This week, in many Christian traditions, is not only part of the Christmas season, the period between December 25 and the Feast of the Epiphany on January 6. It is also a week when we remember people who died for the faith. December 26 was the Feast of St. Stephen, whose act of voluntary martyrdom is told in the 6^th Chapter of Acts. (Notice the young coat check boy named Saul standing on the sidelines. He reenters the story later.) On December 27 we remember St. John the apostle, who during a lifetime of persecution was not martyred, but not for lack of trying. Yesterday was the feast of the Holy Innocents, the day on which we remember the infants slaughtered by Herod in his raging over the announcement of the arrival of the Christ child. Today is the saint’s day of Thomas Becket, which makes sense because he was murdered in Canterbury Cathedral by Henry II’s henchmen on this date in 1170 (or thereabouts.)

Many find the celebration of the martyrs jarring to the holiday spirit. I suppose that’s somewhat intentional, but a bit upsetting none the less. We might call today the Slaughter of the Innocence, as the stories of the martyrs remind us how power responds to threats. History proves that: This day alone witnessed the Wounded Knee Massacre in 1890, the Nazi firebombing of London in 1940, and Richard Nixon’s bombing of Hanoi in 1972.

The news this week has any number of reminders of that gloomy fact, Russia’s Christmas Day attack on Ukraine’s utility infrastructure being at the top of the list. Of particular interest to the small but select group of readers of this blog is the story of the gun litigation brought by the Republic of Mexico against Smith and Wesson and several gun distributors and retailers, which aired on Sixty Minutes last Sunday. Mexico’s constitution has a right to bear arms clause, but the sale of guns is tightly regulated. As a result, a large majority of the guns used by drug cartels and human smugglers in Mexico come from the United States, most purchased from a few identifiable retailers. Estimates of the number of United States guns smuggled into Mexico each year range from 300,000 to 700,000, and it’s estimated that perhaps 100,000 Mexican citizens have been killed by guns coming from the United States. Rachel Nolan writes about the “iron river,” as it’s called, and its impact on human smuggling in a recent issue of the London Review of Books.

The Mexican government got tired of this, and filed suit in federal court in Massachusetts, claiming that the defendant manufacturer and retailers should pay for the damage caused by the guns they sold. The trial court, while expressing sympathy for the claim, dismissed it, saying that a federal statute absolutely protects the gun industry from civil liability for the criminal misuse of a gun. The First Circuit Court of Appeals reversed, noting that the statute has an exception: if the defendant knows or has reason to know that a sale is illegal, the statutory immunity vanishes. Mexico’s pleadings allege that ninety percent of the sales come from a small group of retailers, typically in large quantities: several hundred assault rifles, for instance, to the same person over the course of a few days. These sales were made to so-called “straw purchasers,” for the purpose of reselling to someone that can’t pass a background check. Straw purchases are illegal in the United States. Most of the defendant retailers are located on or near the Mexican border. Therefore, Mexico alleges, the retailers, and by imputation the manufacturers and distributors, either knew or should have known that the guns were going into Mexico, to be used in criminal activity. 

There is nothing exotic about this theory. It’s closer to first year law stuff. The Restatement of Torts says “The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” In plain English: a gun manufacturer or dealer is not responsible for every crime committed with a gun. However, if the gun dealer does something negligent, such as selling to a straw purchaser, and knows or should know that the straw purchaser will resell to a bad guy, then the gun dealer is liable for a crime committed with the gun. The Restatement, published by the American Law Institute (a group of law professors) does not make law; as the name implies, it restates generally accepted legal principles. 

The issue on appeal was not whether Mexico should win the lawsuit. It was whether a jury should have a chance to hear the case in the first place. All Mexico wants is to tell its story to a jury. Yet, judging from the reaction to the 1^st Circuit opinion, you would have thought the sky was falling. The defendants, of course, appealed to the Supreme Court, and any number of industry groups filed “friend of the court” briefs. That’s not surprising. What is a bit eyebrow-raising is the brief filed earlier this month by seventeen United States senators, with the never shy of the limelight Ted Cruz at the top, and twenty-two members of the U.S. House of Representatives.

A K – Street law firm signed the brief but it’s so poorly written – full of purple prose and bereft of simple declarative sentences — that one suspects Senator Cruz (who fancies himself a scholar) couldn’t resist wielding his own editorial pen. (And how does a mere lawyer tell his client, who happens to be a U.S. Senator, that he’s a lousy writer?) The brief gushes with phrases such as “Mexico’s lawsuit attempts to hijack U.S. courts to subject American citizens to Mexican law,” (which sounds like something from the fourth-place winner in a Boys’ State essay contest), and “Mexico’s lawsuit disrespects the U.S. Constitution and U.S. Law” (a Harvard Law School idea of a throwdown if I ever heard one).

Pare away the phony patriotism, which, as Dr. Johnson said, is the last refuge of a scoundrel, and you find nothing but pure cynicism. The heart of the brief is the assertion that the alleged absolute immunity, on which the sales into Mexico depend, are crucial to the financial viability of the gun industry, which, the claim is, perennially teeters on the brink of bankruptcy. Without a viable gun industry, the story goes, Americans would lose the ability to own guns, guaranteed to them by the Second Amendment. In short, the victims of gun violence in Mexico are collateral damage of America’s thirst for cheap, available guns (which Senator Cruz somehow transforms into a constitutional right.)

A political scientist might wonder if the astounding level of political contributions from the gun industry is what endangers its solvency (assuming that it is endangered.) A law professor might wonder whatever happened to the Chicago School principle of economic efficiency that industries bear the true, complete cost of their products, including damage done by those products, and either pass those costs on to the consumer, redesign the product, or stop making it. (The Ford Pinto exploding gas tank cases are a perfect example of Chicago School thinking in action.) But as a theologically – minded lawyer, I can’t help thinking about those babies slaughtered by Herod, disturbed by the news of the Messiah’s birth. To make sure he hits his target, Herod orders them all killed. Just as the gun industry and its friends are willing to see tens of thousands of Mexicans die in order to avoid the one lawsuit that might endanger gun-related wealth, or in order to avenge the Founding Father’s reputation so outrageously dissed by our neighbors to the South. 

