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By Dr. Frederick Liewehr

5/7/2013 (2 years ago)

Catholic Online (www.catholic.org)

The importance of natural law is that it provides a substructure and legitimacy for the legal system

For some time now, a remark by Thomas Jefferson in an unlegislated and extrajudicial private letter to the Danbury Baptist Association in 1802 containing the phrase "separation of Church and State" has been used as a battering ram by the Left in an attempt to remove all traces of religion, and lately any vestige of belief in an objective morality, from the American scene.

Highlights

By Dr. Frederick Liewehr

Catholic Online (www.catholic.org)

5/7/2013 (2 years ago)

Published in U.S.

Keywords: Natural Law, Natural rights, John Locke, Thomas Jefferson, Declaration Marriage, same sex marriage, Danbury Baptists, Dr. Frederick Liewehr


RICHMOND, VA (Catholic Online) - The United States Supreme Court is currently trying to decide whether we as a nation will redefine marriage from a sacred union between a man and a woman to some sort of secular contract between whomever desires to participate.

This historically unprecedented move, though bizarre on its face, is the logical result of the current confusion we face as a nation, which is simply the question of what we intend to use to replace God as we move "forward", to use the U.S. President's favorite phrase.

For some time now, a remark by Thomas Jefferson in an unlegislated and extrajudicial private letter to the Danbury Baptist Association in 1802 containing the phrase "separation of Church and State" has been used as a battering ram by the Left in an attempt to remove all traces of religion, and lately any vestige of belief in an objective morality, from the American scene.

The letter was written by a minority religious group in Connecticut who were concerned that the right of religious expression guaranteed by the new Constitution might be interpreted as being government-given (thus alienable) rather than God-given (hence inalienable), which might someday result in the government attempting to regulate religious expression. This in turn could cause the government to favor more populous denominations.

Jefferson shared their concern, and referred to it numerous times elsewhere. In another letter, this one to Benjamin Rush, also a signer of the Declaration of Independence, he wrote, "[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, every one perhaps hoped for his own, but especially the Episcopalians and Congregationalists."

"The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes. And they believe rightly". (Thomas Jefferson, Writings of Thomas Jefferson, Albert Ellery Bergh, editor (Washington D. C.: The Thomas Jefferson Memorial Association, 1904), Vol. III, p. 441, letter to Benjamin Rush on September 23, 1800)

In his letter to the Danbury Baptists he assured them that their fears were unfounded. "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of government reach actions only and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion or prohibiting the free exercise thereof," thus building a wall of separation between Church and State."

"Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties."

Invoking the "natural rights" phraseology was important in Jefferson's day. The philosophy behind the Declaration of Independence was a practical application of John Locke's ideas concerning natural rights. Some say it is properly understood as having been derived from a Catholic view of the natural law. The Declaration of Independence can be seen as Lockean natural rights interpreted through the lenses of Richard Hooker, Algernon Sidney, and the tradition of philosophical realism.

The American Enlightenment was, politically, a mixture of Lockean classical liberalism, the Scottish Enlightenment's theory of moral sense, and the classical tradition of liberty. Hooker wrote that "natural rights" included "that which the Books of the Law and the Gospel do contain." (Richard Hooker, The Works of Richard Hooker (Oxford: University Press, 1845), Vol. I, p. 207).

"Natural rights" therefore were those rights that God Himself guaranteed to man in the Scriptures. Thus, when Jefferson assured the Baptists that by following their "natural rights" in practicing their religion they would violate no social duty, he was confirming their belief and his that the free exercise of religion was their inalienable God-given right and therefore was protected from federal regulation or interference.

Sadly, this letter and its pregnant phraseology have been inverted and misapplied by recent courts to virtually prohibit religion and its practice in American life, the exact opposite of what Jefferson had in mind. The "wall" of Jefferson's letter was not erected to limit religious activities in public but to limit the power of the government to prohibit or interfere with those activities.

Earlier courts understood the intent of the Founders, and in Reynolds v. United States defined what the separation of church and state meant, saying, "[T]he rightful purposes of civil government are for its officers to interfere when principles break out into overt acts against peace and good order. In th[is] is found the true distinction between what properly belongs to the church and what to the State."

