Editor’s note: Ashby D Boyle II, JD PhD is Meridian’s Supreme Court correspondent.
Secrets of the Clerks: Soon To Be A Major Motion Picture
Law clerks at the United States Supreme Court put in a year’s service and acquire intimate knowledge about the Constitution, constitutional law and constitutional adjudication. In saying “intimate knowledge” the intended sense is that used in the Hebrew Bible, in contrast to knowledge acquired through formal legal education.
One can learn more in ten minutes by starring into heaven, Joseph Smith said, than by (say, in my case) 17 years of studying religion and the Constitution at Princeton, Union Theological Seminary/Columbia University, the University of Cambridge, and Yale. “You can never be too educated,” President Hinckley once told me, and so I arrived 20 years ago at the office of the Supreme Court police to report for duty as a clerk having taking that advice to heart.
There were three books in my backpack that day — more on that later — as I reported for fingerprinting, being sworn in, and issued a law clerk ID.
I confess to have very clear memories of that year, and genuinely profound respect of those I grew to know and love, as well as a heightened respect for the Constitution.
That being said, there was also a trade-off, feeling after twelve months much less respect for the Court and its current profane process of five-year-old would-be political decision-making amongst many of my fellow law clerks, rampant clerk disloyalty of law clerk to the Justice they supposedly served, preferring clerk politics to doing justice by the Constitution. That’s all on that subject that need be said here (as opposed to elsewhere: Secrets of the Clerks, a novel which I have in the works (modeled on the work of Tom Sharpe) is predicted to become a successful movie by several paralegals whose salaries I influence, with Meryl Streep as Justice O’Connor and Bill Murray portraying Justice Scalia).
Let Me Introduce to You, an Act You’ve Known for All These Years: On the Eureka! Thoughts of Professor Charles Taylor
After clerking, before a Wall Street law practice engulfed me, some lessons learned as a clerk were adapted from my Yale PhD as chapters published in the Constitutional Law Journal of Seton Hall’s Law School (see Fear and Trembling at the Court, Dimensions of Understanding in the Supreme Court’s Religion Jurisprudence). Therein I noted the turn to the secular in certain decisions but at the time had no idea how pervasive and decadent secularism was within the Court’s culture.
To learn how powerful and destructive secularity has become, I was blessed to discover the intellectual work provided by Charles Taylor over the past decade on nine of ten books. In exquisite detail and extraordinary craftsmanship in the handling of ideas, combined with his personal brilliance and religious faith, Taylor has sparked a trend from within the sacred groves of academe that is critical of secularism as the pseudo-religion it now is.
Secularism stands revealed, I would add, as the pivotal idea at the root of the Court’s presiding over the demise of the family and religion in America.
Taylor demonstrates how secularity has grown to become our nation’s basic religious and ethical belief system. As I begin to apply his insights to the Court, a fresh way of understanding the Court and its problems seems possible. Certainly Taylor’s work has made critique of secularism welcome at Yale.
Taylor won the Templeton Prize in 2007 for his Harvard University Press-published book, A Secular Age. By way of background, the Templeton Prize was created by Sir John Templeton to help remedy the secularist oversight of ignoring religion among the Nobel categories. Sir John is credited with inventing international mutual funds, Mr. Nobel with inventing dynamite.
Without the Justices yet realizing it, the Court’s incorporation of secular theory through the Religion Clauses, as noted in my September 17th Meridian article, this incorporation has had the unintended effect of establishing secularism as our national religion. In fact, secular establishment has been litigated as unconstitutional in at least two federal courts of appeal.
Religion as Critic of the Secular
The (always) respectful critique of the academic roots of the Supreme Court’s secular turn (in the 1940s especially) is an important social role for religion and theology in our national culture.
“[T]heology serves … best when it acts as a disruptive influence [by] reminding [our law schools] of the fallibility not only of their propositions but even of their norms and methods,” notes Bruce L. McCormack, a professor at Princeton Theological Seminary.
Closer to home, Robert Bellah has encouraged Mormons to speak up from the values of their religious heritage. “Perhaps the Mormon experience could give food for thought for thought not only for Mormons but for all of us who live in this nation. How many Mormons “realize” asks Bellah, “that their own experience as a people might suggest a very different course for American today?”
In the spirit of Professor Bellah’s challenge, as a thought experiment, what follows is a quick inquiry into how the secular values exposed by Korihor might apply today to the secular values of the theories of constitutional law. The Book of Mormon — one of the books in my backpack my first day at the Court — provides an account from B.C. 74 a precise presentation of contemporary secularist theory, for six reasons.