Malcolm Guite remembers the story of the Bethlehem massacre in his sonnet “The Holy Innocents (Refugee”):

We think of him as safe beneath the steeple,

Or cosy in a crib beside the font,

But he is with a million displaced people

On the long road of weariness and want.

For even as we sing our final carol

His family is up and on that road,

Fleeing the wrath of someone else’s quarrel,

Glancing behind and shouldering their load.

Whilst Herod rages still from his dark tower

Christ clings to Mary, fingers tightly curled,

The lambs are slaughtered by the men of power,

And death squads spread their curse across the world.

But every Herod dies, and comes alone

To stand before the Lamb upon the throne.

“Every Herod dies, and comes alone / To stand before the Lamb upon the throne.” And there will be no K-Street lawyer there to defend him. But perhaps it’s a bit overblown to compare Senator Cruz to Herod, who after all was denominated “the Great.” There is nothing great about Ted Cruz. Ebeneezer Scrooge is a better comparison. I can easily picture him in his nightgown and cap, pressing the extinguisher-cap down upon the Christmas spirit. Unfortunately for him, but fortunately for Scrooge (and for us) “though Scrooge pressed it down with all his force, he could not hide the light, which streamed from under it, in an unbroken flood upon the ground.”

That is perhaps why we remember the martyrs at this time of year. We remember them in the light of the Incarnation, the light which shines in the darkness, the light that darkness cannot overcome. Power craves the limelight, but shuns interrogation. (The word “arrogant” means, literally, without or above questioning.) None of the defendants, and no one that signed Senator Cruz’s brief, appeared in the Sixty Minutes story. Who can blame them? Sixty Minutes has a way of shining lights into places that power would like to keep in the dark. But the light of the Incarnation will not fade, and will not blink.You can watch that broadcast here. And here is a link to the LRB story about the iron river. And if you simply have not had enough, you can find links to all the briefs in the Smith and Wesson lawsuit here.  

Juvenal said that it is very difficult not to write satire. As its 2022 term came to a close, the United States Supreme Court proved his point.

Take Justice Samuel Alito. Arrogant has its etymological roots in the Latin rogare: to ask. It shares that root withinterrogate (to question), prerogative (which, literally, means “ask first”) and rogation (hence the special period of petitionary prayer known as Rogation Days.) Arrogant, then, literally means “without questioning,” a la asymptomatic,asymmetrical, or asocial.  Justice Alito demonstrated, once again, his arrogance, not once, but twice last month. He likes to answer questions before they’re asked, and to ignore the real questions.

First, Justice Alito wrote one of his periodic cranky dissents in Allen v. Milligan, in which a five-member majority^[1] held, shockingly, that the Voting Rights Act of 1965 allowed a court to take into account disproportional impact on black voters of a proposed congressional redistricting. Justice Alito argues that the sole relevant factor is legislative intent, so that a redistricting map could be set aside only if it could be proved that the legislature drew the map to as to disenfranchise minority voters.  There are, of course, numerous problems with this theory. First, as has been pointed out time and again, legislatures don’t have intent; legislators do, and those intents will be as varied and numerous as the representatives voting on the bill. Second, it would be highly unlikely to find a bill entitled “An Act to Reduce Minority Participation in Congressional Elections.” Not even a Texas school board member would be that dumb. Nor is it likely to find congressional testimony in which a member expressed his motives to reduce minority representation.^[2] So Alito would exclude the very question – whether a law knowingly enacted in the face of evidence that it will diminish black representation (the very evil that the Voting Rights Act was designed to combat) can’t be asked, without a showing of subjective intent. Not even common-law murder would have required that high a level of intent.

From there it got worse. As has been well publicized, the Wall Street Journal published a pre-emptive “reply” from Alito to a Pro Publica article regarding complimentary travel benefits from Paul Singer,^[3] a hedge fund billionaire who subsequently had multiple cases before the Court. In 2008, Alito accepted a seat on Singer’s private jet to an Alaska fishing lodge, plus room accommodations at more than $1,000 a day, flying Alito got a heads up that the article was coming, because Pro Publica, in good journalistic practice, informed him that it was working on the article, sent him a list of specific questions, and asked him for any comments he might have. The Wall Street Journal piece did not particularly attempt to answer any of Pro Publica’s questions. Instead, it simply went off on a rant about how no reasonable person could think either that he should have recused himself from Singer’s cases, or at least reported the gift. Alito, who seems to be, as Charles Dickens said of Archbishop Laud. “a man of large learning and small sense, claimed: 

• No unbiased and reasonable person could think that his relationship with Mr. Singer would influence him in ruling on a case to which Mr. Singer was a party, even though travel experts estimated the value of the trip at over $100,000.
• In fact, the free flight had no value, because “(Singer) allowed me to occupy what would have otherwise been an unoccupied seat on a private flight to Alaska” Try that argument out on United Airlines next time you board a less than full airplane. (Alito is so impressed with this argument that he makes it twice in a one-page article.)

The gist of Alito’s argument was that the public criticism of the Court undermines public confidence in the Court (which, it seems to me, the Court is doing a very fine job of on its own.) 

This did not go well for Alito. His “prebuttal” served only to draw attention to the article, which probably would have otherwise gone relatively unnoticed. Ethics scholars across the nation weighed in, opining that at a minimum Alito should have disclosed the trip, and probably skipped it. Accompanying the Pro Publica story was a picture of Alito holding a large salmon, looking slightly green, like the kindergarten girl asked to pet a boa constrictor. Worse, the N. Y. Times wrote an article asking whether Alito was the dumbest justice on the Court today, given the total mishandling of the matter.

The main impact of Justice Alito’s screed was to provoke the Associated Press into writing a multi-day piece on the questionable ethics of the Supreme Court justices. We hear, for instance, that all of them accept off-term speaking or teaching engagements all over the world, that bring with them paid luxury travel arrangements including first-class airfare. The classes seem to be of the type popular with just graduated college seniors: go to Oxford or Florence or some other plum spot, have a non-credit course on Shakespeare or the Renaissance for an hour a day, and spend the rest of your time touring or pub crawling. For example, Justice Gorsuch regularly teaches a summer course for George Mason University in Padua, with airfare his family, housing, and side trips to Bologna and Venice. Last year, he chose Reykjavik rather than Padua, but either the teaching or the travel was so onerous that he brought Justice Kagan along, at the University’s expense, to take one day of lectures.