In other words, in this case of a Mormon convicted for bigamy, the Court ruled that religious duty was not a defense to a criminal indictment. That court and others since have identified actions with which the government can interfere, even if committed in the name of religion, including human sacrifice, polygamy, bigamy, concubinage, incest, infanticide, parricide, advocation and promotion of immorality, etc. It simply said that illegal activities are not protected simply because someone calls them religious.

Until recently, this ruling would have been understood as part of common sense. However, in the current state of confusion that our society finds itself, common sense, if understood to mean innate good sense, from the Latin sęnsus commúnis, common feelings of humanity, is no longer common.

American society has become polarized, and radical individualism, with "tolerance" as its guiding light, dictates that there be no "common" consensus except that all is relative and no absolutes exist. Given that frame of reference, it becomes impossible to define what an illegal activity is other than to appeal to an arbitrary ruling in a specific case. Thus the appeal of nearly every aspect of politics and law to the Supreme Court, which is beginning to resemble the Supreme Soviet more than the Supreme Court of the Constitution, with the risk that the Chief Justice may become the de jure head of state.

Throughout the years, legal scholars have found it impossible to define what law is, though everyone uses the term. Thurman Arnold, one of Roosevelt's "trust busters" and a professor at Yale law school said that it was impossible to define what law is, but that we need to keep trying. Others have held that we should forget about trying to define it and just get down to adjudicating cases. Probably and adequate working definition would be that law is a system of rules and guidelines to govern behavior in a society. But where does this law come from?

This is a huge issue, and beyond the scope of this article, but it should be apparent that the source of the law is extremely important, and is the reason why law is not consistent between nations or even states. The reason attorneys have to be admitted to the bar of the state(s) in which they intend to practice is that they need to be acquainted with the law specific to that state. In my field, dentistry, we have made huge strides toward competence examinations being accepted by multiple states, and some parts by all states, but in the area of dental jurisprudence each state is still unique and requires a separate examination.

Perhaps the question we should be asking, however, is not what law is, but what it should be. In the realm of law as political philosophy, John Austin's theory of legal positivism attempted to separate moral rules from "positive law." His theory held that the law is a command issued by the uncommanded commander (the sovereign who is habitually obeyed), and that such commands are backed by threats of sanctions (force). That is the theory favored by Statists, that the State is free to impose its will on its subjects. The American Founders, however, followed natural lawyers like Jean-Jacques Rousseau who argued, as the Church does, that law reflects essentially moral and unchangeable laws of nature.

Natural Law, St. Thomas said, is "nothing else than the rational creature's participation in the eternal law". The eternal law is God's wisdom, inasmuch as it is the directive norm of all movement and action. Thus, rather than a system of arbitrary rules imposed by a king, law should follow a divine order that is written on man's heart and knowable by faith and reason. It is from this philosophy that the unalienable rights of man is derived.

The importance of natural law is that it provides a substructure and legitimacy for the legal system. Natural law is the way by which democracies can be held in check, to prevent them from becoming tyrannies of the majority, illustrated by the allegorical story of the sheep and two wolves voting to decide on what to have for dinner. There exist individual rights and freedoms that even a vote by 99.999% of the population cannot legitimately suppress, and one of these is the freedom of the exercise of religion.

If, however, the source of law is no longer natural law as revealed in Scripture, if the Bible and thousands of years of Judeo-Christian morality is rejected, what is to take its place? If the sole source of our law becomes the Court, which uses the "living Constitution" theory in vogue in our law schools to "interpret" the Constitution to mean whatever the sitting justices want it to mean, then "marriage" could be legally re-defined to mean whatever they arbitrarily decide.

In that case, the exception to the interference with the exercise of religion for illegal activities could logically be construed, following Reynolds, to allow the government to apply sanctions to churches and church members who consider God's law above that of the State.

Thus, the re-definition of marriage is not a trivial matter of allowing a small group of deviant individuals their misconceived "pursuit of happiness". It is an issue that could propel us into an age of persecution of the Church that the Founding Fathers thought they had explicitly prevented.

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Dr. Frederick Liewehr is an endodontist who teaches and works in private practice. He converted from Protestantism to Catholicism in 1983, having been drawn ineluctably to Christ's Church by the light of Truth. He is a member of St. Benedict parish in Richmond, a Fourth Degree Knight of Columbus and a Cooperator of Opus Dei.

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