Recently, in a discussion with a bright young thing, I heard the term "legal moralism" for the first time. This bright young thing noted that the American problem was legal moralism, In other words, that the people of this nation believe that if a law is passed, or an amendment is enshrined, the law supersedes natural law philosophy and, indeed, Catholic moral teaching. I knew the concept but not the phrase.
Wiki actually has this definition:
"Legal moralism is the theory of jurisprudence and the philosophy of law which holds that laws may be used to prohibit or require behavior based on society's collective judgment of whether it is moral."
Tragically, the majority of any group in America cannot decide what is moral and what is not moral. Recall Justice Elena Kagan's amazingly wrong statement that the law was what government's decided, and that she did not believe in moral law--no longer taught in most law schools.
This statement alone put up the red flag for many of us Catholics, who recognized that legal moralism is actually gross relativism, and, eventually, tyrannical in nature. If law departs from the natural laws, or revealed laws of God, (and the Ten Commandments are merely a re-statement of natural law), then the law becomes a tool of tyranny in the hands of those who decide what is moral and what is not.
The genius, de Tocqueville, who I quoted much in my first set of articles in 2007-2008, predicted this odd type of legal anarchy. Of course, the man was not only Catholic, but educated in the liberal arts, knew how to think, and could sense the root of evil in our system.
The Americans increase the mutability of law that is inherent in a democracy by changing the legislature year, and investing it with almost unbounded authority --The same effect is produced upon the administration--In America the pressure for social improvements is vastly greater, but less continuous, than in Europe.
I HAVE already spoken of the natural defects of democratic insti- tutions; each one of them increases in the same ratio as the power of the majority. To begin with the most evident of them all, the mutability of the laws is an evil inherent in a democratic government, because it is natural to democracies to raise new men to power. But this evil is more or less perceptible in proportion to the authority and the means of action which the legislature possesses.
In America the authority exercised by the legislatures is supreme; nothing prevents them from accomplishing their wishes with celerity and with irresistible power, and they are supplied with new representatives every year. That is to say, the circum- stances which contribute most powerfully to democratic instabil- ity, and which admit of the free application of caprice to the most important objects, are here in full operation. Hence America is, at the present day, the country beyond all others where laws last the shortest time. Almost all the American constitutions have been amended within thirty years; there is therefore not one American state which has not modified the principles of its legislation in that time. As for the laws themselves, a single glance at the archives of the different states of the Union suffices to convince one that in America the activity of the legislator never slackens. Not that the American democracy is naturally less stable than any other, but it is allowed to follow, in the formation of the laws, the natural instability of its desires.2
The omnipotence of the majority and the rapid as well as absolute manner in which its decisions are executed in the United States not only render the law unstable, but exercise the same influence upon the execution of the law and the conduct of the administration. As the majority is the only power that it is important to court, all its projects are taken up with the greatest ardor; but no sooner is its attention distracted than all this ardor ceases; while in the free states of Europe, where the administration is at once independent and secure, the projects of the legislature continue to be executed even when its attention is directed to other objects.
In America certain improvements are prosecuted with much more zeal and activity than elsewhere; in Europe the same ends are promoted by much less social effort more continuously applied.
Some years ago several pious individuals undertook to ameliorate the condition of the prisons. The public were moved by their statements, and the reform of criminals became a popular undertaking. New prisons were built; and for the first time the idea of reforming as well as punishing the delinquent formed a part of prison discipline.
But this happy change, in which the public had taken so hearty an interest and which the simultaneous exertions of the citizens rendered irresistible, could not be completed in a moment. While the new penitentiaries were being erected and the will of the majority was hastening the work, the old prisons still existed and contained a great number of offenders. These jails became more unwholesome and corrupt in proportion as the new establishments were reformed and improved, forming a contrast that may readily be understood. The majority was so eagerly employed in founding the new prisons that those which already existed were forgotten; and as the general attention was diverted to a novel object, the care which had hitherto been bestowed upon the others ceased. The salutary regulations of discipline were first relaxed and after. wards broken; so that in the immediate neighborhood of a prison that bore witness to the mild and enlightened spirit of our times, dungeons existed that reminded one of the barbarism of the Middle Ages.
How the principle of the sovereignty of the people is to be understood--Impossibility of conceiving a mixed government--The sovereign power must exist somewhere--Precautions to be taken to control its action --These precautions have not been taken in the United States --Consequences.