Justice Thomas’s cozy relationships with wealthy conservative donors has been well documented. But the AP tells us that many of them are frequent speakers at private functions attended by wealthy university donors, even though court rules prohibit them from participating in fundraising activities. Justice Sotomayor goes on regular book signing tours and requires the hosts to guarantee sales of several hundred copies of her autobiography or one of several children’s books published under her name, often using court staff to twist the arms of the hosts. (Say it ain’t so, Sonia.) And there appears to be no real support among the justices for adopting the rules of judicial conduct that apply to every other federal judge. (More about all of this in my next post).

In the face of this reluctance to act, the Senate steps in, and advances through committee a bill to impose ethics rules on the Supreme Court. (Currently, there is an ethics code developed and adopted by the federal judiciary, but it does not apply to the Supreme Court, ostensibly because the Court is created by the Constitution itself.) Never one to say nothing when he has the opportunity to say something insulting, Alito last week returned to the pages of the WSJ for a nose-thumbing interview, asserting that “no provision in the Constitution gives (Congress) the authority to regulate the Supreme Court – period.” That is a matter that scholars can debate. What is not beyond serious debate is that the common law, which the Constitution does not purport to repeal, has centuries-old principles of judicial conduct and disqualification. Further, Marbury v. Madison, in which the Court aggregated to itself the power to declare statutes unconstitutional, itself bases its substantive decision on principles of common law.So, while we may agree or disagree about whether a statutory code of judicial conduct would be constitutional, Alito’s suggestion that the Supreme Court reports to no one or no principle, other than ones announced by itself, is, quite literally, arrogant. If Alito is right, there is no external authority that could prevent him from ruling on a case in which he, or a family member, is a party. Or in which he previously worked as a lawyer for one of the parties. Or that stands to enhance the value of his investments given a certain outcome. This can’t be the law, and Alito knows it. Nevertheless, take note of this: the WSJ column recounting the interview was co-written David Rivkin, the lawyer to Leonard Leo, who arranged the Alaska trip. Rivkin, as it turns out, also will argue a tax case before the court in the coming term. Will Alito recuse himself? I doubt it. Which proves Juvenal’s point. There’s no need to make satire up; the scoundrels around us do just fine.

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^[1] Technically it is only a plurality opinion, because Justice Kavanaugh did not join in one portion. However, five judges voted for the result.

^[2] One of the arguments made was that it is constitutional to draw maps to benefit the majority’s political party, even minority suppression was a byproduct.

^[3] Not to be confused with the Australian moral philosopher Peter Singer. As if.

The names “Plessy” and “Ferguson” are linked, seemingly forever, in American legal history. Homer Plessy, a resident of New Orleans, bought a first-class ticket for a train from New Orleans to Covington. He sat in a car reserved for White passengers. The conductor ordered him to move to a different car because he was of “mixed descent:” 7/8 “Caucasian” and 1/8 “African,” as the Court puts it. State law required the provision of “equal but separate” accommodations for White and Black passengers. When Homer refused to relocate, the conductor had him arrested, the State charged him with a criminal violation of the statute. Plessy claimed that the statute violated the Equal Protection clause of the 14^th Amendment, a claim that eventually went to the United States Supreme Court. Under laws of mandamus still live today, attacks on the legitimacy of a court proceeding are technically a suit against the trial judge: in this case, John Ferguson. In an 8-1 decision, the Court held that racially segregated facilities were not per se unconstitutional. The Court sent the case back to the trial court, where the state, not satisfied with having vindicated this particular version of Jim Crow, continued to prosecute him. Plessy was found guilty and fined twenty-five dollars.

Plessy v. Ferguson is no longer good law, of course. A number of cases, most notably Brown v. Board of Education, have held that segregated facilities are demeaning and hence inherently unequal. (Brown v Board of Educationis limited on its face to school cases, and, according to some, didn’t formally and fully overrule Plessy, but I wouldn’t suggest citing Plessy in a brief.) Now, the names Plessy and Ferguson have found their way into the news, in a potentially redemptive manner. Keith Plessy, a collateral relative of Homer, and Phoebe Ferguson, John Ferguson’s great-great-granddaughter, have formed a foundation to promote understanding of civil rights and racial discrimination, and have sought a pardon for Homer. Last week, that part of their mission succeeded. Governor John Bel Edwards announced that he is pardoning Homer.

To some, pardoning a dead man might seem like a useless gesture. Not, however, if we contemplate how it reminds us of the importance of time to both culture and theology. In order for Homer’s pardon not to be a useless gesture, we have to regard ourselves as living in a narrative that reflects not just “random” acts of kindness or cruelty to a story with a beginning and an end and purpose for each of us in that story. (I put random in scare quotes because, as Oliver O’Donovan points out, making it one’s life purpose to act randomly is by definition nonsensical.) Viewed that way, Homer’s pardon redeems the earlier injustice of his conviction, and Keith and Phoebe, in working for the pardon, live redemptive lives. 

We also can’t help thinking what it means to say that Keith and Phoebe are relatives of Homer and John. Thinking about it helps us understand the related concepts of identity and agency. Each of us is at the same time a distinct agent, the latest installment in our own familial and tribal lines, and a small part of a grand narrative. To lose sight of any of these is to have an incomplete and hence false view of reality. Denying our own agency rejects, sinfully according to O’Donovan, the essential gift of personhood; persons have purposes. Ignoring our heritage, on the other hand, endorses the modern fiction that one can be a citizen of the world, that is of everywhere. Being a citizen of everywhere carries with it a view from nowhere, another popular modern fiction that ultimately leads to blindness. And losing the sense of a grand narrative denies what we all instinctively sense, that there is a larger story of which we are a part. It is this sense that causes us to hold on to values such as toleration, justice, mercy, and honor. Because we lose sight of the grander narrative, however, we view those values as adversarial rather than complementary. We lose hope that, as the psalm says, justice and mercy can embrace.

