Editor’s Note: This essay is third in a series on American Ideals and Interests. The first essay, Tod Lindberg’s “Moral Responsibility and the National Interest,” can be found here. The second, David J. Kramer’s “Human Rights Problems a Commission Won’t Solve,” can be found here.
Back on July 7, a Wall Street Journal op-ed signed by Secretary of State Mike Pompeo announced his intention to site a Commission on Unalienable Rights in the Department of State. Pompeo argued that since the end of the Cold War a proliferation of loose advocacy about new human rights has muddled the waters fed by the Founders’ oracle of Enlightenment truth. The Secretary opined that by getting back to basics good things could happen—even, perhaps, the reorienting of “international institutions specifically tasked to protect human rights, like the United Nations, back to their original missions.”
The next day at a State Department press conference the Secretary repeated a version of the op-ed but added references to Rabbi Jonathan Sacks and to both Abraham Lincoln and Martin Luther King, Jr. He then introduced as chair of the commission Harvard Law School Professor and former Vatican Ambassador Mary Ann Glendon and asked her to say a few words. Pompeo also announced the nine other members of the commission, plus a head of the Executive Secretariat of the commission (basically an executive director) and a rapporteur—both State Department officials. Announcement of the commission soon appeared in the Federal Register, proving that it was about to become a going concern: The commission’s first meeting is scheduled for some time this month.
The news from July 7-8 sparked my curiosity, particularly as it came just after the convening of the second annual Ministerial to Advance Religious Freedom at the State Department, also presided over by the Secretary, and after a secretarial speech in May titled “A Foreign Policy from the Founding.” Like several other observers, I saw a likely connection between the ministerial and the commission, and between both and the Secretary’s lack of shyness about expressing the influence of his Evangelical Christian beliefs on his policy views. Those views certainly include a perspective on America’s role in the world—most volubly the Middle East—but also on an array of culture war controversies at home, not least the perennial issues of so-called gay rights, and especially the even more hoary issue of abortion.
These lines merge from time to time in policy domains, as for example over the question of whether U.S. government money should go to organizations at home (Planned Parenthood, for example) and abroad that either directly support abortion, or that support other organizations that support and even perform abortions. Thus on March 26 the State Department announced the expansion of the “Mexico City policy,” which bans funding for once-removed organizations abroad that support, pay for, or perform abortion. Predictably, left-of-center organizations in the United States and abroad characterized the decision as part of a “war on abortion”—the Guardian’s chosen locution—while those who oppose abortion lauded the policy shift in equally breathless language.
It is a mark of maturity and prudence to resist coming to overly rapid and certain conclusions about the meaning of such things. Believe me, I tried my best to be mature and prudent. But despite dutifully framing my thinking in terms of three hypotheses to be pondered and if possible tested, I felt myself leaning toward crediting my hunches with a status greater than the term allows. Here they are in brief.
First, the idea that a Commission on Unalienable Rights sited in the U.S. State Department in the Trump Administration could actually move the United Nations, including its own Human Rights Council, to mend its ways struck me as galactically risible. Many Americans take ideology and abstract moral principles seriously, but most of the foreigners who hang around the United Nations are transactional types to a fare-thee-well. Pompeo’s Commission will not rock these sinecured cynics to their souls any more than throwing celery at a lion will turn it into a vegetarian.
The aspiration also gave off a strong whiff of hypocrisy, or perhaps mere dissonance. The President despises all multilateral organizations because, as an unreconstructed Randian, he cannot wrap his mind around any non-zero-sum relationship and thinks all the Abrahamic virtues—generosity, compassion, honesty, humility—are synonyms for weakness. Trump’s National Security Advisor is also an unreconstructed Randian, although he actually read the books instead of just watched a movie or two. John Bolton’s disdain for UN culture is well known and well-practiced, since Turtle Bay is where he was exiled for about two years during the George W. Bush Administration. Most obviously and blatantly, if the Administration as a whole really cared about human rights as they elide with practical policy questions, the President would think twice (or even once, perhaps?) about cozying up to the world’s most egregious violators of human rights. So is the resulting optic one of hypocrisy or mere dissonance? Given all the others deeply distressing things about this Administration it hardly matters.
