Public Reason, the Law, and Morality (grappling with postmodernism):

Eugene Volokh has two interesting posts where he takes on the notion that public policy cannot be based solely on appeals to religious dogma. As one of his readers put it, “that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably…." In other words, Volokh disagrees with the assumption that “Reason” must justify public laws and since claims based solely on Biblical Revelation flunk the “public reason test,” they are thus illegitimate public policy grounds. Ironically, in attacking this claim, there is nary a mention of John Rawls, who most famously posited the notion that Volokh argues against.

Volokh’s defense of religious dogma is, also ironically, steeped in a postmodern philosophy. It is ironic because most people associate postmodernism with the Left. But Nietzsche, the originator of postmodernism, was a right-winger. And today, the (East Coast) Straussians are atheists imbibed in Nietzsche who likewise defend (but more zealously than Volokh) fundamentalists’ appeal to Revelation as public Truth in which they (the Straussians) do not believe. (So Volokh sounds a little bit like an East Coast Straussian here). Also, Robert Bork and Chief Justice Rehnquist both have made similar postmodern arguments in defense of the Constitutionality of Law derived from values based solely on religious dogma.

So what is this postmodern argument? It holds that reason cannot establish morality, or in Volokh’s words, “important judgments about what the law ought to be ultimately rest on some unprovable moral assumptions.” Postmodernism also, of course, denies the Truth of Biblical Revelation. So we are ultimately left with no grounds for morality in general and no “provable moral assumptions” upon which to build public orders, in particular.

This postmodern epiphany has also been described as “the is/ought gap” or the “naturalistic fallacy.” Regarding the later term, “nature” and “reason” are connected: In Harry Jaffa’s words, “the only ground in unassisted human reason for [making moral judgments] is the ground of nature, not in the sense of what ‘is,’ but in the sense of what ‘ought’ to be.” But the postmodernist counters that, every “ought” ultimately derives from an “is,” or that you must always start with a moral premise to arrive at a moral conclusion.

So postmodernism aims it target squarely at notions of “reason” and "nature," hence, natural law and natural rights, the notion that there are self-evident Truths grounded in nature. But the postmodernist also denies Revelation. But we’ve seen atheistic postmodernists (the Straussians) embrace religious conservatives and their claims to Public Truth based solely on Biblical Revelation. And conversely, some religious fundamentalists have allied themselves with postmodernism because both share a common enemy: Unaided Reason.

Religious fundamentalists, tired of having their claims to public Truth based solely on Revelations denied as lacking “public reason,” have an incentive to argue that reason, by itself, can justify no moral claim upon which we ought to base our public policy. If that is true, then, why are their moral claims any less legitimate than any other claims to “public Truth”? But what about the is/ought gap? Their answer would be that “the Bible” fills the is/ought gap. (In the Olson article that I linked to above, he quotes one such traditionalist thinker admitting that “the two camps still ‘disagree on whether God exists,’ but figured that little problem can be worked out after the rationalists are driven from the field”).

And to add even more irony to the mix: As I’ve noted before, many very conservative dogmatic Catholic thinkers embrace the Rawlsian theory that Volokh argues against. I’m thinking of men like John Finnis, Robert George, Gerard Bradley, and Richard John Neuhaus. As William Galston writes reflecting on Neuhaus’s book, The Naked Public Square:

[T]he issue of public reason has been intensely debated, largely under the influence of John Rawls. When I returned to Neuhaus's work, I was surprised to discover that his account of public reason bears more than a passing resemblance to Rawls's. Neuhaus criticizes the religious new right for "making public claims on the basis of private truths" (36; emphasis in the original). The integrity of politics, he says, requires us to resist all such proposals. Public decisions, he insists, must be made through arguments that are "public in character." He continues: "A public argument is transsubjective. It is not derived from sources of revelation or disposition that are essentially private and arbitrary" (36). Accordingly, those who want to bring religiously based values into the public square "have an obligation to 'translate' those values into terms that are as accessible as possible to those who do not share the same religious grounding" (125).

Catholics like Neuhaus feel comfortable with the “public reason” test because Catholics have their rich natural law tradition, which is itself based on unaided reason, or universal principles, that man as man, can know for himself. Of course, this is what the Enlightenment was all about as well. And both the Enlightenment and Catholic natural law have their antecedents in Aristotle who developed the concepts of “reason” and “nature” in the first place.