In other words, the story helps us understand properly the concept of history. We all have our separate histories, but without a belief in an overarching narrative, there is no way to conceive that events have connections to each other – that they form a history. Faulkner was half right when he said that the past is never dead. But only half right; viewed purposefully, life advances even if it never disconnects from the past. Phoebe and Keith seek not to cancel this shameful bit of history; they seek to redeem it. Paul writes to the Ephesians that to “redeem the time” is an act of wisdom. We should be grateful for that small bit of wisdom this Thanksgiving weekend.

Wednesday was the feast day in the Anglican Communion for the author Richard Hooker. Not the author of the novel MASH, but of The Laws of Ecclesiastical Polity, which (the last time I looked) has not been made into a movie or television series.

But perhaps it should. Richard Hooker the theologian has a good deal to say to us. Hooker lived in a time of great religious controversy, as the Puritans and the Catholics struggled for power. Being on the wrong side of the dispute could get you burned at the stake, depending on the current religious sentiments of the monarch. The “Elizabethan Settlement,” Queen Elizabeth I’s attempt to mediate the conflict, essentially led to Catholic-style worship and church organization under the control of the monarch rather than the Pope. However, the theology of the Church of England, as expressed in the 39 Articles of Religion, was much more Protestant. An attempt to give both sides something, the Elizabethan Settlement initially had the opposite reaction, making both sides mad.

It fell to Hooker, an Anglican priest based in Temple Church and close friend of the Archbishop of Canterbury, to defend the Elizabethan Settlement. The Laws, his lifework, did that, but it did much more than that. It outlined a theory of church law and organization that went beyond ecclesiology and set out a theology of human life together that was in its way just as complete and complex as Calvin’s The Institutes of Christian Religion. Hooker wrote a theology of not just church law, but all law that has stood the test of time.

Among Hooker’s enduring contributions was the theme of “Scripture, reason, and tradition” that stands as the hallmark, at least aspirationally, of Anglicanism. Among the many battles between Catholics and Puritans was the battle over Scripture versus church tradition as the source of authority. Sola scriptura was the rallying cry of the Protestant Reformation. Catholics responded that religion based solely on Scripture denied the authority of 1,500 years of faithful reflection on Scripture, going all the way back to the apostles themselves. Both sides, however, were skeptical of reason: Puritans because they thought that human reason was profoundly impaired by the Fall, and Catholics because they claimed that the only persons able to reason about Scripture were clergy. Hooker, disagreeing with both, argued for the ability of learned lay people to reason through questions of faith, but also reaffirmed the validity of historical tradition.

“Scripture, reason, and tradition” may have been Hooker’s formulation, but he would have scoffed at its current version. “You don’t have to check your brain at the door,” was, it is said, originally part of a Robin Williams joke about “ten reasons to be an Episcopalian.” Whatever its comic origin, the phrase has now been adopted by parishes across the country as a serious slogan. Used unironically, it must be one of the most arrogant ones out there. I suppose it’s better than “come on in and join the smart crowd,” but not much. And Hooker would have furrowed his brow at it. For Hooker, “reason” did not mean “cleverness.” Reason was a divine quality; God was and is, in fact, reason. God is the explanation for why the world makes sense. God, as reason, is the foundation for law. Human reason, in Hooker’s sense, is the capacity and opportunity to connect with divine reason. Human law is necessary only because circumstances vary in different places and times, and for different people. Human law, then is a local and contingent reflection of divine law. Human reason succeeds only to the extent it accesses divine reason, and fails to the extent it regards itself as self-sufficient. So, Hooker’s formulation would have been something like “You don’t have to check your brain at the door, but you do need to leave your ego, your prejudices, your preconceptions, and everything you heard on social media or cable TV behind.”

Hooker also had interesting things to say about human organization. Central to Hooker’s theological anthropology was his belief that humans are essentially social, made to live in groups rather than in solitude. The purpose of society, and the obligation of each of its members, is make sure that each of its members has the necessaries for basic human flourishing. Part of God’s gifts to humans is the capacity for form societies and govern themselves for the common good. Natural law is real, but not capable by itself of governing individual societies, because of those differences in time and place.

Hooker distinguished between assemblies, groups that come together for a specific purpose (hearing a sermon, rallying for a political issue, or so forth) — and then disband, and societies, groups of people that have a purpose beyond themselves and that form a new entity distinct from the individual concerns, goals or wishes of any of the members. should be societies, not assemblies. This was Hooker’s vision for the church. Some 200 years later, Alexis de Tocqueville observed that America is uniquely a country of societies. In France, he observed, power lies in the state; in England, the nobles. In America, however, citizens form association to tackle every sort of social problem, from disease to road building to poor relief. If Hooker took a look at us today, I suspect he would say that we have too many assemblies, screaming about some problem, and not enough societies, working to fix it.

Hooker was an almost exact contemporary of Shakespeare and for much of modern history was remembered as much for the quality as the content of his prose; C.W. Lewis included him in an Elizabethan literature survey book in the 1940s. He also has been thought significant for the development of the Western legal tradition. His theory of divine natural law clearly influenced John Locke, and he gave a theological basis for the English practice of equity. In fact a wag once said that The Laws of Ecclesiastical Polity was a law book written by a theologian, whereas The Institutes of Christian Religion was a theology book written by a lawyer (Calvin went to law school.) More than anything, however, Hooker was a Christian humanist, convinced of both the divine source of all goodness and the human capacity to reason about and strive towards it. Humanism in Western Europe was always a Christian movement, but today many, both faithful and skeptical, would have us believe “Christian humanism” an oxymoron. This week, as we observe All Saints, we should fondly remember Richard Hooker as one of the saints that proved that wrong.

William F. Buckley Jr. once said of socialism something like “everyone knows that it doesn’t work, but when did it get so creepy?” (The emphasis, as I recall, was his.) This phenomenon, of regarding ideas as not just intellectually suspect but threatening or sinister, is all too common these days. Socialism, which originally was simply an economic theory, continues to occupy a high position on this list, resorted to by Eric Trump or Marjorie Taylor Greene as an all-encompassing epithet when they want to call a Democratic politician or supporter of liberal causes something truly horrifying, without saying anything meaningful. I seem to recall one of them accusing Bill Gates of being a socialist, which is sort of like calling Sir Mick Jagger a radical because he still sings Street Fighting Man in concert.