Second, as soon as I read the list of commissioners, I knew that controversy would roll down the tracks in some combination of the aforementioned culture war issues. That was less a hunch than a simple inference, for everything the Trump Administration does attracts criticism: sometimes honest criticism; sometimes ideologically deranged criticism that often feels like an equal but opposite reaction to the Administration’s own ideological derangement—usually some of both. I have often been among critics of the first sort, stipulating the possibility that just because the President says or the Administration does something doesn’t automatically mean it’s wrong or evil. Criticism of the second sort starts but also stops with presumption.
The empaneling of the commission, even more than the religious freedom ministerial, struck me as an exemplar of an American trait that never fails to manifest. We have always been and remain a very religious people, however over-layered with a secular manqué the original theology-based concepts have since become. The resultant lowest-common-denominator civil religion owes its core characteristics to dissenter Protestantism. As a consequence, given Protestantism’s coterminous 16th century evolution with the Enlightenment, American political culture unerringly demonstrates three biases: toward scripturalism, usually in the form of a written-contract orientation; toward social egalitarianism and against arbitrary hierarchy; and toward abstract creedal as opposed to concrete pragmatic thinking about politics. In this case, that third bias typically entails the assumption of a “best moral practice” universalism.
Thus I fully expected the criticism to share more in common with Secretary Pompeo and Ambassador Glendon than either side expected, not least a focus on texts and an insistence on the universal applicability of whatever human rights were determined to exist.
Above all I marveled at the exceptionalism of the exercise itself. What other contemporary secular nation delves into its founding documents, centuries after the fact, to scrutinize and if necessary correct current thinking and practice? What other nation that typically denies it even has an ideology is so blatantly ideological? What other nation treats its founding political texts with the sacred reverence Americans reserve for the Declaration of Independence, the Constitution, and so on? No other nation on earth is remotely as scripturally devoted as the American nation.
What has become of my hunches over the past several weeks? Let me take the third one first and so leave the more serious aspects of all this for last.
It soon dawned on me that Ambassador Glendon’s role in the commission—she being not nearly as jaded about organizations such as the United Nations and no obvious fan of Donald Trump—explained the accidentally hypocritical line about the UN in the op-ed and the State Department press conference. Indeed, maybe she had a hand in writing the op-ed. Why did I think that?
I know Ambassador Glendon to be a good and clear writer, both from her book Rights Talk and from her having coauthored a fine essay in this magazine last year. Part of that essay, just by the way, bears an uncanny resemblance to the basic argument of Pompeo’s op-ed. Glendon was one of Pompeo’s professors at Harvard Law School, and now she chairs a State Department commission. If there really is such a thing as natural law, that’s an example. Why is Glendon doing this, knowing the flak that would come her way? Through the commission she seeks to advance the argument of Rights Talk. Apparently, to her dismay, just writing and publishing it failed to do the trick.
To make sure I was on the right trail I consulted some former State Department colleagues as to what if any backstory existed on this commission. There is a bureau in the State Department that is in charge of human rights: Democracy, Human Rights, and Labor (DRL). All else equal, one would expect DRL staff to have been part of the brain trust that prepared the idea of the Commission on Unalienable Rights, right? Not a chance, since all else is rarely equal. As it happens, the President’s very belated nominee to be Assistant Secretary for DRL, Catholic University Law Professor Robert Destro, is still awaiting Senate confirmation. In the meantime, the Bureau is being run by Ambassador Mike Kozak, even while he also serves as deputy to Venezuela Special Representative Elliott Abrams.
Since the July 8 announcement of the Commission, Ambassador Glendon has conducted several conversations with DRL leadership. At a July 30 meeting she assured those assembled that they would not be shut out of the commission’s future work as they were the work that led to its inception, and that she intended to run an intellectually rigorous process, with no preconceived outcomes. She may well be able to do that because, from all appearances, the White House doesn’t seem to care what the State Department does so long as it avoids generating negative political news. The Secretary, in turn, appears to have plenty of time for esoteric commission work because the list of foreign policy decision-makers in the Trump Administration, at least since the exits of H. R. McMaster and James Mattis is, with but a few fairly recent exceptions, unusually short.
The commission promises to do more than take up the foreign policy implications of loose rights talk. As Pompeo wrote: “Human-rights advocacy has lost its bearings and become more of an industry than a moral compass. And ‘rights talk’ has become a constant element of our domestic political discourse, without any serious effort to distinguish what rights mean and where they come from.” Note Pompeo’s passing reference to the title of Glendon’s latest book.