1. Death in secularist theory is treated as if irrelevant in moral thinking.
One of the dogmas in present day secularism is that death is the end, a view attributed to Korihor at Alma 30:18. On this point of secularist theory Professor Taylor points out that “[i]n terms of a central image of Christian history, a judgment intervenes before our full entry into the Kingdom. In some way or other, our life will be weighed, and can be found wanting.”
Secularity, by proclaiming the death is the end, thereby subtracts from secular thinking any final accounting of our acts and choices.
It is a subtraction that injures my circumstances and my society as well as myself as a moral agent. This final accounting is an important part of our identity.
Even when my attention is focused elsewhere, my identity continues to shape and pre-shape my actions towards myself and others.
My inevitable thoughts of my death and future judgment provide the backdrop or framework within which I have reason to choose the right, thereby connecting my present situation to my future in a fundamental way. Taylor’s point about secularism is an instructive one and is relevant to why The Book of Mormon is so quick to condemn the error in Korihor’s belief there is neither after-life nor final judgment. As more and more individuals in a society either accept or, alternatively, reject Korihor’s teaching, the moral quality of that society is directly affected.
The secularist denial of the Judgment is part of a constellation of secular reasons not “to fear death as the end of life”. When I contemplate my inevitable demise, and then move in my thinking from my death back to today, if knowledge of the final judgment has been subtracted it becomes more difficult to consistently answer the question, Why should I be moral? An important point to consider in makinf today’s decisions is missing. “[T]herefore,” says Taylor, absent “the completion, as it were of the dossier with which we all affront judgment,” society has lost the backdrop or framework for individuals to choose to act unselfishly as a rational decision.
Men and women, says The Book of Mormon, will be judged by God according to their works. “Ye must stand before the judgment seat of Christ to be judged according to your works.” (Mormon 6:21.) In secular theory, however, with no final judgment, the moral significance of death disappears, and the doctrine that life is a “test [that] we can fail” seems to inevitably become misplaced.
2. Secularist theory denies the possibility of revelation or of the knowledge of faith.
Another of the dogmas of present day secularism is the claim that agnosticism regarding Christ is rationally mandated.
This “rational mandate” (falsely named) is intended to use intellectual posturing to negate the ideas of prophecy, revelation, the resurrection, the judgment, and the life hereafter, thus depriving human of purpose. (Alma 30:13.)
Be it presentist (future at the time) in Korihor’s case or backwards in historical biblical speculation, knowledge of Christ remains freely available. Faith is actually a part of any inquiry. That it is a part of religious inquiry is clear from the plan meaning of both the Gospel of John and Alma 32.
In John 20:29, as Robert W. Jenson, a Lutheran minister notes, “those are more blessed ‘who have not seen and yet have come to believe,’ and it is a test of faith not to demand ‘signs and wonders.’ Yet the signs are in fact performed and do evoke faith.” (John 17:5.)
3. Contemporary secularism is “agnostic” regarding the Atonement.
“[T]herefore ye cannot know that there shall be a Christ.” (Alma 30:15.)
In The Book of Mormon, while the salvation of men and women are through the merits of Christ, those merits are available to all who repent. The Atonement was for all of men and women, just as grace and mercy are available to all.
I once heard a Cambridge professor praise Pontius Pilate as a role model of intellectuality, because Pilate was agnostic. I mention this personal experience because upon further discussion such a deeply offensive statement was in fact not intended to make me feel like I’d been smacked in the face by a fish. Sincere secularists can legitimately desire tolerance as part of our shared moral landscape.
Reacting to the surface meanings of words prevents us from being able yet to understand each other, which becomes important as intolerance of Christianity begins to manifest itself in social etiquette. As Taylor has noted “[i]t was one of the main themes of Christianity” to aspire “to bring Christ to the people.”
Often “agnosticism” such as Korihor’s is only a fashionable cover for atheism. The need for a “cover” is because atheism requires faith to disbelieve in God, and faith is not a value secularism can consistently promote.
Korihor’s atheism emerges as events progress. “[T]here could be no atonement made for the sins of men,” declares Korihor in verse 17, his universal negative statement now revealing himself, as just noted, that contemporary secularists are wannabe atheists hiding behind an uncertainty that is only the harmless result of thinking “it all over.”
Once the Atonement is dispensed with, then neither the Incarnation nor the Creation can fully make sense. Further, the Incarnation connects to the pre-existence. One will note how quickly our core religious concepts are being undermined.
With the passage of time, secularism has succeeded in convincing most Americans that the world is not God’s creation. As a result of disconnecting God from the Creation, “a new understanding of being (being meaning that which is the most real thing of all or everything)” results. “All intrinsic purpose” to the Creation is “expelled.”