Socialism does not, however, have this ideological haunted house to itself. The liberal version of socialism is populism, which etymologically means “of the people,” until recently meant something like “anti-establishment” and now seems, at least in the New York Times and The Guardian, to be a synonym for “fascist.” Typically, however, the party out of power spends more effort creating these intellectual boogey men. This makes sense, because it’s easier to run against a mythical monster than a real person. A highly popular example these days is “critical race theory.” The 1960s saw the development of a philosophy known as critical legal studies. It made the claim that legal systems reflect the interests and goals of the powerful, rather than an attempt to achieve justice. Laws are a political, not a jurisprudential act. In retrospect, what’s most surprising is that CLS theory was at one time controversial, it now seeming rather self-evident. CLS sought to diagnose the flaws in our legal system, saying in effect “here are ways in which we fail to live up to the ideals that we profess to endorse, because might trumps right time and again.” However, CLS did not stop there. It held out the hope that there really was such a thing as justice, and that it could be achieved. CLS was both diagnostic and aspirational.

“Critical race theory” is an offshoot of critical legal studies, in that it holds that the crucial variable in interpreting the American legal system is race. Legal systems, the theory goes, reflect an attempt to sustain racial privileges and burdens. (Critical race theory has expanded to become an interpretive tool for history as well as law.) Again, so far as it goes, nothing about this strikes me as overly controversial. Arguments about affirmative action, or voting rights, or police violence, are so intractable precisely because the two sides of the argument see, quite literally, two different worlds. Ethnic majorities see race-based college admissions as unfair, because they violate principles of equal opportunity. Ethnic minorities, on the other hand, claim that centuries of oppression make “equal opportunity” a polite but insidious fiction, so that race-neutral admissions policies serve to perpetuate inequality.

However, at least for right-wing news outlets and school boards, critical race theory is a threat to national existence, along the lines of what might happen if Dr. Evil got ahold of the Russian Doomsday machine and a bunch of murder hornets. Critical race theory, in these circles, has joined the ranks of the creepy and must be rooted out similarly to Communist hunting in the 1950s. While I do not understand, let alone endorse, this fear of the theory, there is one thing about it that does trouble me. 

Many critical race theorists seem to believe that not only are our views of the world dependent on our racial identity, but that they are inescapably so. Whites not only do not but cannot understand what it means to be Black. Therefore, White legislators, writing laws from a White perspective, are incapable of truly addressing the needs of Blacks. Critical Race Theory, in other words, questions whether, if there is such a thing as a higher law, it is something we can achieve. The belief in a higher law was something that the originators of Critical Legal Studies shared, whether they were religious or not. Critical Race Theory, however, suggests, that perhaps there is no better way, that we are hopelessly trapped in our ethnic silos. Law cannot address the fundamental problems of race, because legislators cannot see their way clear to understand them. Therefore, the only answer to institutional racism is to fight power with power.

Despite their shared origins, these are very different ways of seeing the world. Ways of seeing the world inform the New Testament time and again, including the 10^th Chapter of Mark (last Sunday’s reading.) Jesus, visiting Jericho, ignores the hoots and hollers of the crowd, and restores the sight of the blind beggar Bartimaeus, who then joins Jesus’s followers. Mark, in his usual fashion, is telling us much more than the facts themselves suggest. Two things intrigue us.

First century readers would have perked up their ears at the name “Bartimaeus,” which occurs nowhere else in the Bible.  The name, of course, means “son of Timaeus,” but just in case the reader missed it, Mark calls him “Bartimaeus, son of Timaeus.” Timaeus was not just any old Greek name; Timaeus was the name of one of Plato’s Socratic dialogues, and of the lead participant in that dialogue. Timaeus sets out an elegant theory of the beginning of the universe as the creation and will of an all-powerful and benevolent deity, a universe that both reflects the benevolence of the deity and has a purpose and end to it.  Moreover, the universe consists of both ideal forms, which we can’t see, and their physical manifestations, which constitute the visible world. The physical universe, according both to Timaeus and to Plato’s theory of forms, is just a pale shadow of the ideal. There seems to be little doubt that this incident happened, but we will never know whether the blind man Jesus healed was in fact named Bartimaeus. We do know from contemporary records that that name was extremely uncommon. Neither Bartimaeus or Timaeus is among the 99 most common names among Palestinian Jews between 330 BCE and 200 CE, according to Richard Bauckham. So, it is tempting to think that Mark is making a point here: Bartimaeus, who can’t see Jesus, nevertheless intuits that there is a reality beyond the physical, a truth beyond truth, and Jesus opens his eyes to what that reality is.

Equally intriguing is Mark’s report that Bartimaeus, now able to see, joined Jesus’s group of followers. “Then Jesus said to him, “What do you want me to do for you?” The blind man said to him, “My teacher, let me see again.”Jesus said to him, “Go; your faith has made you well.” Immediately he regained his sight and followed him on the way.” (Mark 10:51-52) This story is preceded by Jesus’s admonition to James and John, that they are to drink the cup that he drinks, and to the twelve that he is to give his life as a ransom from many. (Mark 10: 39-45). What follows is their arrival in Jerusalem to observe the Passover. Bartimaeus, as it turns out, was in for a bit of an unpleasant surprise.

In other words, having the higher knowledge comes with a cost. Learning the truth about ourselves and about the world can be painful, even dangerous. The Bible never mentions Bartimaeus again, but one wonders whether he considered his newly-gained sight a blessing come the following Friday.What, you say does this have to do with Critical Legal Studies / Race Theory? Quite a bit. First, if we are all sons and daughters of Timaeus, somehow aware that there is a disjunction between perceived reality and truth, this is something we need to know. Second, there is the hope of a higher and better law, and the hope of seeing reality as it truly is. That reality will be found in better understanding of one another, not in legal pronouncements. Critical legal studies emphasizes the importance of narrative  over logic to understanding the law. Hence, among its biggest critics have been the Chicago “law and economics” school, who think that law is simply a tool for economic efficiency. Whatever who or what Jesus was, he was not a lawyer or a politician; he was a storyteller, not a rule maker. Finally, achieving that insight is another form of taking up our cross. Self-knowledge is painful. Everyone over a certain age learns this every time they look in the mirror. Learning the truth about ourselves will either send us back into denial, or make us examine some inconvenient truths about ourselves, individually and collectively. This is not a creepy idea, but it may be scary. It is scary to both right and left, because it rejects both the left’s fascination with individual rights at the expense of community and the right’s insistence on maintaining current power structures. It’s no wonder that politicians want to keep it out of the classroom.