Fine, but unfortunately, Pompeo and Glendon have so far failed to properly clarify what they are trying to do. It would have helped had they first distinguished unalienable rights, which putatively come from outside and are above the governments of men, from civil rights, which are the contingent domain of governments. In autocratic systems civil rights are granted; in systems validated by the principle of popular sovereignty civil rights are debated and determined in law. An unalienable right is to a civil right what constitutional law is to ordinary law, the latter deriving and drawing its a priori legitimacy from the former.
A case in point can clarify the distinction: the rapid proliferation in recent years of declamations that, at least for Americans, “health care is a human right.” Let’s unpack this in the context of the distinction between unalienable rights and civil rights.
Is anyone in the United States today, whether citizen, green card holder, or even someone without legal residency rights, denied medical services? No: Everyone already has a “right” to health care from whatever practitioners may be available; no form of medical apartheid exists in the United States anymore, thank God. What those who proclaim health care as a human right really mean is that all Americans should be able to avail themselves of health services and, if necessary, have someone else pay for it. But, in principle at least, that “right” was already firmly established in 1965 with Medicaid. So what the slogan actually means today in practice is a demand that government generously subsidize health care insurance for all those who cannot afford it and who are not otherwise covered by Medicaid. That does not sound as morally lofty as a “human right to health care,” but how it sounds and what it actually amounts to are not the same. The demand is couched in the language of a human right, but it is really about determining the extent of a civil right.
There is obviously a problem with the rising cost of health insurance squeezing the lower quintiles of the American middle class, but does that sound like a right on the same general plane as “life” and “liberty”? Of course not. This is a garden-variety political economy issue, albeit an important one, gussied up to look like something morally transcendent. If the commission can shine a light on such evasive language, good. It has a far, far better shot at achieving that than it does at reforming the United Nations.
My other hunches drift in and out of one another, so let’s take them together. About the controversy and its nature, I’m afraid I was right, but controversy is not in itself a bad thing. In this instance, the character of some of the criticism of Pompeo’s commission is revelatory of some more profound attitudes that beg analysis and understanding.
Assuming that Ambassador Glendon did not dissemble in her remarks to the DRL staff, her pledges matter, because most critics of the commission are sure that the whole thing is a narrow-bore effort to roll back abortion and homosexual rights. The criticism is the flip-side, in a sense, of the critics’ own obsession with pressing for “LGBTQ equality worldwide.” Even if one shares this ambition, that hardly means there are not other worthy objectives a human rights commission might be expected to treat. Care to see a list of such worthy objectives? Just read the table of contents of Rights Talk.
Maybe the critics will be proven correct, but there is no sign to date that Ambassador Glendon views the prospective work of the commission in such a narrow manner. And yet some 350 self-described human rights organizations and assorted individuals signed an omnibus letter on July 22 criticizing the decision even to create the commission on the assumption, without any actual evidence, that they already know what its conclusions will be. There were similar letters within letters, meaning that particular groups decided to pen their own accusations. A slightly more apoplectic than average example is a letter courtesy of the New Ways Ministry signed by more than 125 “Catholic leaders.” One of dozens of protests by LGBTQ groups, the letter objects to “both the goals and the composition” of the commission, which is led by the “highly LGBTQ-negative Catholic Mary Ann Glendon.”
According to the signers, the commission’s view of human rights is “conditional, limiting, and based on a very narrow religious perspective that is inconsistent with the beliefs and practices of billions in this country and around the world.” But of course it is impossible to take a view that encompasses everyone’s idea of human rights and be left with anything remotely useful or coherent—exactly the problem that defines the commission’s starting point. Not only does the criticism exemplify the problem; it accuses the commission of vast aspirations it does not claim. Its explicit aim is to sort out, mainly for ourselves as Americans, the bases and meaning of human rights at this philosophically confused point in time. In her brief press conference remarks Glendon referred explicitly to “the distinctive rights tradition of the United States of America.” No one involved with the commission has claimed that its conclusions would apply to “billions of people around the world.”
And there is nothing wrong with understanding that rights acknowledged by social authorities—whether “human” or merely “civil”—must be limited at the margins because rights can be incommensurate. Individual rights can conflict with the rights of faith communities and the corporate minority rights of ethno-national communities within the larger nation. The LGBTQ-based critics—and there seem to be no other kinds—generally refuse to acknowledge this but insist instead that their rights override all other rights.