And much of Catholic Dogma, indeed, much of the Church’s socially conservative positions on abortion, contraceptives, homosexuality, is “justified” by the natural law, or on principles of reason that are universally accessible to man as man.

However, not everyone accepts the “Catholic” or “Thomistic” view of natural reason. The Enlightenment, in many ways, represented a radical break with the Thomistic understanding of nature. The Catholic Church and the followers of Thomas Aquinas (who, like Harry Jaffa, are not all Catholic) may have one understanding of “reason” that demands abortion be outlawed, that homosexual and contraception are “unnatural” and hence wrong…but other thinkers, for instance, Voltaire, or Ayn Rand and her followers, or Daniel Dennett, appealing to the same principles of universal reason, may come to radically different conclusions on these matters.

So there seems to be a modern (Enlightenment) and traditionalist (Thomistic) split on what reason tells us regarding many different contentious public issues.

This split is exemplified by the briefs filed, in the Lawrence v. Texas case, by the Family Research Council (written by natural lawyers Bradley and George) on the one hand and the Institute for Justice (written by natural lawyer Randy Barnett), on the other. They took opposing sides on whether governments ought to be allowed to outlaw wholly consensual private sodomy. But both sides based their cases on the same (originalist) grounds: certain self-evident Truths, grounded in nature (the natural law case against sodomy, on the one hand, and the natural rights limitation on government interference with wholly consensual private acts, on the other); but their understanding of those same principles demanded differing outcomes.

What was the United States founded on?

One big blow against both the fundamentalist/postmodernist side is that this nation was not founded appeals to Biblical Revelation or denial of any objective moral or public Truth, but rather on “Reason” or, as the Declaration of Independence puts it, “the laws of nature and nature’s God.” Not everyone understands what this phrase means. Many on the religious right misinterpret this as the Biblical God and His revealed law. John Adams put it differently:

The United States of America have exhibited, perhaps, the first example of governments erected on the simple principles of nature.... [In] the formation of the American governments ... it will never be pretended that any persons employed in that service had interviews with the gods, or were in any degree under the influence of heaven.... These governments were contrived merely by the use of reason and the senses.

John Adams, A Defense of the Constitutions of Government of the United States of America, 1788

In fact, the notion that public policy needs to be justified by public reason did not originate with Rawls, but (if I interpret him correctly) John Locke (or perhaps an earlier philosopher? Aquinas?). And Locke, arguably, influenced the founding more so than any other philosopher (that's why he is commonly referred to as “America’s philosopher”). Locke argued that Truth is knowable by reason and that revelation is only true insofar as it is reasonable. But Locke also claimed to be a Christian, and Christianity to be “reasonable.” Hence, there was no problem. But many of his earliest followers, using his formula of untrammeled reason, found the Bible, in its entirety, to be anything but reasonable. One thinks of Jefferson and his cutting out wholesale parts of the Bible that didn’t comport with Reason.

Of course, there is always the question of what the founders meant when they appealed to “Reason” or “the laws of nature” in formulating our governments. The Thomists argue that Reason and Revelation largely agree on most matters; thus the natural law will complement the policy agenda of religious conservatives who based their claims upon Revelation. But did our founders—men like Jefferson, who used Reason to reject much Christian dogma, and in fact, savaged it with terms like “insane,” [the Trinity] “dung” [the Gospels] and “Daemonism” [Calvinism]—men who, if you’ve read some of their quotes on the Roman Church, were practically anti-Catholic bigots—intend to appeal to a Thomistic view of “the laws of nature” in founding our nation, or to a more modern Enlightenment understanding of nature? That’s the million dollar question.

Moreover, the postmoderns can counter that this dispute between traditionalists and modern natural lawists is meaningless; our founders may have appealed to universal principles of natural law and natural rights; but in doing so they appealed to something that didn’t exist. So let’s accept that and move on.

My own position is that I am predisposed towards the Modern Enlightenment view of Nature. But I’m not sure if I can use reason to “bridge” the is/ought gap. So if I am going to start with a moral premise in order to arrive at a moral conclusion regarding where we derive our public policy, the unquestioned premise that I start with is this:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….