Ashby D. Boyle is Meridian Magazine’s Supreme Court correspondent.
The Good Samaritan at Yale
Fresh still in memory despite time’s passage is the lesson I learned one day that Yale students can be clueless about who the Good Samaritan is.
I had referred to the story of the Good Samaritan in a small-group discussion. Not a single student had ever heard of the Good Samaritan.
We can find scripturally illiteracy nowadays without looking for it. Examples abound. I recall a random “person on the street” question broadcast on a late-night talk show (Jay Leno’s). The question was who wrote the four New Testament Gospels. A young woman, obviously sincere, responded to the question: “John, Paul, George and Ringo.”
Whether in the ivy-covered ivory towers or on Santa Monica Blvd., the Good Samaritan has clearly suffered trivialization within our culture through secularization, perhaps destined to become known as only an answer to a Trivial PursuitTM question (“Genius Edition”).
Scriptural Literacy Wasn’t Lost in a Day
The Framers of the Constitution were not scripturally illiterate.
The American Political Science Review once conducted a ten-year project, analyzing 15,000 writings from our Founding Era seeking to answer the question, what influenced the Founding Fathers in debates over the establishment of our government?
From 15,000 writings, 3,154 quotations were isolated for analysis. Among political theorists, Montesquieu led all other thinkers, influencing 8% of the Founders in their decision-making.
But what was discovered as the number-one influence, four times more influential than Montesquieu, was the Bible.
Montesquieu’s 1748 best-seller, The Spirit of the Laws, advocated the idea of checks and balances. The idea of checks and balances is itself biblical, a teaching of the need to anticipate human sin when human nature is entrusted with power, as in Jeremiah 17:9. As theological principles go, this particular teaching is still alive and well in ethics where it is known as “the restraint of sin.” It was quoted in the Federalist Papers you may recall: “If men were angels . . . “
In 1947, the Court decided Everson v. Board of Education, 330 U.S. 1. Everson proclaimed that “[t]he First Amendment has erected a wall of separation between church and state.”
The seminal evil in Everson was the Court getting hooked to an extra-Constitutional metaphor –the “wall of separation” —as if metaphor could be a theory of judicial review. By employing the “separation” metaphor freely, as if a rule of decision, the Court began to transform American culture into the Court’s idea of what our culture should be: a Culture of Secularity. Details on the Everson case are discussed in the September 17, 2010 issue of Meridian, “Why the Distrust of Religion Endangers the Constitution.”
What is Secularity?
Secularity defines cultural reality as no longer bearing any relation to deity or to religion.
The Court’s turn to Secularity has been continuously denounced as a clear abuse of its Constitutional authority. Worse, should checks and balances of the Court be used by Congress to withdraw judicial authority to adjudicate certain subjects, I am certain that the Court would invalidate any such Congressional action as an unconstitutional interference with the Court’s exclusive power to interpret the Constitution.
The U.S. Supreme Court has wantonly wiggled out of Montesquieu’s theories of checks and balances as the Framers intended they be applied in drafting the Constitution. To cut to the chase, now the Court is too powerful for any checks and balances to apply. The sins of the Justices routinely go unrestrained.
Though an abuse of its authority is startling, the fact the Court has no effective checks and balances any longer against its arbitrary abuse of power is passé.
What is news, however, is how the Court has wrongly evicted deity from the Constitutional text, through unchecked and occasionally even arrogant and unprincipled judicial misinterpretations, commencing in 1947 down to the present day.
“Church and state would not be such a difficult subject if religion were, as the Court apparently thinks it to be, some purely personal avocation that can be indulged entirely in secret, like pornography, in the privacy of one’s room.” Lee v. Weisman, 505 U.S. 577, 518 (1992) (Scalia, J., dissenting).
Ignoring the text of the Religion Clauses of the First Amendment, the Court by 1963 in School District of Abington Township v. Schempp, 374 U.S. 203 (1963), had systematically replaced the protection of Secularity for the protection of religious liberty. (The Schempp case basically banned Scripture from public schools.)
The Court has held repeatedly (the paraphrase is mine): “If thou be a religious American, thou may kiss the Religion Clauses good-bye.”
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . . “was interpreted only until 1947. As far as the Court understands reaches, the First Amendment was written not in 1787 but in 1947.[i]
As a former law clerk of the Court, I was and remain shocked and saddened.
Cultural statistics are available on the decline of society from 1951, four years after Everson, to 1963. In 1963 Schempp arbitrarily concluded its consolidation of Secularity as the sole protected value of the Religion Clauses of the First Amendment.
In the two decades bracketed between Everson to Schempp, America clearly deteriorated, especially its youth. Some examples. Birth rates for unwed girls went from 12 girls per 1,000 unwed girls to 45 girls. STDs per 100,000 total population went from 18 cases to 54 cases. And New York State’s standardized college entrance exam scores, for example, went from an average score of 970 down to 910.