The Ken Burns film on the life of the boxer Muhammed Ali, which ran on PBS a few weeks ago, returns time and again to Ali’s battle with the federal government to stay out of the Vietnam War. Drafted into the United States Army, Ali refused induction, claiming that as a Muslim he was opposed to all wars save those declared by Allah or his prophet. A trial court in Houston Texas rejected Ali’s claim to be a conscientious objector, found him guilty, and sentenced him to five years in prison. The intermediate appellate court upheld the conviction. The United States Supreme Court took the case and ultimately reversed the conviction.^[1]

The issue in the case was whether Ali had a religious objection to all wars, which would have exempted him from the draft, or a political objection to this particular war, which would not. As Burns’ film shows, the Court’s initial straw poll showed five votes to uphold the conviction. However, upon reflection, Justice Harlan changed his mind, believing that Ali’s case was analogous to previous litigation involving Jehovah’s Witnesses, who were granted conscientious objector status. There was still a complication. Justice Marshall had recused himself from the case; he had been the Solicitor General of the United States, and hence a Justice Department official, when the Justice Department filed the case against Ali, and he was a member of the NAACP, which officially supported Ali. Hence there were only eight votes, and the four-four tie created by Justice Harlan’s change of mind would still affirm the conviction. But then Justice Stewart noticed that the trial court had not stated the basis for the conviction – the government had alleged three – and had also acknowledged that Ali’s objections were sincere. If, Stewart argued, the court hasn’t told Ali the basis for the conviction, and if the government admits that he is sincere in his religious objections, hasn’t he been denied due process? If someone gets sent to prison, doesn’t the Constitution require that he be told why? Justice Stewart’s opinion, written on that narrow basis and saying nothing about whether Ali was legally entitled to a draft exemption, got all eight votes, and reversed the conviction. Ali was free.

 It’s a basic premise of jurisprudence that court should decide cases on the narrowest possible ground. Take advantage of the procedural or case-specific grounds to decide a case if possible, and leave the broad policy or philosophical pronouncements for the rare case when they can’t be avoided. There are sound reasons for this, especially when it comes to constitutional questions. The United States Constitution is virtually impossible to amend, and so the nation is stuck with a decision on constitutional grounds forever, or at least until the Supreme Court finds a way to admit it was wrong.

The Ali case, however, reveals something even more interesting about the Court. That it was able to flip from five votes to send Ali to prison to a unanimous decision setting him free indicates that members of that initial five-member majority were bothered by the result, but only with Justice Stewart’s (or, more likely, his law clerk’s) close reading of the record saw a way out of it. There were probably five different reasons why the five justices changed their votes, but I suspect that at least some of them thought Ali’s conviction legally sustainable but morally objectionable. If they had viewed it simply as a matter of due process, they could have sent the case back to the trial court for clarification of the basis of the court’s judgment. But they didn’t; they vacated the conviction. Seemingly, they appealed, consciously or otherwise, to a sense of “higher law.”

The concept of higher law has plagued Western jurisprudence for centuries. For most of our history, there has been an assumption that there is a “higher law” perhaps but not necessarily theological, that stands as the basis for human law. (That obviously leads to a confusing hierarchy, and some have pointed out that “deeper law” might be a better description of law’s foundations than “higher” law.”) Even Justice Douglas, perhaps the most liberal Justice in the history of the Court, once said that a the United States is a “religious people whose institutions presuppose a Supreme Being.” In the 20^th Century, the country, led by Justice Holmes, took a serious detour into “legal realism,” which held that laws are nothing but a political act, and there was neither higher law nor fundamental rights, save those granted by man-made law.^[2] Today, however, none but perhaps a few aging law professors seem to believe that.

The concept of higher law bears remembering, because it will peek its head out, or hide in the bushes, in one or more SCOTUS decision this term. Perhaps even more importantly, it will be the foundation of public dispute about the court’s decisions. Take for example, the abortion debate. The Court will hear a challenge to the Mississippi abortion law, even while challenges to the infamous Texas “abortion bounty” law make their way to the Court’s attention. The abortion debate, although carried out in the courts, is entirely couched in terms of higher law. Pro-choicers point to Roe v. Wade, which held that a constitutional “right to privacy” gives a woman complete agency over the decision to abort a pregnancy.^[3] Pro-lifers, on the other hand, “point to the sanctify of life” as grounds for a state’s limiting access to abortions, and a basis for overturning Roe. The problem is that the United States Constitution, the basis for the Roe opinion, says nothing about a “right to privacy,” nor, for that matter, about the “sanctity of life.” The right to privacy is a Court-made right, announced in the Griswold v. Connecticut case, which invalidated a state statute limiting access to contraceptives. (Needless to say, the Constitution says nothing about abortion, or contraceptives, either. In fact, Justice White, who wrote the crucial concurring opinion in Griswold, dissented in Roe, saying that he did not believe the right to privacy could be used to decide the mother’s rights versus those of the unborn child). On the other hand, there is no mention in the Constitution of the “sanctify of life” either. In fact, by saying that the government cannot deny a person of “life, liberty, or property” without due process of law, the Constitution suggests that life is something less than inviolable. 

To put it another way, both pro-lifers and pro-choicers appeal to a higher, or perhaps a deeper, law, which is then couched in legal terms. Pro-choice advocates are cast as endorsing an absolute right of self-determination, which sounds like a philosophical right to do whatever one wants so long as it doesn’t harm someone else. (This, of course, is also at the heart of the argument over vaccine mandates.) Abortion opponents, on the other hand, are said to rely on a religious belief that all life is a gift from God and must be afforded legal protection.^[4] In fact, the battlelines are much less clearly drawn than we are led to believe. President Joe Biden is both firmly pro-choice and devoutly Catholic, and the devoutly atheist Christopher Hitchens said that he thought the pro-life side had the better of the philosophical argument, albeit on secular grounds.^[5] Those are questions that SCOTUS cannot and should not attempt to resolve. Nevertheless, this is the storm into which SCOTUS sails.

