Amy Coney Barrett is being criticized for her Catholic faith. More to the point, she is being criticized for letting that faith have anything resembling an influence on her actions. She eschews good contraceptive practices, she adopts, she doesn’t preemptively kill children with disabilities, and she otherwise lacks the good taste to admit, like most Catholic politicians, that her Catholicism is nothing more than a chalk-dusted memory of learning grammar from a nun, dutifully repressed into a harmless identity-marker without moral or political import. While the left-liberals’ criticism of her is Very Mean, it is also a great relief for American Catholics in the public sphere, who thrive on persecution.
Persecution! So long as it is not very serious; so long as words are not turned to sticks, stones, or crosses; persecution is the ideal prompt for a righteous salvo of tweets. It is also the necessary condition for gaining political legitimacy within American society.
America preaches a kind of freedom which many smart people have described as a freedom-from, or a negative freedom. Far from the freedom of belonging to a community, farther still from the freedom that comes from Christ, America proposes a freedom from being harmed by others—an absence of hurt theoretically guaranteed to the individual by the state and its police force.
But if freedom is not being harmed, one rather needs harmful people in order to feel free. This explains one of the more obviously masochistic characteristics of living in America: the perverse joy of being mildly oppressed. Oppression, so long as it is not too bad, is the comforting squeeze by which we know we really are free, that we matter, that we have rights—rights felt and known precisely insofar as they are threatened. Real participation in the great good of American freedom does not simply mean being who you are and doing what you want, but being who you are and doing what you want despite others who would oppress you into being and doing otherwise.
This is why envy is stoked by the phrase “black lives matter,” prompting responses of “blue lives matter,” “white lives matter,” and “all lives matter.” These protests don’t express the “mattering” of the whole human race, but the fact that we all barter and truck in a competitive marketplace where oppression is peddled as the scarce commodity by which we realize our freedom and legitimacy. For one group to successfully show that they are the oppressed limits others’ capacity to live out the American revolutionary narrative, in which rights and liberties are claimed and granted against those who would squash them. No one wants to be a WASP, which is simply to say that no American wants to be free and accepted as a matter of unqualified belonging, as we might expect of the saints in heaven. Even actual, proud, White, Anglo-Saxon, Protestants express their freedom and identity in opposition to the forces of darkness that would “take away” their particular way of life.
Obviously, freedom-from is a part of the Christian concept of freedom; Paul says that Christ breaks “bondage to beings that by nature are no gods” (Galatians 4:8), and Christ does break the jaws of all those people and institutions that would pretend to divinity and enslave the weak. But this freedom-from is the result of a greater, more substantial freedom: If America says you are free insofar as you are not oppressed, Christ says you are free and so you should not be oppressed.
True freedom is not merely the negative capacity to avoid harm, but the positive capacity to flourish according to our nature. This positive freedom is something that our states cannot grant us, for the simple reason that granting it would involve answering the rather sticky question of what constitutes our nature: Who are we, and what are we for? What is our final destiny, and what material conditions are proper for attaining it? Whenever pressed, liberal states will deny having any answers to these questions, saying that individuals choose these answers for themselves, as Justice Kennedy infamously put it, defending abortion: “At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Liberal states cannot grant positive freedom: they can only profess themselves incompetent to do so. To do otherwise would posit an authority beyond that of the liberal state, one which does have the answer to what, precisely, is this “human nature” that is supposed to flourish, and how. Such a liberal state would have to either deny or affirm the teachings of the Catholic Church—because the Catholic Church does claim to have the answer. She says, positively, that we are creatures of God, destined for adoption and unity with God in a real, social, temporal body we call the Church. She derives policies for our temporal order from this answer: because of man’s dignity and eternal destiny, his conditions should be ordered so that he can more easily attain a life of virtue which, by grace, merits eternal life: Ownership should be distributed, labor should tend toward ownership, workers should form trade unions and guilds, land should be under particular care, the wealthy should give away their surplus wealth, abortion should be illegal, and so on.
Once a liberal state affirms or denies the positive teachings of the Catholic Church, it simply ceases to be “liberal.” That is, it drops the pretense that it governs some neutral, political order outside of the claims of the Church, in which individuals may do as they wish, and in which the Church is one option among many. Instead, it grows teeth. It admits that it pushes definite answers to the questions: who is man, where is he going, and what makes him happy on the way? Liberalism will either remain liberal by maintaining its inability to answer the question of what human freedom is for, or it will move beyond liberalism by submitting to the answer of the Catholic Church—or admitting that it always has been a rival church, with rival answers, pursuing a rival plan.
All signs point to more of the same: Joe Biden bemoaning the oppression of Irish Catholics during the presidential debate in order to feel and express his own political legitimacy is a particularly cringeworthy revelation of the necessary role oppression plays within the negative doctrine of freedom. But it’s not just Democrats. Conservatives take apparent joy in the hatred and invective weighed against Amy Barrett and her Catholic faith, even in one as garbled and weird as Senator Feinstein’s sneer, “the dogma lives loudly within you,” words chosen, I presume, by an elated sense of their historical significance, and so made Very Grand. But for all the fond feelings stimulated by a rare display of anti-Catholicism, it is necessary to be realistic. This is not the return of the Klan. One should not make claims of continuity between the sordid meanness hurled at Amy and the anti-Catholic Know-Nothings. American anti-Catholicism is not in the petty, denominational bitching of secularists against believers. American anti-Catholicism is structural; it fears the influence of the Pope of Rome as a foreign prince whose very existence puts an end to the idea that states are sovereign, self-justified, closed worlds, rather than being judged by the spiritual power of the Catholic Church, who gives answers to those questions that liberal states declare themselves incompetent to answer. America is founded on this anti-Catholicism. And in regards to this anti-Catholicism, Amy has made her position clear:
“Judges cannot – nor should they try to – align our legal system with the Church’s moral teaching whenever the two diverge. They should, however, conform their own behavior to the Church’s standard. Perhaps their good example will have some effect.”