Now, while nothing can be strictly proved by these numbers as correlations with the Court’s secularization, it is still the case that the Supreme Court teaches morality or immorality through its decisions. So as the Court preached Secularity, the country reaped Secularity.
This teaching effect is known academically as the Court’s “didactic effect.” The basic idea is that ‘if something is legal, then it is moral.’ The “didactic effect” is a foreseeable fact of the lives of the Justices, who as ultimate role models, bear responsibility for teaching morality –or teaching immorality– to Americans, especially young Americans.
All is not lost: Back at my Yale classroom
To better explain the discovery of scriptural illiteracy at Yale, I need to take you back to the classroom where this article began.
In a discussion group for a class entitled “Religious Ethics and Modern Moral Problems,” I had used the story of the Good Samaritan as an example of altruism. (If that topic sounds interesting, I can recommend a book entitled Agape, An Ethical Analysis, by the current Dwight Professor of Philosophy and Christian Ethics, Gene Outka.)[ii] In fact, had any member of the class gotten around to reading what was on the outline, the Good Samaritan story should have been read.
At my mention of the Good Samaritan, the class gasped.
Room temperature dropped. I felt a distinct chill.
And all my friendly and intelligent undergraduate students stared. Blankly. Silently.
Something, even I could realize, had just gone terribly wrong. I was, after all, a long way from home, and to boot suffered from foot-in-the-mouth syndrome. Perhaps I thought “Good Samaritan” but actually said something completely unrelated to my thought, like “the ethics of class naturalism will be your mid-term; you can sign-up for an office visit after class”?
I did have an extra ace up my sleeve because the Good Samaritan exemplifies a concept in most religions.
(There is a tribe in Africa called the “Eks” who apparently specifically do not believe in the love of neighbor). For starters, moral obligations to one’s neighbor are a commandment from God in both Christianity and Judaism. Those commandments were also on the cover of our assigned text, Professor Outka’s book, Agape.
More than a question of Judaeo-Christian ethics, the Good Samaritan is a part of many world religious traditions. So I said, “The Confucian religious traditions of China tended, for example, to limit such a duty to one’s family (only), a limit to other-regard which subsequent Chinese religious leaders criticized.” (China’s religious traditions, especially on the topic of divinization, are truly fascinating.)
No offense had been taken, thankfully, because no offense had been meant. The class’ sounds of silence were easily explained; the students had drawn a blank and were experiencing “Yale anxiety,” a problem at the University that is a function of an undergraduate’s self-loathing fear of a low grade point average.
As my own brain ceased from being a popcorn popper of sub-clinical paranoid thoughts, I saw that inadvertently I had caused the whole class “brain freeze”. We then read the story of the Good Samaritan.
The class came alive with questions.
But my own wake-up call about scriptural illiteracy was that day ripened into a fixed concern.
The love of God or agape as a scriptural term takes its meaning not from dictionary definitions, but from the narratives of scripture. What narratives make manifest is the various ways that agape connects to the transforming power of grace which God offers to sinners.
What is transformed by God is human nature’s weakness of will, transformed into will power.
What Secularity has forbidden in one court decision after another is the unconstitutionality of prayer as far as the Court dare reach, aiming at that often public act when an individual humbles herself before God to pray. In this effort, the Court has intervened illicitly into the Constitution’s mandate for protecting religion as a substantive value.
“I will make weak things become strong unto them,” informs the Lord. And prior to 1947, the Court shared in this understanding of American culture, and in the original Judeo-Christian notion of agape (or in Hebrew, chesdth. As noted Secularity scholar Charles Taylor writes in Sources of the Self, agape had pre-Secularity served to underwrite “a love God has for humans who is concerned with their goodness as creatures. Human beings participate through grace in this love.”)
Participation in transforming grace involves “a divine affirmation of the creature.” This divine affirmation derives from the fact that “agape involves permanent stability” between God and the individual, notes Gene Outka in Agape. Agape is realized in the responsiveness of mind and heart, of conscience and action, and in the will to act towards the neighbour with love. “The loyalty enjoined is indefectible; neither partial nor fluctuating. Whatever a person does in particular never in itself qualifies or disqualifies her from such attention and care,” Outka states.
The substitutes or surrogates of agape are proving defective, according to Charles Taylor. A culture of Secularity produces defective citizens characterized by self-regard instead of mutual regard, sloth instead of action, and a self that is unsupported. Unsupported man is but a candle in the wind.
This problem exists at the social level. And it is just beginning to get some attention.
In America the Secular, ironically, no other branch of government besides our judges rely on the respect of cooperating citizens. Charles Taylor’s theory as applied to the Court’s hostility to religion makes clear the point that Secularity hurts the courts which require the culture of agape in order to function smoothly. No secular substitute is adequate to that task. What exactly is the task?
