Council of Jerusalem

Thursday, September 1, AD 2011

A question arose yesterday in a thread, posed by Michael:

I have a real question. Homosexuality, as a sin an abomination, is mentioned in Leviticus. That book, however, also says:
 – disrespect of parents should be punishable by death
 – sleeping with a woman during her period should make both parties outcasts
 – don’t eat pork
 – shellfish are an abomination

So my question is, why are some of the verses ignored and others so important?

It is a good question and sometimes confuses Catholics and non-Catholics.  The answer to the question is in the very earliest history of the Church.  After the ascension of Jesus, the apostles went about the great task of making “disciples of all the nations”, and Christianity began to spread among Jew and Gentile alike.  The question quickly arose as to whether Gentile converts would have to be circumcised (the males only of course!) and follow all of the Jewish laws regarding ritual purity.  If they were asked to do this, it would mean a complete revolution in their life.  They would no longer be able to even eat a meal with their Gentile relatives and friends.  Like the Jews, the Christians would be a people set apart, cut off from interacting in the simplest ways with non-Jews for fear of violating the hundreds of laws of the Old Testament regarding ritual purity.

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47 Responses to Council of Jerusalem

  • EXCELLENT post, Don! I don’t believe I have ever seen this issue explained more clearly and concisely. This should be a “must read” and a “must link” throughout St. Blog’s.

  • Thank you Jay. The Old Testament laws and their applicability to Christians is an issue that keeps coming up in current debates and Catholics need to know that the answer is a pretty simple one.

  • Jesus and then Paul were asking the Jews to chuck 4,000 years of following the Law and sacred traditions as they understood them. It’s easy to grasp the reluctance of many to adopt the “new covenant” on the mere say-so of a dozen followers of a man claiming to be God. Jesus claimed to fulfill the law, of which the curse was sickness, poverty and death.

    As these things continued after Christ’s death, many understandably could not embrace the new religion. This is the “stumbling block” that remains for Jews to this today and many others including atheists and agnostics.

    Don, your explanation as to why some portions of the OT apply and others do not rests on Paul and the other apostles’ interpretations solely. As Saul he was the chief persecutor of the followers of Jesus, then claimed to be his chief supporter. A 180, which we are to believe was the result of his “vision” on the trip to Damascus. Likewise we are to take at face value Peter’s “vision” about which animals are OK to eat.

    Down through the centuries, men and women have claimed to have “visions,” which they subsequently offer as “proof” of divine instruction to pass along as the “truth.” These would include Joe Smith as well, who launched Mormonism as well as Mohammed and countless other major and minor prophets. Which of these “visions” are valid and which are bogus? It boils down to who one choose to believe and nothing more.

  • If you believe in Christ Joe, you believe in what Saint Peter and Saint Paul taught, and the authority of the magisterium of the Church, since Christ granted to the Church through Saint Peter the power to bind and to loose. Saint Peter and Saint Paul believed in what Christ had taught and the evidence of this is the martyrdoms they embraced.

    I answered the question posed by Michael as to how Catholics determine what Old Testament laws are binding and what are not. The doubt that has eaten away at you for so long is something that only you, with the grace of God, can address for yourself. For all of us the essential question always remains the one posed by Christ to Saint Peter: “Who do you say that I am?”

  • Joe, I don’t think that Donald was offering a proof. He lays out a consistent rule and explains its origins. Nothing wrong with that.

  • For all of us the essential question always remains the one posed by Christ to Saint Peter: “Who do you say that I am?”

    I ask myself that same question every day and every day I come up with the same answer: “I don’t know.”

  • While everything you say about the Council is true, it doesn’t apply to some of the Levitical Laws such as disrespect of parents should be punishable by death or having “Cafeteria Jews” put to death, otherwise most Jews would have been dead by the time of Jesus and the prophets would have no-one to rail against.

    As with Catholicism, Judaism is not a religion of the book. The laws were understood in community and they had a purpose. For instance, the law for parents to kill disrespectful children was not so much a commandment for parents as protection for children since in order to carry out this commandment you needed to go to priestly council to pass judgment. Most parents would not go that far since they love their children, and those who would have, would likely have killed their children anyway. Once at the council, there priests can talk to both parties and achieve reconciliation or use other means such as disowning the child to protect the child. If you look at Jewish historical records you will see that such disrespectful child executions rarely happened, so that pastoral counseling must have worked.

    Protestants have a much harder time with the Council of Jerusalem since they can’t make an Ecumenical Council “God Breathed” since that would mean Catholic doctrine was true, but if they don’t, they can’t abandon Jewish Law since neither Paul nor Peter nor an Ecumenical Council that took the words of Paul or Peter has the authority to repudiate Jewish Law. And even if they could, “since it is in the Bible”, the council merely stated gentiles should follow the Seven Laws of Noah which are binding on gentiles and Jews alike and nothing in the Bible says that we have the freedom to eating of flesh cut from a living animal (more than a few food Christians commonly eat qualify, especially some ham and sea food) or be blissfully unaware of how the food was processed.

  • I’m not sure the following is 100% correct.

    I’ve read that Leviticus distinguishes between two types of laws:
    (1) Laws for the Jewish people
    (2) Laws that prevent “defile the land”

    The first type of laws (like not wearing polyester) apply only to those initiated into the Mosaic covenant.

    The second type of laws, laws prevent the defilement of the land, apply to all peoples, regardless of whether or not they are initiated into the covenant. Lev. 18:26: “The native-born and the aliens living among you must not do any of these detestable things” lest “the land become defiled.”

    Here is a list of all the “sins which defile the land,” all the Old Testament laws which non-Jews had to obey, or be “cut off from the community.”
    1. Exod 12.19: Do not eat leaven at Passover
    2. Lev 17.8-9: Only offer sacrifice at the Tabernacle door
    3. Lev 17.10-12, 14: Do not eat blood
    4. Lev 18.26: Do not commit sins listed in 18.6-26 (including homosexuality)
    5. Lev 20.2-3: Do not give children for Molech

    Do these laws which Judaism extended to all people also extend to Christians?

    The Council of Jerusalem, which decided to admit Gentiles to the Church, admitted them to the Church on four conditions (Acts 15:29):
    • Do not eat things polluted by idols (#2 & 5 above)
    • Do not commit porneia (sexual immorality) (#4 above)
    • Do not eat whatever has been strangled (#3 above)
    • Do not eat blood (#3 above)*

    In other words, the only condition which the Apostles laid down for Gentiles to enter the Church was that they keep all the laws which the Jewish Law commanded non-Jews to keep.

  • Jesus and then Paul were asking the Jews to chuck 4,000 years of following the Law

    1,000 years.

  • Art, give or take a millennia or two. Supposedly, Adam and Eve were created around 4,006 B.C., according to Bishop Usher (Oct. 15 if memory serves at around 9 a.m. eastern standard time), and since the Hebrews soon followed, 3,000 years would seem to be in the ballpark. But whatever the number, the original point holds: that for a long time the ancient Jews subscribed to rigid ritual.