“In Catholic Judges in Capital Cases, my co-author and I recounted the Catholic Church’s teaching that “abortion . . . is always immoral.” If I am confirmed, my views on this or any other question will have no bearing on the discharge of my duties as a judge.”
"Roe has been affirmed many times and survived many challenges in the court, and it's more than 40 years old, and it's clearly binding on all Court of Appeals…and so it is not open to me or up to me, and I would have no interest in, as a Court of Appeals judge, challenging that precedent — it would bind."
This is simply what it means to be a judge within a liberal society — to administrate a justice which is not directly related to truth and falsity, good and evil, but to the past decisions of that same liberal society. A fancy way of putting this is that, within liberal societies, the faculty of judgement is ordered, not towards principles of justice, but towards the will of the sovereign. The judiciary does not make laws, it receives them from legislators, interprets them, and judges particular human actions to be in or out of accord with them. The judge exists within a closed world. The ceiling of her judgment is the political power which makes the laws, whether expressed in the Constitution and past cases, or as pushed by the people and their politicians. Theoretically, if the United States were constitutionally founded and maintained with the legal principle that “every firstborn child shall be offered up by fire,” then a good liberal judge would continuously rule in favor of the child-sacrificing Constitution and her “views on this or any other question will have no bearing” on her duty as a judge. This is not to say that American judges have never ditched proceduralism, textualism, originalism, and slavish adherence to precedent, appealing, instead, to universal precepts of justice in order to decide a case. This is simply to say that, insofar as they do so, they move beyond liberalism, beyond the ceiling of the human sovereign, becoming, in effect, a bad liberal judge.
The Catholic Church, for its part, has always taught that “an unjust law is no law at all,” and can therefore be disobeyed by individuals and ignored by judges. This indicates that there is a justice higher than human law, a fact everyone knows as children, but are gradually habituated into disbelieving as adults, when it provides a handy excuse for heartlessness: “I’m sorry I have to evict you, but that’s the law; I know minimum wage is unjust, but if you want change, take it up with the State; I know abortion is murder, but how could I deny a person what they are granted by law?” (It is a mark of liberalism that what it sees as evil and unjustified within the family—a father doubling down on his own bad, violent law on the basis of precedent—it sees as “best practices” for the adult individual living under the state.)
The Church, while not denying the usefulness and prudence of judgments of precedence, argues that human law—written, spoken, or enshrined in custom and habit—is only a law insofar as it is a just articulation of the Eternal Law. In other words, within a Catholic social order, the judge does not exist in a closed world, but is obligated to take a position beyond the law; not merely to ask whether human actions are legal, but whether what is “legal” is justified by being truly right and just in the first place. This is, in part, what is meant by the Catholic idea that the temporal power is subordinated to the spiritual power: within all those operating their faculty of judgment, from parents to employers to Supreme Court justices, there ought to be a subordination of the finite, particular, and temporal case to the universal precept—to the “thou shalt not murder” and the “love your neighbor.”
It is the unwritten law of liberalism that there shall be nothing above the law. Liberalism simply is the ongoing effort to have the temporal power over and against the spiritual power, in a new configuration which is neither temporal, nor spiritual, but some third, lonely technology we call “the state,” and so it is fitting and necessary that its judges, microcosms of the social order that they judge, are identically configured, mandated to suppress judgment on the law itself and swearing fealty to a proceduralist administration of human law—padlocked, self-justified, and sealed of all cracks that would let in a glint of divine judgment.
Amy Barrett’s promise that her Catholicism will not influence her judicial decisions is simply another way of saying that Amy Barrett would like to be a judge as construed by the political philosophy and reality of liberalism, articulating the will of a human power rather than what is good and true by the will of divine love, according to the nature of the reality that God has wrought, and articulated by his Church. Insofar as we are all liberals, within a liberal state, Amy Barrett is the most Catholics might hope for. If the recent failure of our conservative Court to allow a State to regulate abortion is any indication, it would be foolish to hope for much. The paranoia with which Barrett’s Catholicism is insulted and questioned has roots that plunge deeper than the paranoid perceive, for the Catholic Church is the real, historical, institutional entity that claims to be the custodian and promulgator of precisely those universal precepts of justice which would judge human laws, constitutions, courts, states, and liberalism itself—children all, whose parents have come home early.
The Church is the vicar of Christ, the Just Judge, come to judge the nations. We do not wait for the Final Judgment to hear Christ’s judgment; in her teaching office, in diverse degrees, from the Scriptures that she arranged down to Pope Francis’ recent encyclical, the Church speaks, with trembling, human throat, the justice of God. This teaching office—belittled, ignored, and whittled down to earnest appeal—is the spiritual power by which all human law is judged, the validity and efficacy of which the philosophy and habit of liberalism was constructed to deny.
Christ’s judgment, present in His Church, disdains to tremble behind human law; it has little use for precedent, being the original voice of the Creator. Justices, parents, bosses, and peasants will all die and find themselves in that dread throne room, where appeals to precedent will hold no weight (beyond a mitigation of culpability of those poor souls habituated to regimes of bad law); where no “but I was allowed to under city code” will fly; no “but it was firmly established in case law” will justify evil; where no legal technicality will shield the soul from that awful gaze which does not blink; from that frown unimpressed with one’s accord with human political will; from that tongue that cuts like a knife, saying: “Depart from me, you cursed into the eternal fire prepared for the devil and his angels, for I was hungry and you gave me no food.” Liberal states may stamp this kind of justice out of the world for a lifetime through the suppression of the reality of the Catholic Church—for a lifetime, but no longer.