a man’s land, or merchandize, or money is called his property.
In the latter sense, a man has a property in his opinions and the free communication of them.
He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them.
He has a property very dear to him in the safety and liberty of his person.
He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights….
Conscience is the most sacred of all property….
The contemporary enemies of conscience violate both types of property. In their appreciation of the American founding, conservatives and libertarians need to recover the comprehensiveness of its understanding of man, for both external goods and those of the mind. And that means a coherent doctrine of natural right.
With the collapse of the conventional distinction between private and public life, long the support of limited government, contemporary defenders of liberty need to rally around the unity of property in Madison’s sense. Indulging in the dream of leading morally autonomous lives dooms us to be consumed by political authority (see Planned Parenthood v. Casey’s notorious mystery of life passage).