  • “They were required to fellow the ten commandments” If that is so, then we should be going to church on Saturday, nor could we have statues or pictures of Jesus. The ten commandments were a part of the Old Covenant, as much as the law of kosher was. The laws of God existed before the Old Covenant (see Genesis 26:5), so this isn’t an arguement for antinomism. We do use a form of the ten in cathesis, but it isn’t the ten commandments of the Old Covenant. Jesus in the Sermon On The Mount, went beyond the mere letter of the law, and taught us the intent or the spirit of the law. we are no longer under the letter of the law, which kills, but the spirit of the law which gives life. (IICor 3:6-18)

  • No Stephen, the Ten Commandments, as interpreted by the Church, are still in full force and effect, as the Catechism amply demonstrates:

    “2068 The Council of Trent teaches that the Ten Commandments are obligatory for Christians and that the
    justified man is still bound to keep them;28 The Second Vatican Council confirms: “The bishops, successors
    of the apostles, receive from the Lord . . . the mission of teaching all peoples, and of preaching the Gospel to
    every creature, so that all men may attain salvation through faith, Baptism and the observance of the
    Commandments.”29”

    Just one of many gifts that the Church has received from God through transmission by our beloved Jewish brethren.

  • Joe, if you don’t mind me saying, you describe your agnosticism like you’re in a dead-end relationship with it. Usually people stay in a dead-end relationship for a reason. So what are you getting out of it?

  • Just a lot of agonizing frustration, Pinky. Not much else. The search goes on.

  • Stephen, I believe your assessment is correct. The council dealt specifically with Jewish identity markers that were being forced upon Gentile converts. It did not deal with ‘the law.’ The coucil had to meet becasue there was a definite transition by the time that’s narrated in the Acts. It was peculiar to that time; this sort of thing could never again arise. Councils can and have been called ever since in various forms for different reasons. But who can say that the Spirit decided the results in each instance? I would never assume that.

  • The Sabbath Day of the Hebrews was Saturday because that is the day God rested. Christians came to have Sunday as Sabbath because that is the day of Christ’s Resurrection. The religious art was/is not worshipped as were idols.

    I look at the history as relayed, Stephen. Jesus, Divine and human, came to live among us and renew our spirits. We were, at the end of the Old Testament, fully involved with legislating the letter of the law with inhumane actions basing these on the Ten Commandments of old. As God saw the need for his people to have guidelines for worthy lives then, He also saw how we lost its meaning through lack of love of Him and one another. We made the laws to be ones that kill. He made them to give life to His people. So, the New Testament.

    In the New Testament, Jesus was born a man to clarify and help us get away from being bogged down with the letters, the way we do. He taught the spirit of the law, loving God and neighbor, which necessarily entails lovingly obeying the Ten Commandments. I think He came as a reminder that that God loves His people beyond our capability of understanding the depth. I don’t agree that He meant that we forget any of His guidance throughout the ages. Jesus also added the neighbor consciousness to determine that we understand Gentiles are also God’s children, who had customs different from those of Hebrews which were not going to make a difference in spiritual salvation.

    Thank you for this post on the Council of Jerusalem. It’s such a clear approach. I was thinking of how to reply to Michael’s question. All I could come up with was unclean: shellfish being bottom feeders (no plumbing then), pork somewhat the same reason (garbage for a diet), the woman unable to conceive at this time would entail pure lust, and the parents being an example of how unlovingly man tweeked God’s law – all evidence of no chastity or raising mind and spirit above the organs below the waist.

  • I suspect that the command against eating meat from strangled animals and consuming blood refers more to some kind of (for lack of a better term) “active participation” in pagan sacrifices or rituals, than it does to simply eating meat or meat products that have not been processed in accordance with specified dietary laws. Otherwise eating blood sausage would still be a mortal sin, I’d think. I believe this is also one of the biblical passages that the Jehovah’s Witnesses interpret as forbidding blood transfusions.

    In any event I have always understood that the command against “porneia” or “immorality” meant that all Old Testament laws defining certain sexual RELATIONSHIPS as immoral carry over into New Testament law and are also binding on Christians — including laws against homosexuality and incest.

    Furthermore, the Greek word “porneia” used here also occurs in the Gospel of Matthew when Christ states that anyone who divorces his wife “except for immorality (porneia)” and marries another commits adultery. Now many Protestants interpret this to mean that Christ allowed divorce if either spouse commits adultery, but the most common and orthodox Catholic reading of this passage that I have heard, is that it probably refers to already married converts from paganism who would never have been allowed to marry under Jewish law because their relationships were considered incestuous or immoral. Those couples were free to dissolve their unions and marry again, but not anyone else.

    However, other sexual purity laws such as the rule against intercourse during menstruation and the accompanying necessity for women to ritually purify themselves every month (google “Laws of Niddah” or “mikvah” if you care to know more about it), do not carry over into Christianity.

  • While everything you say about the Council is true, it doesn’t apply to some of the Levitical Laws such as disrespect of parents should be punishable by death…

    Anil Wang

    That law was the reason why the request of the Prodigal Son was so scandalous to Jesus’ hearers when He spoke the parable of that name.

    By the way, do you have any historical evidence to demonstrate that Judeans normally carried out executions in the name of this law?

  • Don

    you knocked it on the head. keep up the good work.

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  • Really ,this is a lot of stuff. Love and Honor God .Love and Honor your neighbor and the rest of the words are meant to make some people think they know more than they really know.
    Listen to the reports of some of our dedicated priests about the actions in Philadelphia and Kansas City.These dedicated men have to deal with the shame brought on by the pedophile priets and that heirarchy who covered up for them.

    A lot of prayer and love is needed.

  • @ Joe

    You are right, the million dollar question is, who was Jesus? Was he just a crazy man or was he really God made flesh? It is obviously an all or nothing question, but how do we know?

    The way to know can actually be answered by your reference to Joseph Smith. You asked what is the difference between trusting Peter or trusting Joseph Smith?

    Well first we know that Peter was taught by Jesus directly, while Joseph Smith claims to have had a vision from an Angel.

    Second, Peter’s words can be checked against the other 10 Apostles whom were taught directly by Jesus, while we are left to just take Joseph Smith at his word, that he really did see an angle, that the gold tablets really did exist, that he was actually able to translate them, etc.

    The list could actually go on, but you can read if you are interested in seeing the differences.

    So, it seems that if you are going to trust someone, it should be Peter, but that begs the questions, can Peter (or any of the Apostles) be trusted?

    I believe Peter can be trusted exactly because he has 10 other Apostles who say the same thing he did. But was it a conspiracy then, did all the Apostles create a big lie? Well if they did lie, they are both incredibly smart and incredibly stupid. I mean think about it. They were able to convince other people to follow them, even to the point of death, so they must have been really good “liars”. But they also must have been idiots because they didn’t gain anything from their “lies”. Not money, or fame, or women, or anything, except certain death.

    So to me, it seems that they were not lying, and that all of them must have been convinced that Jesus was in fact God. But what do you think?

  • Oops, I tried to put an HTML tag in my message but it didn’t work exactly right. Sorry about that, but you can still click on it and get the article I was trying to reference.

  • Paul also deals with the Jew/Gentile transition in a bit of a different way, I think. Rather than a council, he recommends private conviction. The ‘strong’ are not to pick on the ‘weak’, and neither is to judge or try to change the other in such matters of food, drink, and ceremonial days, etc.

  • Joel, I think Peter has much more cred than Joe Smith given he was a contemporary of Jesus and the apostles, according to the New Testament. Whether Peter or anyone “lied,” I cannot say, but just because many followed him and died as martyrs is not persuasive in and of itself. More than 900 people followed Peoples Temper leader Jim Jones to the grave in Jonestown in 1978.

    What is more convincing, however, is the undeniable magnetism of Christ. i would be willing to admit that Jesus of Nazareth is the most compelling person in all of history and his mark on humanity supersedes all others. I think about him every day. He has said, “come to me all ye who are weary and I will give you rest.” Although I do not pray much any more, that is the one hope I cling to: that I may have rest either in this life or the next.

    Thanks for your kind words.

