Law per se Establishes Religion

It is silly to suggest that morality cannot be legislated. Legislation *just is* the legislation of morality. Laws are formal promulgations of the convictions of the mighty regarding what is ill done, and by implication what is well enough done. Laws tell us what it is important to do, and what it is important not to do; by what they omit to cover, they tell us what is not important, what is in the eye of the Law neither here nor there. Statute by statute, they constitute a written and procedural record of a comprehensive moral vision of things.

Each law implies all by itself a comprehensive moral vision; for no one thing can be right or wrong except under a moral system that implicitly evaluates all acts as either good, bad, or indifferent. If for example we explicitly ruled out only murder, we would thereby implicitly evaluate all other sorts of acts as morally unobjectionable – as either good, or morally neutral (whether there can be such a thing as a morally neutral act – there cannot – is an argument for another day).

A comprehensive moral vision is impossible except under an exhaustively comprehensive vision of all things. Indeed: a comprehensive moral vision is nothing other than an integral aspect of some exhaustively comprehensive vision.

Such a vision need not be spelled out completely in order to be completely implicit in whatever is in fact spelled out. Perfect understanding of all things is not a prerequisite to any given jot of understanding, however small. But even the tiniest jot of understanding presupposes the complete intelligibility of all things, at least in principle, and to a mind sufficiently sapient (NB: nothing less than an infinitely sapient mind will do; no Principal of knowledge, then no principle of knowledge). If things are altogether unintelligible, then obviously there is no chance that they might be intelligible in part (NB: things that are absolutely unintelligible are eo ipso and absolutely inactual; they are not things in the first place).

An exhaustively comprehensive vision of all things includes a vision of God. It is then essentially and inescapably religious, in the sense that – at least implicitly – it avows religious propositions of some sort as, not just credible, but actually true.

Laws then all cannot but establish a body of religious doctrine, at least implicitly.

The antiestablishment clause of the First Amendment then is incoherent. Congress *cannot* pass a law that does not somehow formally establish the truth of some religious doctrine or other. At the very most, the First Amendment then can coherently proscribe laws that compel men to any explicit avowal of adherence to such doctrines, whether through utterances, or deeds, or payments of tithes or taxes, or acceptance of limitations upon their government service, or any other act. It can, i.e., coherently proscribe only laws that prevent men from renouncing their subjection to, and leaving, a polis that has established a moral vision of things, to which they cannot in good conscience subscribe. The First Amendment establishes the immutable propriety of any man’s decision to renounce his citizenship in the United States, and the protection of her laws.

The First Amendment insists that it is evil to prevent such renunciations. It is, in other words, itself a religious law.

23 thoughts on “Law per se Establishes Religion

  1. The First Amendment thus prohibits Islam because (or “just as”) Islam would prevent the renunciation of subjection. Political Correctness, the Islam of the West, is best summed up as the prohibition of the renunciation of morally wicked strictures.

    • Hah! Just so. Note however that the First Amendment cannot coherently prohibit laws that revoke the rights or privileges of citizenship or denizenship of them who have renounced their citizenship and repudiated their subjection to the laws of the United States – and to the religious doctrines they formally enforce upon her subjects. It cannot, i.e., coherently insist that denizens of the United States may flout her laws ad libitum. Repudiate them if you wish, but if you do, you must at least leave; flout them, and you will suffer their punishment, regardless of the motions of your conscience.

      All this is just to say that there is in fact an established religion in the US, to which we all pay tithes when we pay taxes, and whose commandments we disobey at peril of ostracism, impoverishment, dire punishment, death; to which, in so doing, we implicitly pledge our fealty. It’s just that this American religion is silent on the subject of certain religious doctrines, as, e.g., the Trinity, the Incarnation, reincarnation, karma, and so forth; this, in rather the way that the Catholic Church is dogmatically silent upon doctrines that are not as yet crucially controversial among her faithful, as, e.g., the death penalty.

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  3. I agree with you. I’ve written a few post about ethical relativism and the dangers of not having a higher level system of beliefs upon which to base our decisions…otherwise we are basing judgments on time, place and the loudest voices.

  4. It is silly to suggest that morality cannot be legislated. Legislation *just is* the legislation of morality.

    Hard to believe “educated” people do not understand this very simple truth. But of course we know they don’t understand it when they, in one way or the other, claim that we can’t or shouldn’t legislate morality. By the same token they certainly do not believe their own rhetoric, otherwise they wouldn’t do it.