That is not all. The signatories of the aforementioned New Ways Ministry letter claim that the commission will lead “our State Department to adopt policies that will harm people who are already vulnerable, especially poor women, children, LGBTI people, immigrants, refugees, and those in need of reproductive health services.” It’s easy to get a feel for what the self-described Catholics of the New Ways Ministry really care about. Along the margins of the letter the website draws the reader’s attention to other recent features, including: “In First for Colombia, Both Names of Lesbian Mothers Listed on Child’s Baptismal Certificate,” “LGBTQ Catholics from Philippines, Mexico, Uganda Speak at Fordham University Event,” “Two Months Later, Conversation Still Continues Over Vatican’s latest Document on Gender,” “Brazilian Archbishop Forces Cancellation of Performance by Transgender Artists,” “Anti-LGBT Criminalization Efforts,” “This Month in Catholic LGBT History,” and so on. This is the operative context for further comments in the letter. Thus Rev. Bryan Massingale:
It should be unthinkable that that a U.S. Cabinet member would question a landmark principle in our nation’s founding document, the “Declaration of Independence.” To undermine the conviction that all human beings, created in the image of God, possess inherent rights to life and liberty, is both disturbing as an American and offensive as a Christian.
It would be disturbing, if it were true—and note the scripturalist bias common to both sides. In the press conference Pompeo did reel off three questions, the last one in this rhetorical form: “Is it, in fact, true, as our Declaration of Independence asserts, that as human beings we—all of us, every member of our human family—are endowed by our creator with certain unalienable rights?” But to read that as if Pompeo means to suggest that the answer is “no” is bizarre. Indeed, in the very next paragraph of Pompeo’s press conference he refers to “the timeless truths embedded in the American founding.” Nowhere in any op-ed text, interview, or speech is there any hint of anyone associated with the commission wanting to deprive any American of the right to life or liberty, unless one or the other of those two abstract nouns has been redefined well beyond conventional definition.
But that is exactly the point. Massingale’s accusation, seen in its context, only makes sense if one believes that so-called marriage equality is a God-given or otherwise absolute human right. The very idea that is it is or should be is of very recent vintage, and is by no means universally accepted, much less clearly a majority view in the United States. Massingale’s complaint, when you dissect it a bit, has nothing to do with a human right as it was understood in 1948, when the Universal Declaration on Human Rights was promulgated. It has instead to do with a group-based claim to a set of civil rights. It asserts in essence that this point of view about homosexuality should be above political debate, and the way you shield a point of view from being criticized in debate is to get it classified as a human right.
Playing bait-and-switch between “human” and “civil” rights is not a new tactic, as Pompeo and Glendon have said. More than a thousand new “human rights” have been inscribed into a host of international treaties and documents over the past sixty or so years, the vast majority of which people like Madison and Lincoln, and Eleanor Roosevelt for that matter, never dreamed of. This proliferation stems from special-interest advocacy having successfully piggybacked on the solemn reputation of the 1948 Declaration, and to some extent from Cold War-era attempts by Soviet leaders to dilute the 1948 Declaration with claims to economic rights and the like.
Some accusations against the commission get even more strident and evidence-free. Critical groups contend that the commission should be abolished based on members’ “extreme positions opposing [LGBTQ] and reproductive rights”—this remark from the Washington Blade. Why do these critics assume that there is no diversity of views among the commissioners, who include Democrats and independents as well as Republicans, Jews and a Muslim as well as Protestants and Catholics, or that views would not change in the course of debate and discussion? How do they know a priori that the commissioners’ conclusions would rule out the exercise of tolerance for the views of others? Most if not all of these dark assumptions are probably projections of the signatories’ own modus operandi, were they members of a similarly constructed but differently minded commission. That goes double for the assumption that this is the only issue that such a Commission could possibly be about, because, again, it’s the only issue that these groups seem to care about.