I hold it to be an impious and detestable maxim that, politically speaking, the people have a right to do anything; and yet I have asserted that all authority originates in the will of the majority. Am I, then, in contradiction with myself?
A general law, which bears the name of justice, has been made and sanctioned, not only by a majority of this or that people, but by a majority of mankind. The rights of every people are therefore confined within the limits of what is just. A nation may be considered as a jury which is empowered to represent society at large and to apply justice, which is its law. Ought such a jury, which represents society, to have more power than the society itself whose laws it executes?
When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. Some have not feared to assert that a people can never outstep the boundaries of justice and reason in those affairs which are peculiarly its own; and that consequently full power may be given to the majority by which it is represented. But this is the language of a slave.
A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength.3 For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them.
I do not think that, for the sake of preserving liberty, it is possible to combine several principles in the same government so as really to oppose them to one another. The form of government that is usually termed mixed has always appeared to me a mere chimera. Accurately speaking, there is no such thing as a mixed government in the sense usually given to that word, because in all communities some one principle of action may be discovered which preponderates over the others. England in the last century, which has been especially cited as an example of this sort of government, was essentially an aristocratic state, although it comprised some great elements of democracy; for the laws and customs of the country were such that the aristocracy could not but preponderate in the long run and direct public affairs according to its own will. The error arose from seeing the interests of the nobles perpetually contending with those of the people, without considering the issue of the contest, which was really the important point. When a community actually has a mixed government--that is to say, when it is equally divided between adverse principles--it must either experience a revolution or fall into anarchy.
I am therefore of the opinion that social power superior to all others must always be placed somewhere; but I think that liberty is endangered when this power finds no obstacle which can retard its course and give it time to moderate its own vehemence.
Unlimited power is in itself a bad and dangerous thing. Human beings are not competent to exercise it with discretion. God alone can be omnipotent, because his wisdom and his justice are always equal to his power. There is no power on earth so worthy of honor in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.
In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.4
If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, an executive so as to retain a proper share of authority, and a judiciary so as to remain independent of the other two powers, a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.
I do not say that there is a frequent use of tyranny in America at the present day; but I maintain that there is no sure barrier against it, and that the causes which mitigate the government there are to be found in the circumstances and the manners of the country more than in its laws.
The one barrier now is the Catholic Church, one, holy, catholic and apostolic, stemming the tide of complete tyranny here and abroad. I do not think I need to put into boldface the great problems he saw coming so long ago.
de Tocqueville continues:
Liberty left by the American laws to public officers within a certain sphere --Their power.
A DISTINCTION must be drawn between tyranny and arbitrary power. Tyranny may be exercised by means of the law itself, and in that case it is not arbitrary; arbitrary power may be exercised for the public good, in which case it is not tyrannical. Tyranny usually employs arbitrary means, but if necessary it can do without them.
In the United States the omnipotence of the majority, which is favorable to the legal despotism of the legislature, likewise favors the arbitrary authority of the magistrate. The majority has absolute power both to make the laws and to watch over their execution; and as it has equal authority over those who are in power and the community at large, it considers public officers as its passive agents and readily confides to them the task of carrying out its designs. The details of their office and the privileges that they are to enjoy are rarely defined beforehand. It treats them as a master does his servants, since they are always at work in his sight and he can direct or reprimand them at any instant.
In general, the American functionaries are far more independent within the sphere that is prescribed to them than the French civil officers. Sometimes, even, they are allowed by the popular authority to exceed those bounds; and as they are protected by the opinion and backed by the power of the majority, they dare do things that even a European, accustomed as he is to arbitrary power, is astonished at. By this means habits are formed in the heart of a free country which may some day prove fatal to its liberties.
In America, when the majority has once irrevocably decided a question, all discussion ceases--Reason f or this--Moral power exercised by the majority upon opinion--Democratic republics have applied despotism to the minds of men.
IT is in the examination of the exercise of thought in the United States that we clearly perceive how far the power of the majority surpasses all the powers with which we are acquainted in Europe. Thought is an invisible and subtle power that mocks all the efforts of tyranny. At the present time the most absolute monarchs in Europe cannot prevent certain opinions hostile to their authority from circulating in secret through their dominions and even in their courts. It is not so in America; as long as the majority is still undecided, discussion is carried on; but as soon as its decision is irrevocably pronounced, everyone is silent, and the friends as well as the opponents of the measure unite in assenting to its propriety. The reason for this is perfectly clear: no monarch is so absolute as to combine all the powers of society in his own hands and to conquer all opposition, as a majority is able to do, which has the right both of making and of executing the laws.