  • I think what is convincing is that Christianity has lasted as a very significant world religion, and has since grown too. Also, it’s profoundly impacted and shaped cultures right up till the present. I don’t see those kinds of results happen so dynamically in the case of other religions. A few come close, perhaps, but don’t reach the extent Christianity does.

  • Am I right to believe, then, that the prohibitions in Leviticus concerning homosexual practices carry forward to the New Testament?
    That seems to be the case as from what I read and what one priest told me homosexuals found guilty of abominations were being executed right up into the 18th century.
    Please understand that I’m not advocating here for queers to be put to death but rather to genuinely understand what’s going on.
    Patrick Madrid says that Jesus Himself did away with the laws of Leviticus, at least concerning homosexuals, when He said “let him without sin cast the first stone” but how does Jesus’ retort reconcile with my second paragraph if in fact it’s true?

  • If you don’t remove me from moderation I will no longer offer my comments here.

  • Yes they do Michael, especially since Saint Paul repeats the condemnation of homosexual conduct. The Church has always condemned it, as did virtually all Christian churches until the day before yesterday in historical terms.

    Romans of course legislated against sex between free born men as early as the Lex Scantinia, in 225 BC so the Christian attitude against homosexual sex was not sui generis in the ancient world.

    Jesus extended mercy to the woman caught in adultery and saved her from the equivalent of a lynch mob. The act of Jesus in giving mercy to the woman caught in adultery has never been considered as voiding the laws of Leviticus regarding homosexual conduct. Judging from the article linked below by Patrick Madrid I’d say that you have misinterpreted what he wrote. If you would care to link to the article where he made the statement you refer to, I would be happy to look at it.

    http://www.thebostonpilot.com/articleprint.asp?id=7081

  • Pat,

    It was needed in a prior posting.

    You’re back off moderation.

  • Donald, I still have Madrid’s email where he told me exactly what I said he said, so I’m not misrepresenting anything.
    He might’ve changed his tune since he said that to me, but what he said is what he said (I have it in writing) and I find it unfortunate that you would jump to the conclusion that he didn’t say what he said and then ever so subtly put my integrity on the line by saying I misrepresented him.
    That said your reply leaves me even more in the dark as to why the punishment of death for homosexual abominations no longer applies and when it was lifted and by whom.
    I’d be so grateful to get answers to those queries.

  • No Michael what I said was that what you said Madrid wrote appears to contradict what he wrote in the article I linked to and therefore I assumed that you must have misinterpreted what he wrote. Post what he said to you in the e-mail and I will look at it. I will go farther than that. If there is a contradiction I will send off an e-mail to Mr. Madrid asking him to comment. I do not know how I can be fairer than that.

    In regard to homosexual conduct the penalties were always in the hands of the state and not the Church. The death penalty for all sorts of offenses was much more common in the Eighteenth Century than in either the Nineteenth or the Twentieth centuries.

  • Looking at that article I linked to by Madrid, I see this paragraph:

    “In the Old Covenant, homosexual activity was punishable by death: “If a man lies with a male as with a woman, both of them have committed an abomination; they shall be put to death, their blood is upon them” (Leviticus 20:13). Thankfully, in the New Covenant, that punishment no longer applies, but the Church reminds us of the much worse eternal punishment that awaits those (whether homosexual or heterosexual) who refuse to repent and turn from their sins.”

    If he is saying that Christians did not use the punishment of stoning, he is correct. I think there is nothing in that stating that the condemnation of Leviticus as to the conduct was not still in full force and effect, but that death by stoning was no longer required as a penalty. If your point Michael was Madrid stating that the penalty was no longer as set forth in Leviticus then what you are stating is correct. Of course the secular authorities were free to assess any penalty they wished to under the criminal law.

  • Donald moving on from Madrid what I am getting at is this.
    If Iran or any Muslim country for that matter were to put a queer to death for an abomination, in your opinion would Catholics and Christians, generally, be justified, perhaps even compelled to support what Iran did using Leviticus as their grounds since, as you confirm, Leviticus carries forward into the New Testament?

  • In thinking about the original post more, it dawned on me that Jesus himself laid the ground work for the Apostles to teach what they taught at the council of Jerusalem.

    Matthew 15:11 “Not what goes into the mouth defile a man, but what comes out of the mouth, this defiles a man.” See verses 10-20 also.

    So this is good reason to reconsider the defilement laws of the Old Testament. But does that mean that the New Covenant was entirely replaced by the Old? Did Jesus ever say that homosexuality is not wrong? Not in so many words, but he did say this:

    Matthew 19:4-6 “Have you not read that he who made them from the beginning made them male and female, and said, ‘For this reason a man shall leave his father and mother and be joined to his wife, and the two shall become one’? So they are no longer two but one. What therefore God has joined together, let no man put asunder.”

    This clearly reaffirms that God created male and female, who are intended to be together. Also, if anyone is interested in what it means for the “two to become one” I would recommend the book “The Good News About Sex & Marriage” by Christopher West.

    @ Michael: Your questions regarding when crimes punishable by death were lifted, was clearly in John 8:7, “”Let him who is without sin among you be the first to throw a stone at her.” So if there were people still stoning homosexuals, they were wrong to do it. But can you be specific? Was there ever a Church document put out that said to stone homosexuals? When and where are you talking about when you say “right up until the 18th century”? The more information you can give, the better the answer you will get 🙂

  • “perhaps even compelled to support what Iran did using Leviticus as their grounds since, as you confirm, Leviticus carries forward into the New Testament?”

    No. Christians agreeing that particular conduct is sinful does not require support for a secular punishment of that sin. That has never been taught by the Church.

  • Plato: “Opinion is not truth.”

    T. Shaw: “Opinion is not reality; but you have a right to stick your fingers in your ears and feverishly stamp your feet.”

    Here is a list of the “sins which defile the land,” the Old Testament laws and were enforced for non-Jews, or they were “cut off from the community.”
    1. Exod 12.19: Do not eat leaven at Passover
    2. Lev 17.8-9: Only offer sacrifice at the Tabernacle door
    3. Lev 17.10-12, 14: Do not eat blood
    4. Lev 18.26: Do not commit sins listed in 18.6-26 (including homosexuality)
    5. Lev 20.2-3: Do not sacrifice children for Molech

    The Council of Jerusalem decided to admit Gentiles to the Church on condition (Acts 15:29):
    • Do not eat things polluted by idols (#2 & 5 above)
    • Do not commit porneia (sexual immorality) (#4 above)
    • Do not eat whatever has been strangled (#3 above)
    • Do not eat blood (#3 above)

  • Wonderful commentary. I always look at the Council of Jerusalem as a fulfillment of Matthew 16 and 18 and John 20. Peter and the Apostles where given the authority to bind and loose. In the Counsel of Jerusalem two fishermen and ex Pharisee overturned Law given to us by God through Abraham and Moses. The only way they could do that was if they were given authority by God. What ever they bind is bound, what ever they loose is loosed. The Church is the hand of God in the Church Militant, if they say do it you better do it, if they say you don’t have to do it then you shouldn’t do it. It seams pretty simple to me. It all comes down to authority, those that follow this teaching are Catholic those that go against this teaching are Protestant no matter how they actually refer to themselves.

  • Thank you, Tito. I’m aware that there are a variety of ways to view the council, what its import is for the church down through the ages. I don’t think it’s correct to view all councils as binding, since the test for me is whether it squares with scripture. If it squares with Scripture, then I consider it Spirit-inspired. It’s an application of the Bible within a particular context in that case.