Now, in the same New Ways Ministry letter, Rev. Drew Christianson, S.J., offers a more serious challenge to the commission’s presumed perspective, claiming that “Secretary Pompeo’s review of unalienable rights represents a threat to two key dimensions of the modern human rights law: First, it threatens our acknowledgement of the historic development of rights over the centuries. . . . Second, it puts the universality of rights, proclaimed by the Declaration of Independence, and the French Declaration of the Rights of Man, at risk.” The first point is almost a fair one; who was “equal” under the Declaration in 1776 was a more limited concept than it is now. But this does not call into question the array of human rights but rather the extent of inclusion in them—not at all the same thing. Either way, I cannot imagine Pompeo or Glendon preferring the narrower definition of inclusion that existed in 1776, and neither Christianson nor anyone else has offered any evidence that they do.
Christianson, moreover, wants to drive a semi-truck through a hula-hoop. Just because the understanding of civil rights, or who is included as having civil rights, has broadened over time doesn’t mean that all new claims to civil rights are ipso facto legitimate. It certainly does not mean that new claims to human rights should be judged in an expansive matter as a default orientation, for that risks rendering the entire category banal. Again, it is by now a well-worn tactic to translate a particular “progressive” desideratum from a political position into a “right” in order to gain leverage in political debate, since rights are supposedly beyond scrutiny.
The second part of Christianson’s claim is, like Massingale’s, nonsense. Did traditional bias against homosexuality in most human cultures over many centuries stop the historic development of presumably universal rights to include the fight against religious and racial bigotry? Certainly it did not. Critics sometimes make it seem that, were it within their power to do so, Pompeo and Glendon would want to kill or imprison LGBTQ people, the conflationary logic here being that any theoretical denial of LGBTQ rights pointed toward the future implies the disavowal of all rights progress pointed toward the past.
I want to be clear here concerning an obviously fraught and emotional subject. I support full civil rights for all American citizens regardless of any circumstance of birth, up to and including same-sex civil unions with all non-discriminatory spousal rights protected by law. Discrimination, both cultural and occasionally legal, against homosexuals is and has always been shameful, no less than discrimination against people of color has been shameful. I doubt that Secretary Pompeo or Ambassador Glendon hold a different view, and if that is true, most of the critics’ fears disappear in a puff of sobriety.
Most but not all. There is a real conflict here living beneath the ambient hysteria of the critics. It is important, however, to understand what it is and what it isn’t.
It isn’t about denying gay rights in toto, and it wouldn’t even be about so-called marriage equality if its status as a putative right did not bear a potential to create reverse discrimination against individuals and organizations that did not share that view. But that is clearly a prospect, and LGBTQ warriors have been actively trying to force the issue. Just ask that baker in Lakeland, Colorado, who was willing to bake and sell anyone a wedding cake, but not to inscribe a message on the cake that ran against the dictates of his conscience. He was sought out not for the purpose of baking a cake but to make a precedential legal point at his expense.
The effort failed—Masterpiece Cakeshop v. Colorado Civil Rights Commission—but it might not have, given the many bizarre Supreme Court rulings of recent times. It is all too easy to envision the Civil Rights Division of the Justice Department issuing rulings that discriminate in terms of public support for parochial education and tax code specifics against Catholic and Orthodox Jewish institutions because their clergy refuse to ordain women or perform same-sex marriage ceremonies.
So when Ambassador Glendon said in a Lawfare podcast last month that, “What same-sex marriage advocates have tried to present as a civil rights issue is really a bid for special preferences,” she was exactly correct. To be valid within the American rights tradition, “gay” rights must be understood as falling under the nest of protections that all American citizens enjoy as individuals, not as members of some group seeking rights as a group. The issue here is the extension of the terms of inclusivity under rights already promulgated and accepted by consensus, which is exactly why Martin Luther King, Jr. was both correct and shrewd to emphasize that he demanded equal rights for African Americans under the same pieces of paper that established rights for all other American citizens. “Gay” rights put in those terms are inarguable; there can be no basis for discrimination against any American citizen’s civil rights because of sexual orientation. But to put it in terms of special preferences for a group insinuates that these rights must always prevail when they conflict with the rights of other individuals or groups—hence the origin of Masterpiece Cakeshop. That is not only an example of insufferable arrogance, it is very specifically un-American.
The attempted elevation of “gay” rights above all other rights leads us to an orthogonal observation about the American historical experience. The concept of human rights in the American philosophical tradition stressed individual rights, which is nothing odd for a political community born in the womb of the Enlightenment. But, as already noted in passing, the rights of dissenter faith communities as communities were also deemed legitimate, and by eventual extension the rights of non-Christian faith communities as well. The letter George Washington wrote to the members of the Touro Synagogue in Newport, Rhode Island, is rightly considered a foundational document of religious freedom in American history, and it is addressed to a group. Nevertheless, from the perspective of political philosophy, the true depth of the distinctive American concept of religious tolerance applies foremostly to individuals, and here, as briefly as I can manage to explain it, is why.