This is not simply an abortion question. The Court this term will hear arguments about the right to bear arms, which ultimately depend on how far an 18^th Century guarantee of an organized militia ensures a 21^st Century individual right to carry an assault weapon; about affirmative action, which ask whether the post-Civil War anti-slavery amendments protect other ethnic minorities or even members of an ethnic majority regardless of disadvantage; and campaign finance laws, which hang or fall on the question of whether spending money is First Amendment “speech.” Reading the Constitution closely will answer none of these questions. There is the Scalia approach in his Casey^[6] dissent, which is to say that if the Constitution doesn’t mention it (as with abortion), the Constitution is irrelevant to the question, which become essentially a political one. Take that road, however, and you walk back decisions guaranteeing a parent’s right to raise his or her child (not to mention the Brown v Board of Education invalidation of “separate but equal” segregated schools.) Or you can take the Justice Kennedy approach, also from Casey, that while questions of higher meaning exist, they are for each of us to decide for ourselves – the right to be philosophically obtuse, one might call it.

There is no easy solution to this problem. When Justice Barrett complains of the Court being viewed as political hacks, she ignores both the intensely political nature of the questions before the correct, and the hyper-political nature of the nomination process. (Ask Attorney General Garland about that). And when various justices, such as the Chief Justice, protest that they act as judges, not legislators or philosophers, they ignore how most of the high-profile cases the Court decides this term will depend on language found nowhere in the Constitution itself, not to mention how the Court has turned the Constitution into a quasi-scriptural body of higher law. But if the Court’s actions seem confusing, it might help to think about our own battle between political reality and philosophical preference, and then multiply that conflict by 9.^[7]

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^[1] This is a simplified summary of the procedural history of the case. The United States Supreme Court actually reviewed the case twice, the first time sending it back down for further proceedings. 

^[2] This led, among other embarrassments, to Justice Holmes infamous opinion upholding Alabama’s law authorizing forced sterilization of the mentally disabled, with his chilling line “three generations of imbeciles is enough.”

^[3] Although, mysteriously, the Court then went on to hold that this complete agency is not complete, and could be limited, in the third trimester.

^[4] In actuality, the battlelines are not so clear. Just do an internet search for “pro-choice Catholic” or “pro-life atheist” to see.

^[5] My own views are both mixed and irrelevant.

^[6] Casey v. Pennsylvania, a 1992 SCOTUS case, essentially reaffirmed Roe v. Wade, although there was no firm majority for the reasoning why Roeshould be upheld.

^[7] I must confess some bias here. My first job as a lawyer was a one-year clerkship for the Texas Supreme Court. I remember the mild disdain with which the members of that Court viewed the United States Supreme Court, which they referred to as the “court in the sky.” That phrase expressed a combination of resentment that state Supreme Courts are every bit as supreme as the court in Washington, except in a different jurisdiction, and a substantially warranted feeling that state courts do most of the heavy lifting in cases that impact everyday lives and broader areas of law. Federal courts, for instance, have virtually nothing to do with divorce, child custody, property rights, or personal injury law. Yet it is the United States Supreme Court that hogs the headlines. More than anywhere, this is where the temptation to act as the “court in the sky” comes from.

Justice Brett Kavanaugh and Mississippi inmate Brett Jones share more than their first name. They both have incidents in their past that have followed them since. Justice Kavanaugh got a second chance. Jones, in part because of Kavanaugh, apparently will not.

Justice Kavanaugh wrote the majority opinion in Jones v. Mississippi, released earlier this week. In 2004, Jones, fifteen years old, killed his grandfather after an argument about Jones’s girlfriend. He was convicted of murder, and under Mississippi law was sentenced to life without possibility of parole, even though the evidence showed he had suffered through an abusive childhood and was at the time of the murder without his anti-psychotic drugs. After his conviction a series of Supreme Court opinions had seemingly eliminated life without parole for minors, by limiting life without parole to minors found to be “permanently incorrigible,” Jones sentence was reconsidered, but once again he was denied even the possibility of parole. Jones had served his time in prison without incident. His argument was that he was at least entitled to be considered for parole, because there had been no finding at the time of his conviction that he was “permanently incorrigible,” and the State failed to even offer any evidence of such. No, Justice Kavanaugh said, even in the absence of such a finding condemning the teenager to a life behind bars was constitutional.

Many commentators have found that opinion rather harsh, coming from the justice who raged at the Senate Judiciary Committee for daring to investigate allegations of teenage rape against him. What, he asked the Committee, do my teenage years have to do with my current fitness? Brett Jones, as he languishes in a Mississippi prison, would like to a hearing to ask that question. That, however, is an issue for the Twitterverse. The more troubling aspect of the case, I believe, is how the Court seems to have gone out of its way to affirm a disturbing result. Jones’s resentencing had already been affirmed by the Mississippi Court of Appeals. The Supreme Court didn’t have to take the case. Why did they? All Justice Kavanaugh tells us is that the Court took the case in order to clear up some disagreements among lower courts about how to interpret the prior caselaw. He fails to tell us what those disagreements are.

In fact, what the case really suggests is a concern for logical tidiness over actual justice. At the end of the opinion, Justice Kavanaugh writes “This case does not properly present—and thus we do not consider—any as-applied Eighth Amendment claim of disproportionality regarding Jones’s sentence.” That is lawyer talk for “we’re not worried about whether the law leads to an outrageously unjust result in this case.” We don’t care whether Brett Jones is actually suffering cruel and unusual punishment, given all the circumstances.

The 16^th Century Protestant divine William Perkins, who wrote at length about equity as both a legal and a moral value, gave youth as an example of things that should mitigate the harshness of the law. In Perkins’ England, convicted thieves got hanged. What about a minor, Perkins asked? No, “[t]he equity or moderation, I say, in this case is not to inflict death, for that were extremity, but to determine a punishment less than death: yet such a one as shall be sufficient to reform the party from his sin, to punish the fault, to terrify others and to satisfy the law.”

The question before the Court in Brett Jones’s case was not whether he should be released. All he was asking is that he be allowed to make his case to the parole board. What purpose is served by denying him that right? Perkins lists four purposes for punishment: reformation of the wrongdoer, retribution, protection of society and satisfaction of moral standards. The first and third purpose – whether Jones has been reformed and whether society still needs protection from him – would be the subjects of the parole hearing. The fourth, satisfaction of moral standards, seems to weigh in Jones’s favor. Even Justice Kavanaugh acknowledges that mandatory life sentences for minors are increasingly frowned upon. So that leaves only retribution.