  • I was not going to reply back to this, because I know it does not relate to the original post, but it is all I have been thinking about.

    Joe said: Joel, I think Peter has much more cred than Joe Smith given he was a contemporary of Jesus and the apostles, according to the New Testament. Whether Peter or anyone “lied,” I cannot say, but just because many followed him and died as martyrs is not persuasive in and of itself. More than 900 people followed Peoples Temper leader Jim Jones to the grave in Jonestown in 1978.

    I agree that Peter has more credibility than Joe Smith. I think we can know whether Peter or the Apostles were lying (at least with as much certainty as anything else we can know). But your comparing the followers of Jim Jones to the followers of the Apostles is not exactly the same. Those people apparently committed suicide (although who knows how many really knew what they were drinking?) while the Apostles and their followers were killed by other people. This is significant because all the Apostles or their followers had to do was recant their beliefs and they would have been spared. This is a crucial difference when we take into consideration what I was saying before, about did the Apostles lie about Jesus’ resurrection or did they tell the truth. Why would all 12 Apostles and Paul lie about Jesus being resurrected? What did they have to gain? I can see why someone like Joe Smith would lie, he had lots to gain (money, power, polygamy). Or Jim Jones can be explained with a simple: he was crazy and found other crazy (or easily convinced) people to follow him.

    But then could Jesus have been crazy and have found 12 crazy people to follow him? Well we have to ask ourselves, did Jesus rise from the dead? Either yes, which means he is God, or no. If no, then those 12 crazy Apostles decided to lie about the resurrection. Then we are to believe that all 12 crazy Apostles (and Paul came along a bit later) all worked together and were able to create what has to be the greatest conspiracy of all time. I mean think about it. All it would have taken to destroy the “lie”, would have been for just 1 of the Apostles to spill the beans. Yet we have no record of this happening. Why would Paul have done his ‘180’ and converted to Christianity? He had a great life and yet we are to believe that he “threw” it all away for a lie, but to gain what?

    So for me (I was once agnostic when it came to God, but it was thinking about this stuff that got me started down the proverbial rabbit hole) it is exactly because the Apostles had nothing to gain and they all remained united in their beliefs even to the point of death, that I can be sure that Jesus rose from the dead. (There are other things to further support the belief that the Apostles were not all lying: Peter having the title of First Apostle and the special place he has [why did no one else fight him for this], the unity of all the early church’s [they were all considered One Church, but how easy it would have been for say Thomas to go out and create his own church] etc.).

    What is more convincing, however, is the undeniable magnetism of Christ. i would be willing to admit that Jesus of Nazareth is the most compelling person in all of history and his mark on humanity supersedes all others.

    I am not sure exactly how “magnetic” Christ was? Obviously people sought him out, but it seems to me that it was more because of the miracles that he was performing. Obviously we view him as a great teacher, but many viewed his teachings as heretical and blasphemous. Read John Chapter 6, first he feeds the five thousand, but the next day he taught them about the Eucharist and said that to be saved they had to eat his flesh. John 6:66 says, “After this many of his disciples drew back and no longer walked with him.”

    But what really sets Jesus apart from all other “prophets” or “great teachers” is the claim that he rose from the dead which would mean that he is God made flesh. Once I had accepted that, then I could move forward with understanding the Scripture. Otherwise, a person just thinks Jesus was a great teacher, then the Bible is really confusing and actually doesn’t make sense. The Early Church fathers used to say, “Either Jesus was God or he was a crazy man.”

  • Joel, I’ve heard the “either crazy or God” argument before, used I think by CS Lewis. But there’s a lot of in-between. Maybe Jesus truly believed he was the Son of God, a self-delusion alluded to in “The Passover Plot.” Perhaps, egged on by his followers, he reluctantly assumed the role. There are some ambiguous passages in the NT: “Why do you call me good? Only God is good.” “The father is greater than I.”, etc.

    If the Apostles stuck with him to the end, willing to be martyred, they would hardly be the first to follow their leader to the grave, as I mentioned before. The Japanese samurai did it routinely, as did countless soldiers in battle. What did the apostles have to “gain”? Who knows? Maybe the assurance of an after-life from their master was enough, maybe they were just resigned to their fate. Renouncing Jesus likely would not have gotten them off the hook. Peter was going to be crucified one way or another for defying Roman authorities.

    I don’t rule out returning to the fold some day; but at this juncture I have too many burning questions, too many problems and issues with God to submit. Not the least of which is the age-old “problem of evil,” which has always been a huge hurdle for many wanting to believe. The failure of prayer is another. I have seen the righteous pray constantly for others, only to see their prayers unanswered. Innocents die, the wicked live on. Life is not fair. God is the author of life. God is not fair. That is my thinking. I can’t change it until I understand.

  • Joe, numerous theodicies have of course been written and nothing new can be said on the matter. Here’s my take based on my reading of the Bible: God created a perfect world. We became wayward. He calls us back to Himself but we continue to have a certain amount of free-will. As it’s exercised, this free-will is often used sinfully, which affects ourselves and others. The Lord deals with that on a higher level. But he doesn’t intervene so far as to eliminate that free-will with the entirety of results which follow. If He did, there would be grave problems for us philosophically. For example, are we not creatures endowed wtih choice-making ability? Does not God love us and wish us to respond in kind? If the answer to either or both those questions is negative, we are then faced with an even more difficult quandary.

  • Joe, please forgive this following. I’m just getting concerned about you.

    “What did the apostles have to “gain”? Who knows? Maybe the assurance of an after-life from their master was enough, maybe they were just resigned to their fate. Renouncing Jesus likely would not have gotten them off the hook.”

    The Holy Spirit on Pentecost visited them in the Upper Room, a visit that became the Catholic Church’s birthday. I wish for you such a visit – being sort of worried about your spiritual state of affairs.
    That old problem, Satan, is part of this vale of tears until the last day when Jesus comes back as promised. Our part is to strive to reach the fairness of God in eternity through virtues taught by Jesus, in the Gospels. Life isn’t fair, prayer lets God know us, we can’t tell Him what to do; but, I have to think that nothing we do without trying know Him is a waste of the time we have here. Please just don’t judge God as not fair, and shoot for understanding. You can get past your judgment.

  • Joe, I can see you have thought about this and are continuing to struggle, which is good.

    I would say though that the main point to consider is: did Jesus rise from the dead? If that question can be answered, then so many more will follow like domino’s.

    If he did, then obviously he is God. Which then answers the question as to why the Apostles would stay true to their beliefs.

    If he didn’t, then the Apostles lied about it. These 12 men must have had some reason for lying. What that reason would be, completely escapes me. The Apostles would have realized that their leader was dead. Their two options would have been to go home or pretend Jesus came back to life. Amazingly then, all 12 decided to take option number 2 and lie. Then even more amazingly they all continued to lie right up until their deaths. Who would do that? What are the chances that even one of them would not have said the heck with this, I am going home? And then their was Paul, who joins their ranks, but not like we would expect. He was doing quite well for himself, but he apparently threw it all away and joined the Christians. Why? I could understand if Paul had been given something (money, power, etc) but he had nothing. He was put in jail numerous times and was obviously going to be killed eventually. Are we to believe that he lied about Jesus blinding him on the road to Damascus?

    I know I can’t prove any of this to be 100% true, but when I consider the most likely scenario, 12 crazy apostles that lied just doesn’t seem plausible. So this leaves me with the first choice, that Jesus did rise from the dead.