The Protestant Reformation was or soon became a twin theological-political movement, for it was based on the fertile idea of conscience as the pivot, so to speak, of moral reasoning. Conscience was central to arriving at theological truth through scripture, since the theology of the Catholic Church was deemed untransmittable by fiat from priest to parishioner, just as the rituals of the Church could not save someone who was not “born again.” This concept of how to arrive at theological truth led to a social consensus in Protestant communities on the importance of conscience in the political arena as well, the simple understanding being that if the capacity for moral reasoning is essential for an individual to come to religious truth, then moral reasoning collected into a social ethos is the only foundation for a morally just political order. That idea in turn led to the usually implicit conclusion that individual and socio-political facets of conscience reinforce one another in a virtuous cycle; a good person more readily becomes a good citizen, and being a good citizen includes being a good person.
Note carefully that this distinctively Protestant way of thinking about the moral bonds between the individual and society, with conscience as the fulcrum between the two, is quintessentially modern because it starts with individual, not corporate, agency. God’s will is implemented upward through popular sovereignty conceived as the structured integration of individual citizens into a corporate or civil will, not downward from the divine right of kings. This is where the moral basis for modern liberal democracy comes from; this is, in other words, the conceptual origin of We the People. One may assert that it is an Enlightenment concept validated by innovation in Christian theology, or that it is rather a Protestant concept validated by the new intellectual influence of the Enlightenment. It was of course dialectically both.
Why belabor this here? Because it shows that the right to follow one’s conscience, the very foundation of the American idea of religious freedom, is central to the entire edifice of American political thought. It is at its heart the main reason justifying the concept of limited government: The state may not, cannot, tell a citizen what to believe, only what he or she may or may not do as a matter of law. The right of conscience is not just some garden-variety right among many rights; it is the right that makes the American rights tradition distinctive.
That, in turn, is why the key criticism of the Commission, that, as the New Ways Ministry letter states, “Almost all of the Commission’s members have focused their professional lives and scholarship on questions of religious freedom,” is true as stated but wildly strange as intended. It is obvious from context that the critics mean that this focus is a bad thing. Perhaps it is, and of course it is true that, like all civil rights, the right to conscience based on religious belief must have limits too. But the right to conscience is also the very plinth of American political thought, so to reject it so blithely is therefore to thoughtlessly reject a lot. One has to wonder if the critics realize the implied scope of their complaint.
One also has to wonder if the critics understand where their criticism ultimately leads and lands them. It seems to land them in a plainly anti-Abrahamic space, and here we come to the nub of the matter.
The objections of LGBTQ critics are all based on an insistence of the unlimited right of individual choice, whether to an abortion or, more to their concerns, to any election of gender and sexual orientation and to its socially uncriticizable open expression. It seems to be a logical extension of countercultural-bred “expressive individualism” applied to, or rather against, traditional American religious establishments. Again, if those choices never abraded on other people’s rights, they would not much matter. But when they do, in this framework all other claimed rights are subordinate, including the group rights of faith communities or any individual’s right to religion-based conscience.
This is not only philosophically un-American, it also turns the proximate purpose of the 1948 Declaration on its head. That Declaration was largely about protecting the rights of religious and ethnic groups from systematic bigotry (and mass murder) perpetrated by governments against their own and other people. Now LGBTQ and other “progressive” activists (like those trying to ban ritual circumcision because it allegedly violates some right to physical integrity of a new-born male child) insist that the U.S. government behave in prejudicial ways against those same groups. This view is held with what is clearly a religious conviction, but what it has to do with Christianity—or in the case of the New Ways Ministry with Catholicism—is a mystery to me.
What is particularly intriguing in all this concerns how self-avowedly religious people, in the case of the New Ways Ministry letter Christian religious people, have become focused unrelentingly on the human body, with the anti-circumcision effort, more advanced in Europe than in the United States but also growing here, being just another indication of it. Why is this?