This denial of purpose is contrary to such a basic belief that we hold sacred as Latter-day Saints, at first we can’t easily think this secular thought without stupefaction. I find it hard to think about creation with a telos (or goal) carefully.
What it means is that all of the purposes — our birth, our baptism and confirmation, our family and genealogy, our trials and endurance, going to the temple to be married, the blessings God apportions us as we experience our lives relying on Him and his guidance and personal revelations, our vocations — are devoid of meaning. Creation, we are asked to belief by national secularity, has no purpose in it and excludes the final things that make our covenants real.
According to secularism, the Creation is not going anywhere because it has no goal or “telos” such as Redemption to move towards. Nothing in secularism is sacred; everything, instead, is profane. Each day is but a temporal secular series of one godforsaken day after another, in what Kierkegaard describes as a Spiritless age.
Physicists have not been deterred by the secularist prohibition. Some of them, Leszek Kowalski explains, admit they cannot do with the idea of creation. Yet it is “most unlikely, even inconceivable, that they could ever — using their mathematical tools — come up with the concept of personal providence” such as is found in Mosiah 2:21.
4. Contemporary secularism regards religious belief as mental disease.
“You’re loonytoons!” claims Korihor. (Alma 30:16.)
Why am I a loonytoon, Korihor? Because, “you look forward [to] a remission of yours sins.”
Secularism today also explains away religious beliefs as being the bad brain chemistry of “a frenzied mind; and this derangement of your minds comes because of the traditions of your fathers.” (Alma 30:16.)
Sigmund Freud has restated for secular science Korihor’s use of the “derangement” claim. In Freud’s writings on religion he explains religion as a “technique consist[ing] in depressing the value of life and distorting the picture of the real world in a delusional manner — which presupposes an intimidation of the intelligence.” Loony to Korihor, I’m stupid to Freud.
Although there is not much in Freudian theory on religion that has survived criticism, somehow Freud’s claim survives.
Elder Neal A. Maxwell, in his earlier work (such as The Smallest Part, 1973) sometimes quoted to good effect an aphorism of LeRochfoucauld, to which Freud’s “science” on religion has been immune to: “There goes another beautiful theory about to be murdered by a brutal gang of facts.”
Some bad news just in: In a secular age such as ours, facts don’t necessarily dispose of theories. They live on as secular myths, showing up even as part of our society’s common sense. So bad secular ideas can indeed survive being murdered by the facts.
And though the facts can fairly be said to have murdered Freud’s theory about religion, why exactly can Freud’s theories be declared scientifically dead?
Hans Kung, a Jesuit, undertook an investigation of Freudian theories on religion and concluded two things relevant here. (1) “The general public seem to value religion as a significant factor in their lives, in general, [however] professional psychotherapists do not.” (2) “[T]he public [finds] psychotherapists ignorant in matters of religion.” Kung also reported that the “quality of articles in the psychiatric journals [about religion] left much to be desired”.
Psychiatrists acknowledge deficiencies in Freud’s theory of religion. However, Freud’s “science” endures as secular myth. (I cast no aspersions on psychology or social work or psychiatry per se, I hasten to add. My attack is ad hominum in nature and accordingly limited.)
Korihor said “frenzied.” Freud said “neurotic.” In either instance these theories ought to be in history’s dustbin, yet they endure.
Even psychiatrists judge them as “imprecise and conceptually reductive” theories.
But the cultural power of secularism is strong and can prop up a dead idea if secularity has become invested in the idea to move the secular social agenda.
Elder Maxwell, quoting G.K. Chesterton, states Korihor and Freud have the matter on its head: it is atheism that “is abnormality” because “it is the reversal of a subconscious assumption in the soul.”
(Korihor, what do you think of us now?)
In contrast to dead ideas about bad brain chemistry, there is an opposing idea very much alive in The Book of Mormon, as Elder Maxwell observed of Alma 32.
This is what Elder Maxwell said.
“The Christian must speak out with the eloquence of example concerning the fullness of morality which is contained ‘in the fullness of the scriptures in order to help others … secular morality has moved men towards agnosticism and atheism.”
“By experimenting with gospel principles in our lives as Alma urged [is] to achieve cumulative confirmation, [to] ‘give place’ in a busy life for the serious application of gospel morality.”
Occurring just after the account of Korihor, Alma 32 is a description of desire, choice, faith and knowledge as gifts of God.
Korihor, Freud and friends would attack Alma 32 moot, for two reasons.
The first reason is that both Korihor and Freud and those of their ilk will, given the chance, try to shout down and stop the experiment “to give place” before it can even begin. They will mock the insights of Alma 32 as futile from the circular secularist logic of simply presupposing futility.