    I am glad that you have engaged with me in this conversation because it helps me to grow in my faith when I have to explain what I believe and why. A lot of the atheists and agnostics I try to talk to just brush religion off as fairy tales that shouldn’t even be discussed because they feel as though nothing can really be proven. I obviously feel the opposite. I think that Christ and his Apostles can be proven in as much as we can weigh the different scenarios and believe the most likely one from the evidence. The final step is having faith, but it really becomes the same faith we have that the sun will rise tomorrow or faith in “what goes up, must come down”.

  • Joe Green,

    The apostles were not soldiers looking to take other lives with them like Muslim “martyrs” do.

    The apostles willingly went to their death peacefully and forgiving their persecutors.

    THAT is huge.

    Using your line of logic, can you convince 12 of your closest friends to die for a lie?

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SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

Wednesday, May 12, AD 2010

I read a comment[1] a few weeks ago on GetReligion.org attempting to explain why John Paul Stevens was the last Protestant in the U.S. Supreme Court which simply said that Catholics and Jews have a tradition of being immersed in law (Canon Law and Halakha respectively for Catholics and Jews as an example).

This struck me as interesting because at first glance it kind of makes sense.

Of course there is much more to why the current make-up of the U.S. Supreme Court, 6 Catholics, 2 Jews, and an Episcopalian, is as it is.[2]

But I thought it was an interesting enough topic to dive into.

Lisa Wangsness of the Boston Globe chimes in with her two cents worth [emphases mine]:

Evangelical Protestants have been slow to embrace, or to feel welcomed by, the elite law schools like Harvard and Yale that have become a veritable requirement for Supreme Court nominees. One reason for this, some scholars say, is because of an anti-intellectual strain within evangelicalism.

As Ronald Reagan would say, there you go again, pushing the liberal theory that Christians are stupid (at least Evangelical Protestants).

Lets get beyond these stereotypes done by liberals to Christians.

Continue reading...

47 Responses to SCOTUS: 6 Catholics, 3 Jews, Law, Scholasticism and Tradition

  • The legalistic traditions would be the most obvious theory but I suspect that it’s too abstract to have this disparate an impact. Besides, sola scriptura is much closer to the originalism of the four conservative Catholic justices. The living Magisterium is more analogous to the living constitution that they reject.

    The anti-intellectual strain within evangelicalism makes sense. Part of it may also be that Catholics make more reliable conservative judges and are therefore more appealing Republican appointees but I bet Catholics are overrepresented in the general lawyer population as well.

    Maybe religion is actually hiding an ethnic cultural difference. The legal field was one of the few fields that was relatively tolerant of Jews which is at least partially why they are overrepresented. Maybe anti-Catholic or anti-immigrant sentiment drove the Irish, Italians, and now the Hispanics into law.

    Maybe religion is hiding a regional difference. Five of the justices are from New York, two from California, and one from New Jersey. New York and California are the two biggest lawyer markets. They also happen to have the largest Catholic and Jewish populations. I can’t speak for California, but every ambitious New Yorker wants to be either a lawyer or a banker (another field where Jews, and maybe Catholics, dominate).

    Maybe Catholics and Jews can’t be lumped together. Maybe Jews are overrepresented for historic reasons and Catholics for religious reasons.

    Protestants do have their colleges, seminaries, and Bible study groups, similar to those of Catholics.

    But their emphasis is very different. I’ve heard one Protestant accuse Catholics of being too mechanical in their religious studies.

    Ironic that people got all hot and bothered when the fourth and fifth nominees for the SCOTUS were Catholic’s thus over-representing Catholics in the Judicial branch. But somehow the secularists are excited that the current nominee, Elena Kagan, a Jew, would make SCOTUS 1/3 Jewish.

    They were hot and bothered because Roberts and Alito were conservative Catholics. They had no problem with Sotomayor.

  • Let’s get beyond liberals. Liberals only have insults and lies; and fabricated/imagined crises meant to “grease the skids” for their destructive policy “solutions.”

    If we don’t stop Obama and his horde of liberal idiots (I repeat myself) in congress, and soon the Judiciary, they will cause a degree of economic devastation from which the private sector may never recover.

    Then, they will have succeeeded in making us all serfs, which was their (the two or three that aren’t gays/lesbians/puppy-lovers/morons) plan all along.

  • I take issue with the notion that the conservative justices’ approach is similar to “sola scriptura” and that the “living Constitution” approach is analogous to the living Magisterium.

    Instead, I would say the two approaches to the Constitution are rather more like the difference between how a traditionalist Catholic and a Voice-of-the-Faithful Catholic view the Magisterium.

    Conservative jurisprudence does not reject development in the law; conservative jurisprudence recognizes that the world today is different from the world 200 years ago and that matters will arise that were completely outside the imagination of the Framers. However, conservative jurisprudence also recognizes that developments in the law (1) are better suited to be addressed by legislative bodies rather than courts, and (2) to the extent the courts must develop constitutional doctrine to meet modern challenges, the development must be (a) an organic extension of the rights and values traditionally held by society and (b) be bound to the text of the Constitution as originally enacted and intended by the Framers.

    Justice Scalia famously discussed this view in the Michael H. case, in which a putative father (from an extra-marital affair) sought to use the Court’s “substantive due process” jurisprudence (see, e.g., Griswold and Roe) to overturn a state’s codification of Mansfield’s Rule, which protects the children of a marriage from outside claims of paternity. Scalia, in his majority opinion, attempted to limit the extension of “substantive due process” to those instances where society had traditionally protected such rights:

    1. The § 621 presumption does not infringe upon the due process rights of a man wishing to establish his paternity of a child born to the wife of another man.

    […]

    (b) There is no merit to Michael’s substantive due process claim that he has a constitutionally protected “liberty” interest in the parental relationship he has established with Victoria, and that protection of Gerald’s and Carole’s marital union is an insufficient state interest to support termination of that relationship. Michael has failed to meet his burden of proving that his claimed “liberty” interest is one so deeply imbedded within society’s traditions as to be a fundamental right. Not only has he failed to demonstrate that the interest he seeks to vindicate has traditionally been accorded protection by society, but the common law presumption of legitimacy, and even modern statutory and decisional law, demonstrate that society has historically protected, and continues to protect, the marital family against the sort of claim Michael asserts.

    Scalia explains further:

    In an attempt to limit and guide interpretation of the Clause, we have insisted not merely that the interest denominated as a “liberty” be “fundamental” (a concept that, in isolation, is hard to objectify), but also that it be an interest traditionally protected by our society. [Footnote 2] As we have put it, the Due Process Clause affords only those protections “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934) (Cardozo, J.). Our cases reflect “continual insistence upon respect for the teachings of history [and] solid recognition of the basic values that underlie our society. . . .” Griswold v. Connecticut, 381 U. S. 479, 381 U. S. 501 (1965) (Harlan, J., concurring in judgment).

    This insistence that the asserted liberty interest be rooted in history and tradition is evident, as elsewhere, in our cases according constitutional protection to certain parental rights. Michael reads the landmark case of Stanley v. Illinois, 405 U. S. 645 (1972), and the subsequent cases of Quilloin v. Walcott, 434 U. S. 246 (1978), Caban v. Mohammed, 441 U. S. 380 (1979), and Lehr v. Robertson, 463 U. S. 248 (1983), as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship — factors that exist in the present case as well. We think that distorts the rationale of those cases. As we view them, they rest not upon such isolated factors but upon the historic respect — indeed, sanctity would not be too strong a term — traditionally accorded to the relationships that develop within the unitary family. [Footnote 3] See Stanley, supra, at 405 U. S. 651; Quilloin, supra, at 434 U. S. 254-255; Caban, supra, at 441 U. S. 389; Lehr, supra, at 463 U. S. 261. In Stanley, for example, we forbade the destruction of such a family when, upon the death of the mother, the State had sought to remove children from the custody of a father who had lived with and supported them and their mother for 18 years. As Justice Powell stated for the plurality in Moore v. East Cleveland, supra, at 431 U. S. 503:

    “Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”

    Thus, the legal issue in the present case reduces to whether the relationship between persons in the situation of Michael and Victoria has been treated as a protected family unit under the historic practices of our society, or whether, on any other basis, it has been accorded special protection. We think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts. [Footnote 4]…

    That’s hardly a “sola scriptura” approach to jurisprudence and, in fact, I would argue that Scalia was relying upon his own Catholic understanding of the Magisterium in formulating that approach.