An answer has to begin with a simple observation: This is not a traditional focus of Christianity, Judaism, or Islam. Yes, religious law does apply to the body, for example in the prohibition in Jewish law against tattoos and other markings. But the main concern of both Abrahamic theologians and lawmakers alike has always been on some combination of behavior and belief—the heart and the soul, in other words. Normative Abrahamic religion has always prioritized discipline in the relationship between man and his fellow man (morality) and between man and God (spirituality). The self-avowed Catholics who signed the New Ways Ministry letter seem, from all appearances, to prioritize the very opposite: not discipline but unfettered choice focused not on their behavior toward others or toward God, but overwhelmingly on their physical selves.
What does this mean? Well, all sorts of para-Freudian suppositions leap to some minds, but I would suggest something different: The essence of the LGBTQ criticism of the Commission (and of course not only the Commission) is based on a particular form of idolatry, a form in which the godhead is the self. Somehow, the idea of human beings being created in the spiritual image of God has slid imperceptibly into the idea of human beings being gods unto themselves. As God is unlimited, so in this dispensation is the individual imagined to be unlimited, at least with regard to what seems to obsess them: human genitalia and how to use them for pleasure rather than for procreation. Through this transformation all shame disappears, and since shame is the emotional bellwether of sin, sin disappears as well, at least within this vast precinct of human behavior. The yoke of the kingdom of heaven thus lies broken in pieces on the floor in the face of what appears to be the ultimate form of narcissism.
Again, such views closely resemble religious views in their categorical and emotional nature, but ones bearing a greater likeness to pre-Abrahamic inclinations: the ubiquitous phallus and fertility worship cults of the ancient world. Christian, Jewish, or Islamic, however, they are not.
Just a final remark about the New Ways Ministry letter. Note that its title refers to the commission being a “natural law” commission, which the signatories abhor. But an earlier New Ways Ministry essay was entitled “Catholics Must Stop Trump’s Misuse of Natural Law Theory against LGBTQ Equality.” Now, Trump himself cannot be misusing or using natural law theory because he has no idea what it is. But it’s not clear that New Ways Ministry knows what it is either. Is the commission a natural law commission, implying that natural law is bad, or is it misusing natural law, implying that natural law when not misused is good? If you read the two essays together you might suppose an answer would come clear. It doesn’t.
To simplify for the sake of brevity, all natural law meant at the outset, in Aristotle’s hands, was that the world was knit logically together. Reason and invariant causality are embedded in creation—fine, if bad press for magicians. Much later on, in Aquinas’s 13th-century hands, natural law was developed as a way to settle a dispute as to whether theology and philosophy were compatible. This same dispute also occupied the other two branches of the Abrahamic family: Maimonides concluded that they were compatible about a century before Aquinas, which led some Jews in Paris to burn his books; and so did Ibn Rushd (Averroes) in arguing against Ibn Ghazala at about the same time.
Now, when Spinoza got his hands on the same basic idea in the 17th century, he spun it into the center of his philosophy, basically arguing that God was reason and reason was God, so that the whole world was suffused with the Divine because creation was utterly reasonable and hence naturally lawful. Others around the same time determined to use the concept to transcend the denominational mayhem of the wars of the Reformation and their aftermath, and at the same time affirm the triumph of Enlightenment science over religious superstition. So natural law, in this dispensation, became a de-denominationalized way of smuggling God into the picture as “first cause” without naming Him. This was necessary because, at the time, naming and claiming Him for any particular denomination started huge fights, but without some first cause the rather mechanistic system they imagined, suggested to them by clock escapements and orreries, didn’t work. It was in a similar 18th-century dispensation that natural law came down to the American Founders, notably to Deists like Franklin and Jefferson.
So then, which of the several versions or uses of natural law over the centuries is the New Ways Ministry referring to? It is impossible to say, for philosophical literacy has gone begging, not for the first time in the saga of Secretary Pompeo’s Commission.
What all this comes down to—and I don’t expect everyone to agree—is that there is no firm epistemological basis for defining what is and is not a fundamental human right. Certainly natural law fails any test in this regard because those who would use it to derive positive moral law—which is what the whole human rights business is all about—immediately commit the is/ought fallacy and hence piss off the ghosts of both David Hume and Jeremy Bentham. Aristotle had it right from the get-go in the sense that the world is indeed causally coherent, but from that coherence about what is one cannot derive any conclusion about what ought to be.