The second reason is that any success one experiences in receiving the gift of faith will be forcibly explained away by Korihor-Freud secular theory as the outcome of a frenzied mind.
And I do mean “forcibly,” which brings us to the next section.
5. “Power, not truth makes law” in secular theory.
“The management of the creature,” Korihor preached (at 30:17) is how this world works, “every man prosper[ing] according to his genius.” Candidly, that is one possible description of the Court culture.
Distinguishable from a secular genius or living life out of secular self-help books, Korihor went on to claim nothing a man does is a crime. This claim is part of a feedback loop to the first point’s nihilism about death. These ideas connect, as Reverend Jenson observes, “a motto of conventional nihilism: ‘Mastery, not truth makes law’[.]”
We’re now back at where this article started, and enough secular theory has accumulated to begin to clarify why the Court’s secular detour has real constitutional significance by detaching from the Religion Clauses. First off, even for Supreme Court decision-makers, might does not make right. The access to constitutional principles affords no basis for mucking about with what the Framers providentially created.
“Where law fails [as, explains Jenson, in e.g., Rowe v. Wade] … [then law] is indeed but a product of dominance. And law that can claim no other justification of its makers can be maintained only by essentially arbitrary power; a totalitarian state is one in which a major part of law is in this condition.”
6. Korihor hammered on the secularist dogma that nothing can be believed unless subjected to the method on inquiry known as “radical doubt.”
No man can know anything which is to come. These things ye call prophecies, which ye say are handed down by holy prophets … How do ye know of a surety? Ye cannot know these things which ye do not see.” “Only the indubitable is worthy of belief.” “The method thinking is to move from clear and distinct ideas and then move to the thing.” “Clear meanings can be had without language, just by taking thought.” “Objectivity is an illusion.”
These secularist maxims, still ideas de mode, are as asserted by Korihor at Alma 30:13-15 and also drawn from Enlightenment sources.
But regarding radical doubt, a theory of discovery associated with Descartes, it is now clear that secularism overplayed its hand. It is rational to oppose the irrational secularist dogma of doubt because radical doubt gets one nowhere. I mark this as a given, that our thinking is productively superior if begun not with doubt but with wonder. Descartes, a French thinker who set in motion sincerity as the central idea of all subsequent French philosophy, decreed that thinking begins with radical doubt, proclaiming thereby that all could be doubted except that he had just experienced a thought amidst his doubting. “I think therefore I am.”
An old Ivory Tower joke: Bartender to Descartes: ‘Would you like another Diet Pepsi, Sir?’ Descartes replies: ‘I think not’ and poof! Which reminds me of a philosophy joke, this one told me by President Kimball once. “A professor after the first weeks into a semester started her class by saying, ‘well, we’ve been going along now for several weeks … I don’t suppose any of you have your testimonies left?”
Radical doubt, as Descartes advocated it on behalf of secularist philosophy, dooms learning. Thus observed Kierkegaard quoting Aristotle, both of whom praised wonder over doubt. Thinking, begun as wonder (or faith) rewards us with more wonder still. This result because, as Alfred North Whitehead notes, “[a]t the end, when thought has done its best, the wonder remains. There have been added, however, some grasp of the immensity of things, some purification of emotion by understanding.”
A secret part of Descartes’ life as a thinker actually seems to parallel the secret life of Korihor. Secularist accounts censor this secret fact in summarizing the life of Descartes while hailing him as the “first modern man.” The secret fact — I radically doubt you not — about Descartes is that an angel had revealed to him the philosophy of radical doubt. Descartes affirmed this to the Jesuits at the Sorbonne as part of proposed deal; the Jesuits rejected his offer. Suggestive as a linkage only, but after Korihor came to doubt to doubt, the account states, Korihor “put forth his hand and wrote … Behold the devil hath deceived me.” (Alma 30:52-52.)
Whatever cuts off our openness to God, we will look back on our journey through life on the detours that l resulted, leading us off our intended path. Free agency contradicts the deterministic spirit of our age, but the facticity of just how real free agency is in our world is clear. “Therefore,” by virtue of a Liahona-failure, Alma 37:42 states, “they … did not travel in a direct course, and were afflicted with hunger and thirst [.]”
The Promised Land was not denied. Just delayed. Delayed unnecessarily by a detour of misery.
And it is this metaphor of detour which finally must be the theological critique of secular constitutional law theory. I hate to push analogies too far, but there is one more point I will hazard to make of the Court’s secular detour. It is respectfully submitted that the Justices look in the Court’s glove compartment as they swiftly travel the detour— there they will find a map called “Constitution” that can aid them in their journey.