    Dr. Bertonneau: as I’ve said many times and say again, someone ought to dig Jefferson’s bones up and kick the sh*t out of them for ‘bequeathing to posterity’ that his religious bill in the state of Virginia was intended to include the Jew, the Mohammedan, and the infidel of every denomination “under the mantle of its protection.” I doubt that Jefferson himself (given his other writings on the subject) would approve of the way this principle has been projected onto the United States and the First Amendment, but it has in any case, and a pox on his bones for it!

    • When people say that we can’t legislate morality, what they really mean is that they don’t like some particular law. But there is no way out: to refrain from legislating against x is effectually to legislate for it: ¬(¬x) = x. What is not forbidden is permitted, by definition. And to permit x is to approve it. So what such people are saying is that they want x to be approved.

      • Right. I’ve explained it any number of ways myself, but it is very simple boiled down – a law prohibiting x is a morally based law, no doubt about it. It may not be based on my morals or your morals or Dr. Bertonneau’s morals, but it is based on someone’s morals, and that is a fact.

        Generally speaking in modern times when someone claims we can’t legislate morality what they mean is that they reject Christian morality, and any law based on Christian morality. But they most certainly do not reject morality based laws. Otherwise, as I said, they wouldn’t advocate for them. Besides, ‘it’s wrong to legislate morality’ is self defeating rhetoric in any case.

      • Yes! If it’s wrong to say – whether in speech or in law – that x is wrong, then it’s wrong to say that it is wrong to say that x is wrong.

        It’s amazing to me how our adversaries so often go in for that kind of autophagy.

      • Perhaps we ought to avoid presuming to know the motives non-specified people might have for saying the things which they say.
        When some people* say, “We can’t legislate morality,” what they mean is that it is not possible to create a moral norm by the passage of specific legislation. It is the moral norm, already existing by means of social construction, which prompts the legislation. Not the legislation which creates the norm.
        Which is exactly what you are saying.

        *Anecdotally this includes every person with whom I have ever personally discussed this concept, which includes professors who study topics related to exactly this question. Thus my own experience is that you have badly misunderstood what other people are telling you.

      • Monsieur le Chevalier, with utmost respect and warm feelings of friendly good fellowship, I must nevertheless ask: had you not noticed that the two following statements controvert each other?

        Perhaps we ought to avoid presuming to know the motives non-specified people might have for saying the things which they say.

        When some people* say, “We can’t legislate morality,” what they mean is …

        But perhaps you had specific men in mind, whose minds you well know. The professors of your acquaintance are certainly right that a law cannot create a sense of moral obligation among a people otherwise dead thereto. Law can teach, to be sure, and insofarforth help to inculcate, educate, and reinforce moral sensibility; for she is one of the instruments of social construction; but she can possibly teach only such men as are ready to construe themselves her students.

        You are fortunate to have enjoyed such sagacious interlocutors. I have not been so fortunate. I have heard the locution rom the lips of ordinary intelligent folks, who by it made quite clear that they meant that legislation could not presume to formalize moral law – their clear implication being that there is in fact no such thing as an objective moral law, so that moral assertions are necessarily private and circumstantial, and nowise binding upon anyone – so, therefore, not a fit matter for legislation.

        These are the same sort of folks who think it quite sophisticated and au courant to insist that there is no truth, no objective reality. I grow weary of rehearsing the foolishness of such notions.

        You write:

        Thus my own experience is that you have badly misunderstood what other people are telling you.

        Hold on, there: you have direct experience of my understanding of my own experience? No; that can’t be what you mean. You must mean, rather, that your experience is different from mine. But then, if so, you can hardly have a basis for the judgement that I have misunderstood my own experiences, which – after all – you have not yourself experienced.

  5. This was illustrated in 1990 when the Supreme Court ruled that the First Amendment doesn’t give Indians the right to smoke peyote in their religious rituals. Can we pass a law against the ritual eating of actual human flesh? Can we pass a law against pressing a cracker onto another person’s tongue? There is no place to draw the line; everything is religion and nothing is religion.

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  7. I always interpreted the saying “you can’t legislate morality” to mean that legislation cannot change a person’s heart. Laws can force a person to perform actions that appear to be moral but in order for an act to be authentically moral it must be performed whole heartedly and not through compulsion.

    • Winston, that is one interpretation, yes. But as I intimated above, if we followed it then there could be no law.

      I don’t presume to know whether or not laws, in and of themselves, can have the effect of changing a person’s heart from worse to better or vice versa; but the scriptures seem to be telling us that the law actually can, and does in certain cases, act as a schoolmaster to lead us unto Christ.

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