Human knowledge of what ought to be can only come from extrinsic revelation or, if one does not credit that possibility, then from aspirational efforts to establish moral law in general and human rights in particular that happen to catch on and prevail, at least for a time. Maybe long-term cumulative progress in this regard is possible; many think so. Certainly, philosophers and moralists over the centuries in just about every civilization zone imaginable have struggled to determine what human values, if any, are both irreducible and universal. There is widespread consensus that there must be some, and the recently certified unity of the human genome leans us further in that direction. But there is also widespread consensus that establishing a firm consensus on what these irreducible and universal values are is very difficult. Cultural diversity abounds, which to my mind is no less a good thing than is biodiversity.
The American Founders understood this. But they were willing to give the notion their best shot in part because they knew that the rights iterated as irreducible and universal in the Declaration had to compose a very short list in order to ensure maximum feasible consensus, and so keep the “Whig”-inclined nation on the same simple sheet of music in advance of a war. Jefferson turned the trick as a 33 year old with “among them life, liberty, and the pursuit of happiness.” Note that he wrote “among them,” leaving all but three of some unknown number implicit. This was very shrewd.
The Founders knew that for the Revolution to succeed, they had to stir up the spiritual energies of the American people and find language that united enough of them to prevail. To do that they had to make bold claims, and young people who make bold claims, whatever their tactical origins, very often come to believe in them. So in the throes of revolt and then war, most of the Founders and their followers really came to believe that America was, as it says on the dollar bill, a novus ordo seclorum. They believed, or came to believe, that they were beginning the world anew, a world without dynasties and their mercantilist war-seeding ways, a world without aristocracies and their heinous social hierarchies, a world without whimsical justice but real rule of law, a world without conscience smothered by “established” religions, a world, in short, in thrall ultimately to a future American “Empire of Liberty,” as Jefferson put it.
This was in the main Protestant eschatology secularized, spiced with Enlightenment vocabulary, and then fit to their late 18th-century purpose; but the Founders didn’t see it that way anymore than a fish “sees” the water it swims in. At the time it sounded like something new under the sun, and in its specific context it was something new under the sun. Because it succeeded and survived thereafter a series of trials and tests, not least a catastrophic Civil War, its claims concerning the existence of irreducible and universal human rights earned consideration. Praxis thus redeemed philosophy. In my biased, native-born view, the world is better off for the American experience and experiment, but since I am not an evangelical American by manqué religion I know that neither my view nor anyone else’s makes these claims true. In the end, all such claims are faith-based, one way or another.
Don’t take just my word for it. In 1948 the American Anthropological Association took a dim view of Eleanor Roosevelt’s Universal Declaration of Human Rights. On the basis of what its members knew about human cultural diversity, it feared that the fiat of the World War II victors would pretend to an objective universality that did not exist and might incline American and other Western political leaders to hubristic forms of cultural imperialism. Were they wrong?
Mike Pompeo’s commission isn’t really about abortion or homosexual rights or anything so fleshy. He and Ambassador Glendon at least are able to lift their gaze above their own and other people’s genitalia. Rather, it is the larger trend to conflate civil with human rights in the service of parochial political claims that they wish to call out and resist. I’m fine with that. The fact that the most vociferous criticism has come from LGBTQ organizations says more about the trajectory of American culture right now than it does about the commission. But if Pompeo and Glendon think that they can, for the first time ever, establish a foolproof epistemology for determining which human rights are “real” and which are ersatz and politically tactical in nature, then they are either bound to be sorely disappointed or guilty of philosophical atrocity. That is far more important in the end than their ridiculous delusions about “saving” the United Nations from itself. I, for one, can barely wait to see how they manage the inevitable finesse between what they promise and what they can deliver.
Finally, one thing that sticks out about all of this is the multiple failures of nearly all concerned to be able to think philosophically. The proponents are still struggling with naming basic categories, such as human as opposed to civil rights, and with identifying what they aspire to as an exercise in moral epistemology. At least some of the critics can’t distinguish natural law from Gray’s Anatomy. Let me conclude, then, by quoting that great 20th-century philosopher, Casey Stengel. As manager of the hapless 1962 New York Mets (40-120), he spoke of baseball, the most philosophical of sports for its being infinite in both time and space. So I take the liberty of repurposing his immortal words to refer to philosophy itself: “Can’t anybody here play this game?”