  • Thanks, Jay, for beating me to it. I owe you.

  • Ditto what Mike said. I’ve written that comment before (although probably not as well).

  • Three comments:

    First, I would not dismiss the existence of an anti-intellectual strain within evangelical Protestantism as mere liberal rhetoric. Certainly there is some of that, but the anti-intellectualism in evangelical Protestantism is well documented, especially by scholars such as Mark Noll, who is himself an evangelical Protestant. It is a part of evangelical Protestantism that many adherents are putting aside, but its historical existence could be a factor.

    Second, we can’t ignore social trends. Mainline Protestantism has been declining in numbers and influence for some time. The lack of mainline Protestants that “percolate up” to the upper echelons of the law is a consequence of that. At the same time, Catholic numbers and influence increased during the same decades. Also, Catholics and Jews during the last century emphasized education, assimilation, and becoming part of the “establishment.” That too, had implications. I would expect the same to happen with evangelical Protestants in the decades to come.

    Third, both Jewish and Catholic teaching has not emphasized, as much as mainline Protestants, a radical separation of church/state and politics/religion. Mainline Protestants, some have argued, emphasized it so much that they made religion irrelevant in the public square.

  • It’s not a perfect fit but there are elements of originalism that more closely resemble sola scriptura. Sola scripturists would also agree that the world is different today. Jay, I don’t think anything you said is inconsistent with sola scriptura.

    It’s funny you mention Michael H. I was just rereading my notes on the case a few days ago. None of the justices objected to Scalia’s view to traditional rights. Brennan’s dissent also looks to traditional rights. But a majority didn’t join Scalia’s footnote 6 for a very different reason. I, along with most the justices, think he’s wrong in his application, if not his approach. Contrary to his assertion that broader classes are more susceptible to conflicting interpretations, Scalia’s approach allows judges to pick conflicting specific classes. Scalia puts Michael H. in the class of “cheating fathers.” One can also place him in the class of “biological fathers.”

  • No, Scalia does not place Michael H. in the class of “cheating fathers”; he places him in the class of those who society and the law don’t want breaking up intact families by challenging the paternity of the children within those families. He’s unwilling to create out of whole cloth a “fundamental right” to do something that society has not traditionally seen fit to give sanction.

    And while one may also place Michael H. in the class of “biological fathers”, that says absolutely nothing regarding the “fundamentalness” of his “right” to have Mansfield’s Rule struck down as unconstitutional. And that’s what’s at stake. The liberal would throw out a centuries old common law rule over some imagined “fundamental right” to claim the child of an intact marriage as one’s own. That’s not akin to a “development of doctrine” – that’s changing the rules to suit one’s own personal view of how the law SHOULD be and fits more in line with how the VOTF crowd view the Magisterium.

  • Furthermore, the reason the “sola scriptura” analogy is inapt is because it an ahistorical reading of how originalists have actually behaved on the Court.

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    The originalist, in contrast, doesn’t reject authority or tradition or developments in the law that have occurred in the intervening years since the founding. The originalist doesn’t seek to “refound” the American republic as it existed in 1787. In fact, the originalist approach to jurisprudence is actually quite limited in scope by comparison to the Protestant Reformation and the approach of the “sola scriptura” practitioner.

  • Jay,

    Protestants whose approach to religion is based on “sola scriptura” reject authority and tradition as having any sway over how they apply their Faith to their lives. They reject developments in doctrine (even while unconsciously accepting such developments as the Trinity and the compilation of the Bible itself). The “sola scriptura” mindset – especially when it is of the fundamentalist variety – is a back-to-the-basics approach with only the Bible and the Holy Spirit as a guide.

    Thanks for fleshing out what I said in one sentence.

    I’m no law expert nor a lawyer, but I too could see that sola scriptura was an impediment towards doctrinal development for Protestants.

    And with that, originalsim and sola scriptura have no similarities with the respect to doctrinal development.

    Also appreciated your first comment as well…

  • Finally, let’s be honest about why those Catholics opposed to Constitutional originalism try to stigmatize it with the taint of “sola scriptura”: they know that most Catholics, especially conservative ones, take a dim view of “sola scriptura” in the context of theology, so they use the analogy to paint Catholic constitutional originalists as unthinking (in relying on the same intellectually inferior practice as protestant fundamentalists) and/or hypocritical (in doing to the Constitution what they criticize the protestants for doing to Christianity).

    The problem, as I’ve noted above, is that the analogy is inapt. But it is inapt not only because it fails to describe what originalists actually believe and how they actually behave, but because it is a comparison of two completely different institutions established for two completely different reasons and under two completely different sets of circumstances.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

  • Jay, I see that you are anticipating in advance the charge of being trapped in a Calvinist (and very Protestant) dualism by virtue of defending originalism. But you cannot escape; in order for the intellectually cramped Calvinist-Catholic dualistic system to work, any disagreement must be described as an outgrowth of individualism/Calvinism/liberalism.

  • Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    I am not sure how true that is. I have friends and co-workers who are evangelicals that went to Harvard Law, and the Christian (not Catholic) law student group at my school (t-10 or so) was fairly sizable and active. But, of course, these anecdotes don’t really add up to data. You could be right about the general trend.

  • I’d consider myself a Catholic originalist. Sola scriptura (or some weak version of it) can be an perfectly defensible way to interpret the Constitution but not Scripture.

    Originalists reject any develop of new doctrines not grounded in the law as understood at the time of its enactment. They accept tradition only up to the point of enactment. They do not accept the idea that later traditions that could not reasonably be anticipated, can add to the law. On the other hand, Catholics accept that later traditions can add to existing “law” in ways that could not reasonably have been anticipated.

    Even the process of development differs. Originalists reject abstract unifying doctrines and prefer to judge new situations as fitting or not fitting into specific laws or enumerated rights. Catholics, I would argue, work in the opposite direction. Starting with abstract unifying doctrines (e.g., dignity of man), then judging whether the situation falls within an exception (e.g., double effect).

    As for the Michael H. sidetrack, Jay, you demonstrate exactly why Scalia’s methodology is wanting (I’d like to note that this is a different argument than the one over originalism). I described Scalia’s classification of Michael H. as a “cheating father.” You described it as “someone trying to break up a stable family.” Which one are we supposed to use? You also dismissed the implications of classifying Michael H. as simply a “biological father.” Traditionally, biological fathers have rights over their biological children. An appeal to tradition doesn’t work here because both sides can, and did, argue it. If Scalia’s methodology is correct, it’s incomplete, at the very least.

  • Centinel, you wrote:

    Evangelical Protestants who take their faith seriously go to any law school they can find that’s conducive to their faith. Catholics just go to the highest-ranked school that will take them – even if that school is not particularly religious. Of course, I am speaking in general terms.