The authority of a king is physical and controls the actions of men without subduing their will. But the majority possesses a power that is physical and moral at the same time, which acts upon the will as much as upon the actions and represses not only all contest, but all controversy.
I know of no country in which there is so little independence of mind and real freedom of discussion as in America. In any constitutional state in Europe every sort of religious and political theory may be freely preached and disseminated; for there is no country in Europe so subdued by any single authority as not to protect the man who raises his voice in the cause of truth from the consequences of his hardihood. If he is unfortunate enough to live under an absolute government, the people are often on his side; if he inhabits a free country, he can, if necessary, find a shelter behind the throne. The aristocratic part of society supports him in some countries, and the democracy in others. But in a nation where democratic institutions exist, organized like those of the United States, there is but one authority, one element of strength and success, with nothing beyond it.
In America the majority raises formidable barriers around the liberty of opinion; within these barriers an author may write what he pleases, but woe to him if he goes beyond them. Not that he is in danger of an auto-da-f‚, but he is exposed to continued obloquy and persecution. His political career is closed forever, since he has offended the only authority that is able to open it. Every sort of compensation, even that of celebrity, is refused to him. Before making public his opinions he thought he had sympathizers; now it seems to him that he has none any more since he has revealed himself to everyone; then those who blame him criticize loudly and those who think as he does keep quiet and move away without courage. He yields at length, overcome by the daily effort which he has to make, and subsides into silence, as if he felt remorse for having spoken the truth.
Fetters and headsmen were the coarse instruments that tyranny formerly employed; but the civilization of our age has perfected despotism itself, though it seemed to have nothing to learn. Monarchs had, so to speak, materialized oppression; the democratic republics of the present day have rendered it as entirely an affair of the mind as the will which it is intended to coerce. Under the absolute sway of one man the body was attacked in order to subdue the soul; but the soul escaped the blows which were directed against it and rose proudly superior. Such is not the course adopted by tyranny in democratic republics; there the body is left free, and the soul is enslaved. The master no longer says: "You shall think as I do or you shall die"; but he says: "You are free to think differently from me and to retain your life, your property, and all that you possess; but you are henceforth a stranger among your people. You may retain your civil rights, but they will be useless to you, for you will never be chosen by your fellow citizens if you solicit their votes; and they will affect to scorn you if you ask for their esteem. You will remain among men, but you will be deprived of the rights of mankind. Your fellow creatures will shun you like an impure being; and even those who believe in your innocence will abandon you, lest they should be shunned in their turn. Go in peace! I have given you your life, but it is an existence worse than death."
Absolute monarchies had dishonored despotism; let us beware lest democratic republics should reinstate it and render it less odious and degrading in the eyes of the many by making it still more onerous to the few.
Works have been published in the proudest nations of the Old World expressly intended to censure the vices and the follies of the times: Labruyre inhabited the palace of Louis XIV when he composed his chapter upon the Great, and Moliere criticized the courtiers in the plays that were acted before the court. But the ruling power in the United States is not to be made game of. The smallest reproach irritates its sensibility, and the slightest joke that has any foundation in truth renders it indignant, from the forms of its language up to the solid virtues of its character, everything must be made the subject of encomium. No writer, whatever be his eminence, can escape paying this tribute of adulation to his fellow citizens. The majority lives in the perpetual utterance of self-applause, and there are certain truths which the Americans can learn only from strangers or from experience.
If America has not as yet had any great writers, the reason is given in these facts; there can be no literary genius without freedom of opinion, and freedom of opinion does not exist in America. The Inquisition has never been able to prevent a vast number of anti-religious books from circulating in Spain. The empire of the majority succeeds much better in the United States, since it actually removes any wish to publish them. Unbelievers are to be met with in America, but there is no public organ of infidelity. Attempts have been made by some governments to protect morality by prohibiting licentious books. In the United States no one is punished for this sort of books, but no one is induced to write them; not because all the citizens are immaculate in conduct, but because the majority of the community is decent and orderly.
In this case the use of the power is unquestionably good; and I am discussing the nature of the power itself. This irresistible authority is a constant fact, and its judicious exercise is only an accident.
Homeschoolers, if you are not teaching Democracy in America by 10th grade, you must. This next generation needs to know what to expect in a tyranny.
God help us all here in the US.