The task is to be a self with the renewable moral energy to act, spared the demands of despair or helpless self-absorption. The strength of an agape-mediated self-identity is a certain predictable empowerment to be enabled to will freely the basic deeds of other-regard.
These basic actions are required for the maintenance of our social structures, which do not magically maintain themselves, especially the judicial system. This “Irony of Secularity” is nowhere more painfully evident than in our loss of a smooth-functioning judiciary and prison system. When the Court moved towards Secularity and eventually defined the Supreme Court as a political reality which institutionally no longer bears any relation to deity or to religion, the Court did not create enhanced freedoms—the Court created instead the “Irony of Secularity.”
As a result, our courts are rapidly evolving into a system choking to death on endlessly-expanding procedural penalties, on threatened arbitrariness and incivility, and on a culture of incivility. Incivility towards the institutions of justice is now mirrored by incivility from (too many) judges.
The loss of grace in these circumstances is visible to any observer, because it results in the loss of gracefulness generally. Meanwhile, more and more rules indirectly shut the courtroom door for all except the wealthy.
The denial of access to justice next indirectly reinforces Secularity’s depiction of wealth as America’s only substitute value in contrast to the value of agape. But agape in its narrative contexts in Scripture had always been quite critical of substitute values like greed to motivate action. Producing action in this fashion is meretricious to the divine affirmation of the person. Instead, the pride of power encapsulated in greed affirms only an individual’s corruption and self-absorption.
The difference of greed versus agape is the distinction of a culture of gridlock versus a culture of cooperation.
Greed is clearly not an internal reason for other-regarding actions. In our non-secular past (pre-1947), system-wide maintenance of the judicial world rested on largely internal (or self-motivated) reasons for actions. Here I have in mind agapeistic actions like unforced candor, counter-party kindness, good character, and common sense. From 1947 down through the present day, in contrast, “order in the court” must be based on external reasons to manage and maintain the judicial system. By external reasons I have in mind not only greedy lawyers but the “hot boxing” of the innocent to score a quick prosecutorial win by regulatory agencies, and the truly shocking emergence of personalities-based lawyer-bashing by even, say, a judge.
Because external reasons for actions are capricious and arbitrary, they combine for system-wide dis-equilibrium. Agape in contrast to secular humanism maintains civility and honesty. It accomplishes this as a mere cultural side effect of the egalitarian demands of agape’s neighbour-love. Maintenance of the judicial system is then more likely characterized by predictability. This is because, even for the courtroom neighbour, the loyalty “enjoined is indefectible; neither partial nor fluctuating.”
An Analysis of Scriptural Illiteracy: More Quick Criticisms of the U.S. Supreme Court
It’s only a matter of time before the Court might be cornered into acknowledging our new national religion is Secularity.
As of this writing, two federal Courts of Appeal have heard cases attacking Secularity as our nation’s established religion. One of those appeals came from a district court’s holding that, yes; it is now the case that the Establishment Clause of the First Amendment was violated by a school board’s establishment of Secularity as a religion. Grove v. Mead School District, 753 F.2d 1528, 1534 (CA9 1985).
So, events have overtaken my chance to be an alarmist.
The U.S.A. has become, through bad Supreme Court decisions, a secularized nation.
I may seem biased and disrespectful of the Supreme Court in criticizing the Court. My defense is that if one feels that I am disrespectful, then it’s time to re-read Shakespeare’s “King Lear.”
Those who love the Court the most cannot keep up the flattery. Specifically, the United States Supreme Court under our system of constitutional government is the only federal entity charged by the Constitution, as the Court will allow, to protect religion as a substantive value, which is a sacred duty imposed under the Religion Clauses of the First Amendment.
Decades of wrong decisions have built brick by brick a new wall of separation—but this wall separates the Justices from this very duty imposed under the Religion Clauses by the Constitution.
Not even the constitutional heroism –and if you choose carefully, you don’t need many heroes– of Sandra Day O’Connor and Warren E. Burger could finally move the Supreme Court into a place from which religious liberty could find safe harbors.
Incremental reform means taking back one precedential brick at a time every six or seven years. In the alternative, as Robert Bork wrote in Life Magazine back in the 1960’s, “The Supreme Court needs a new philosophy.”
But brick by brick deconstruction is a fool’s errand—“you’d have to be crazy to think that,” to quote a Justice who shall remain nameless.
We need to fight theory with theory, ideas with ideas.
The Supreme Court still needs a new philosophy.
© 2011 Ashby D Boyle
[i] Through-out this section I rely on demographic research and suggested correlations as compiled from the Statistical Abstract of the United States by David Barton in Original Intent, the Courts, the Constitution, & Religion (Aledo, Texas: Wallbuilders, 2010) at pages 220, 232, and 248-51.