    That goes beyond generalization, friend. Generalization, philosophically, means abstracting a feature true of each instance of a class, e.g., “Houses have roofs.” Generalization, popularly speaking, means abstracting a feature true of most or even many instances of a class, e.g., “The students at Catholic University are Catholics.”

    What you’ve managed to do is pluck out of a bag of prejudices and biases a dazzling example of complete ignorance EXCEPT of perhaps one or two cases that you know, and a few more that you know of.

    I am close friends with a woman who, as an Evangelical, went to Yale Law School because it was “the highest-ranking school that would take” her, to use your words. Not too shabby. Granted, it’s not the University of Barbados, but I suppose Yale Law will do for her sort. She’s a Catholic now, though. Did you know that there are numerous law schools at Catholic universities bursting at the seams with… all sorts of people?

    Do you think it possible that Catholics might be serious about their faith and go to a law school conducive to it?

    Do you think it possible that an Evangelical might be serious about his faith and yet go to an ungodly school bearing in mind that it is not the law school’s job to nurture his faith, and that he will continue to seek spiritual nourishment through the means he always has – prayer, reading the scriptures, attending a good church?

    C’mon. Your “observation” was entire facile.

  • “Traditionally, biological fathers have rights over their biological children.”

    Not biological fathers who aren’t married to the child’s mother. That’s a very recent development.

  • And I’m sure you’ll say that my last comment illustrates your point about classifications.

    But there will always be classifications when talking about defining rights under the Consitition. The key is to find the classification that does the least amount of damage to the constitutional order, and this is done by limiting the interference of the judiciary into the democratic process by defining the “fundamental right” narrowly enough as not to remove a broad category of activities from democratic oversight (not to mention creating out of whole cloth “rights” that have no basis in the text of the Constitution).

    Scalia’s appeal to tradition is to look at the behavior that society has traditionally valued and protected and determine whether the particular case before the Court meets – with specificity – the activity society has sought to protect.

    The liberal will look at “tradition” and try to broadly define the activity that is “fundamental” to ordered liberty so as to include as much activity as possible and remove it from the democratic process. Thus, Brennan et al looked at Michael H. as a “biological father”, and relying on some very recent precedent (and ignoring other recent precedent – i.e. that “biological fathers” have very few if any rights when abortion and birth control are at issue), tried to make the argument that he had a “fundamental right” to interfere in the inner workings and relationships of an intact family unit.

    What’s “traditional” about that? Nothing. Maintaining Mansfield’s Rule was based on tradition – the tradition of protecting the family, as society has sought to do for generations. The Court’s “fundamental rights” jurisprudence – of very recent vintage – regarding a biological father’s “reproductive rights”, not so much.

  • While not remotely an expert on law, the sociological/historical aspect interests me in regards to biological fathers’ right. It seems to me that the accurate characterization would be that in Western Culture, a biological father can assert paternity rights over illegitimate offspring by effectively “legitimizing” or recognizing them. This, however, assumes that the illegitimate offspring are otherwise simply “fatherless” and unacknowledged.

    The rights of the pater familias as a husband typically include having paternal rights over all children he chooses to acknowledge. So if his wife bears a child which is not, in fact, his, he can effectively make the child his by acknowledging the child as his regardless of actual paternity.

    The idea that a biological father could assert paternity rights over a child he fathered on a married women over the objections of her husband (who is willing to raise the child as his own) would be distinctly un-traditional.

  • Darwin,

    You’re right. It IS distinctly un-traditional. And for over 200 years, under Lord Mansfield’s Rule, such claims cannot be heard.

    Okay, I realize I’ve dominated this thread, so just one last thing on the classifications in Michael H. and how they relate to “tradition”:

    As Restrained Radical notes, both Scalia and Brennan appealed to “tradition” in reaching opposite conclusions in the case. However, a closer examination of the arguments and what respective “tradition” was being sought to be preserved by the opposing Justices, will reveal that one of the Justices was ACTUALLY concerned with remaining faithful to and preserving an established tradition, while the other Justice’s feigned appeal to “tradition” was a complete load of BS from one of the most successful bu11$h**tters who ever sat on the Supreme Court.

    Let’s start off with the fact that the rights of “biological fathers” – the “tradition” to which Justice Brennan appealed – are, as I noted above, a recent development in the law, and there is no long-standing “tradition” of “biological fathers” having legal rights over their offspring outside the context of the marital relationship. Even the parental rights of divorcing parents have always been based on the fact that the parents were married in the first place.

    So, let’s dispense with Brennan’s nonsensical claim that he was appealing to “tradition” and cut right to the chase. Were one to follow his constitutional jurisprudence to its logical conclusion, here’s Bill Brennan’s take on the “rights” of biological fathers:

    * A “biological father” has absolutely NO LEGAL RIGHTS to protect the life of his child should the mother choose to abort the child; HOWEVER …

    * A “biological father” has a “fundamental constitutional right” to interfere in an intact marital family relationship by asserting paternity over a child born inside that marriage should the mother choose to raise the child with her husband.

    * A “biological father” has a “fundamental constitutional right” that overrides an over-200-year-old common law rule – a common law rule known to and explicitly accepted by the drafters of the Constitution – meant to protect marriages from outside attack and children from bastardization.

    That’s Bill Brennan’s definition of “tradition”.

    On the other hand, under Justice Scalia’s approach, here is the state of the law:

    * an over-200-year-old common law rule that was on the books at the time of this Nation’s founding is preserved;

    * the sanctity of the marital family unit is preserved from outside interference by claims from a stanger to that marriage that he is, in fact, the father of a child born to that marriage;

    * the original intent and meaning of the text of the Constitution is preserved from the violence done to the constitutional order whenever a newly created “fundamental right” is used to strike down as “unconstitutional” a law that was fully known to and explicitly acctepted by those who drafted the Constitution.

    Now, which one of those approaches is TRULY concerned with tradition?

  • Personally, I always thought the tradition of offering sympathy to orphans should have helped the Menendez brothers

    😉

  • Jay, your putative domination of this thread has enriched it, and is greatly appreciated at least by me.

  • Agreed, I’ve enjoyed your explanation on this stuff, Jay.

  • I spend the day in Bankruptcy Court and Jay leaves me nothing to say in regard to Constitutional interpretation. Rats! Ah well, I will merely say ditto to what Jay wrote and what Scalia says below:

  • Donald,

    I liked his Chestertonian quote:

    “Some worth doing, is worth doing terribly.”

    Or something to that effect.

  • I should’ve stated this early but I don’t necessarily disagree with the outcome of Michael H. And I do think originalism is the proper method of analysis (while I still maintain this is closer to sola scriptura). I only take issue with Scalia’s method of abstraction outlined in footnote 6. He defines classes that need not be defined in that way.

    Jay & Darwin, it all depends on how you’re defining the tradition and the specific case. The children of a married woman have traditionally been presumed to be the biological children of the husband. Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.

    Again, I’m not saying that’s right. Only that the very existence of what I think is an alternative reasonable interpretation, undercuts Scalia’s approach.

  • Don, that was a great vid. It would be interesting to see a liberal originalist on the court. Lawrence Lessig, a liberal and a broad originalist, says Kagan thinks as he does. I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer. Perhaps even more important than overturning Roe is changing the way liberals view abortion.

  • “Is Lord Mansfield’s Rule designed to protect the husband or the biological father? In the absence of DNA testing, it would seem that it protects the biological father (usually the husband) from spurious paternity claims. Therefore, it appears tradition protects the rights of the biological father. Modern technology has eliminated the need for blunt evidentiary rules.”

    I suppose it provides an alternative interpretation to Scalia’s, but it is one that I believe to be ahistorical.

    The historical record will bear out that Lord Mansfield was primarily concerned with the children of marriages not being made bastards, which is a matter wholly unconcerned with determining actual biological paternity. In fact, it was an objective that was often in direct conflict with determining such.

    Preserving intact marital family units from such challenges was not for the purpose of ensuring that the husband’s factual biological paternity was protected from spurious outside claims, but rather to ensure that children were not delegitimized. For that reason, the law created an irrebuttable presumption that the children of a married woman were the legitimate children of her husband.

  • I suppose, from a sociological point of view, a lot has to do with how you interpret the purpose of established cultural norms. It seems to me that the purpose would clearly be that a pater familias be able to determine who he wants to call his children. If he want to acknowledge children he had by a woman other than his wife, he can. If he want to refuse to acknowledge those children, he can. And when his wife bears children he can either acknowledge them, or repudiate his wife and deny them.

    All this sounds rather negative and “patriarchal”, but it also has the effect of making the direct and extended family strong against outside assaults. Good or bad, though, I think it’s hard to deny that it’s “traditional”.

  • “I doubt it but if true, not only would Kagan be the most influential justice, it would also alter the course of American jurisprudence. I’ve believed that the best kind of judicial nominee would be a liberal pro-lifer.”

    I doubt restrainedradical that Kagan will be anything but an orthodox political liberal on the bench. However, the fact that she has no judicial experience on the bench should give her backers pause. Felix Frankfurter, the great advocate of judicial restraint, was a fairly conventional political liberal before he was appointed to the Supreme Court by FDR without judicial experience. Things can look quite differently after one dons the black robe, especially with a life time appointment, and Kagan, perhaps, could end up surprising everyone.

  • I would be astonished if Kagan does not prove to be “anything but an orthodox political liberal” cleverly legislating from the bench whey “necessary.” But I’m prepared to be astonished, and certainly hope that I am.

    In any event. I hope the confirmation process is a smooth one. I’m all for hardball politics, but Kagan is qualified and that should be the end of it. The Dems viciously changed the rules with Bork, and I believe that the temperament within the Senate has never been the same. I’d like to see the Republicans avoid scoring political and polemical points and just plain do the right thing.

  • I agree Mike that the Kagan nomination is not the one for the Republicans to put up a fight on, but one of the main reasons why the Democrats routinely engage in scorched earth tactics in regard to Republican judicial nominees is because the Republicans routinely fail to do the same to Democrat nominees.

  • Fair enough, Don, but it is worth remembering that both Roberts and Alito got through without the Dems resorting to scorched earth practices, which is not to say that they behaved perfectly. I’d rather try to ratchet the practices back to how they are supposed to work. I acknowledge that it is a judgment call as to whether exhibiting good behavior or returning bad behavior is the most effective way to do that.

  • In regard to Alito Mike the Democrats tried but failed to filibuster his nomination. The final vote for his confirmation was 58-42 which is astounding if one of the chief criteria is supposed to be judicial comptence.

    Obama of course voted against confirmation for both Roberts and Alito, two of the best qualified jurists ever nominated to the Supreme Court.

  • Forgot that, Don, thanks. I’d still support Kagan’s nomination, but would also score points by emphasizing the contrast between her treatment and that of Alito, and get lots of digs against Obama for voting against Alito and Roberts.

  • Roberts was confirmed 78–22. He got far more Democratic votes than Sotomayor got Republican votes. Alito had the misfortune of being second. Kagan has the same problem.

  • Wow. Such deep arguments!

    Still, I think a lot of folks are overthinking this situation. A president seeking a pro-life perspective on the high court appoints a Catholic. Another president seeking some pro-life cover also appoints a Catholic. Presidents who seek a reliably pro-abortion leftist or wish to appease leftist elements of their party often appoint a Jew.

  • Restrained Radical,

    There’s no comparison, democrats are far more emotional and vindictive when it comes to voting against well-qualified judges that happen to seem conservative.

    Case in point, Robert Bork who lost the nomination 42-58.

  • The Bork confirmation process was unprecedented. It broke with longstanding Senate tradition, and frankly the Senate has not been the same since. The Dems broke the rules and lied shamelesslessly while doing it. Mutual rancor, payback, and distrust have been the order of the day since.

    While not unopinionated, I am not given to immoderate commentary. In fact I sign my real name as a matter of self-discipline. But let there be no misunderstanding or doubt: Joe Biden made his bones in the Bork hearings and behaved like a consummate dirtbag. I expected such dishonest behavior from the cowardly Senator from Massachusetts, but this was when Biden showed his true character colors.

    Finally, let’s be clear. When the Left decides to play hard ball, you can ususally count on the subtext being their sacrament of abortion. It started with Bork and Palin has been the most recent manifestation.

  • Bork and Thomas are outliners. People like Bork with long controversial paper trails don’t get nominated anymore. And Thomas had to deal with Anita Hill. I don’t think either party has a monopoly on outrage. As I noted before, Roberts had an easier confirmation than Sotomayor who in turn will have had an easier confirmation than Kagan. I predict Kagan’s confirmation to be similar to Alito’s. Four Democrats voted for Alito. I predict 2 or 3 Republicans will vote for Kagan (Snowe, Collins, and maybe Brown).

  • It’s a straw man.

    Bork had the most difficult.

    You can continue to apologize for your democratic party, but facts are facts.

  • While, I do not disagree with the overall thesis expressed herein. I find the characterization of Reform and Hasidic Judaism to be off the mark. I contend that the divisions within Judaism that they represent a division with Judaism but that these division were the result not of dogmatic differences.

    Rather I view the divisions within Judaism as being similar to the differences that exist between religious orders with Catholicism.

    In the sense that each religious order agrees on the truth of the dogma espoused by universal church, their missions differ,and as a result there may exist minor differences within their devotions and practice.

  • Nathan Zimmermann,

    I would like to default to your position because I know very little about Judaism.

    But when I see “conservative” and “reform” Jews advocate for the death of the unborn in absolute violation of the Ten Commandments and then I see “orthodox” Jews express identical views with Catholics and stand up for the unborn, then your analogy does not seem to fit that of Catholic religious orders.

    Catholic religious orders differ in mission, but adhere completely to the teachings of the Church.

    I don’t believe your analogy falls into that category with all due respect.

  • Mr. Edwards,

    I based my analogy upon my experiences and interactions with the aforementioned communities within my native city where even the conservative and reform Jews tend to be more conservative and pro-life.

  • If the Republicans wish to Bork a nominee Solicitor General Kagan’s nomination may be the best opportunity. If President Obama had nominated Judge Merrick Garland, the ability of the Republicans to Bork the nominee would have proved less tenable because, Judge Garland’ nomination was openly advocated by Senator Hatch.

    As addendum to my two previous posts, and to throw a fox into a hen-house. While there is no doubt of the universal church on the subject of abortion and euthanasia, eugenics and Darwinism.

    It should be noted that there existed a split with the church on the subject of eugenics and Darwinism during the 1920s and 1930’s as is evident in the writings of Rev. Hermann Muckermann, the elder brother of Rev. Friederich Muckermann SJ.

  • Nathan:
    There has never been a split regarding either Darwinism or eugenics in Church teaching properly understood The fact that some Catholic priests and theologians have favored abortion rights, for instance (which of course is still the case) does not in any way impair the fact that the Magisterium has remained consistent, even as it develops.
    I have countless Jewish friends. Sadly I know none who consider themselves of the Reform stripe who favor laws forbidding abortions, even though I know many who claim they themselves would not abort a child.