Retribution is a complex topic. The root sense of the word goes back to tribute, and then to tribe. It is a payment to society to restore the imbalance created by an unjust act. Retribution in this sense lies on the spectrum between restitution, which is repayment for damage done to an individual, and vengeance, which is the eye for an eye concept, payback in the current, street sense. More importantly, retribution is a form of judgment, a declaration that certain behavior violates social norms. Jones’ grandmother, the widow of the murdered victim, lobbies for his right to a parole hearing, calling him a changed person. That’s certainly relevant, but not conclusive, because the right to retribution is not merely, or even primarily, personal to the victim. Society holds it. Has society’s interest in retribution been satisfied here? Would our interest in declaring Brett Jones’s crime out of bounds be impaired by giving him a parole hearing? I think the better question is this one: Are we so sure of our judgments that the declaration, many years ago, that the teenager was so dangerous, and what he did so horrible, that he should never even be considered as a candidate for redemption? That, is effect, is what the Court says about Brett Jones. It doesn’t say so explicitly; it ducks the question

Oliver O’Donovan points out, Christians believe that human judgments, which can never be perfect, approach perfection only when they mirror the judgment that God might render. And God, we believe, never declares anyone beyond redemption. Nor does the possibility of pardon, to which Justice Kavanaugh alludes at the end of his opinion, change that. The practice of executive pardon, as we saw with the closing days of the last presidency, is so corrupt, so random, that it insults, not promotes, the principles at stake in Brett Jones’s case. Justice Kavanaugh seems only to want to shift moral responsibility for Brett Jones’ predicament away from the Court. An understandable instinct, certainly, but there was a better course. Perkins writes “no lawmakers, being men, can foresee or set down all cases that may fall out. Therefore, when the case altereth, so must the discretion of the lawmaker show itself and do that which the law cannot do.” The Court could have sent the case back and ordered the trial court to make a finding on Jones’s “permanent incorrigibility.” I don’t know whether Brett Jones is worthy of parole or not, but Brett Kavanaugh doesn’t either. The Court could have allowed him his chance to prove he is. Instead, it swallowed its whistle. Shame on them.

Everyone seems to have adopted a pandemic project: learn to bake scones, run a marathon on a treadmill (assuming you have a treadmill, because good luck buying one), write a novel, teach yourself Greek or Gaelic, clean out your closet or your inbox. One of my projects, given that Anne makes Texas’s best scones and we don’t own a treadmill, is to read all 208 of Samuel Johnson’s Rambler essays. Johnson published them from 1750 to 1752, twice weekly on Tuesday and Saturday. To replicate the reading experience as best I could, I’ve also been reading two of them a week, if possible on the appropriate day.

Last Saturday’s fare was no. 24, published by Johnson in June 1750. Rambler 24, at first blush, seems an anti-science rant. “When a man employs himself upon remote and unnecessary subjects,” Johnson writes, “and wastes his life upon questions which cannot be resolved, and of which the solution would conduce very little to the advancement of happiness; when he lavishes his hours in calculating the weight of the terraqueous globe, or in adjusting successive systems of worlds beyond the reach of the telescope; he may be very properly recalled from his excursions by this precept, and reminded, that there is a nearer being with which it is his duty to be more acquainted; and from which his attention has hitherto been withheld by studies to which he has no other motive than vanity or curiosity.”

Johnson then introduces us to Gelidus, “a man of great penetration and deep researches,” who, convinced that “the solution of some problems, by which the professors of science have been hitherto baffled, is reserved for his genius and industry” works away in his study, “into which none of his family are suffered to enter” so that “when he comes down to his dinner, or his rest, he walks about like a stranger that is there only for a day, without any tokens of regard or tenderness.” So absorbed in his studies is he that:

The family of Gelidus once broke into his study, to shew him that a town at a small distance was on fire, and in a few moments a servant came up to tell him, that the flame had caught so many houses on both sides, that the inhabitants were confounded, and began to think rather of escaping with their lives, than saving their dwellings. What you tell me, says Gelidus, is very probable, for fire naturally acts in a circle.

Walt Disney made the absent-minded professor a stock character for popular culture satire. But, of course, Johnson was no ignoramus. He once told Boswell “All knowledge is of itself of some value. There is nothing so minute or inconsiderable, that I would not rather know it than not.” He spoke admiringly of Newton, whom “had he flourished in ancient Greece, would have been worshiped as a Deity.” But Johnson lived just at the moment when the Scientific Revolution turned from theory to practice, and a century before the scientific method became now a way but the way of seeing the world. Johnson reminds us that there are other ways to look at things.

Thus, Johnson takes as the epigram for Rambler 24 the Greek aphorism “Be acquainted with thyself,” often attributed (tentatively) to Chilo of Lacedemon, a 6^th century Spartan philosopher. This “most revered precept of ancient wisdom” (as Johnson calls it) is not an early modern admonition to Paltrowesque self-absorption. Nay, it “may be said to comprise all the speculation necessary to a moral agent.” “For,” Johnson says, “what more can be necessary to the regulation of life, than the knowledge of our original, our end, our duties, and our relation to other beings.” This is a profoundly important concept. Morality, an essentially social concept, is only known through self-knowledge. We are social beings, and to act as if we are not is to betray our own essence, no matter how successful we otherwise might be. Thus, “the great praise of Socrates is, that he drew the wits of Greece, by his instruction and example, from the vain pursuit of natural philosophy to moral inquiries, and turned their thoughts from stars and tides, and matter and motion, upon the various modes of virtue, and relations of life.”

Johnson seems to be nodding towards a Thomistic notion of natural law, moral rules “written on the heart” of even the Gentiles, as Paul says in Romans. But, ever a true Anglican, Johnson, without renouncing Catholic theology, then raises the Protestant objection to natural law: “It is however very improbable that the first author, whoever he was, intended to be understood in this unlimited and complicated sense; for of the inquiries, which in so large an acceptation it would seem to recommend, some are too extensive for the powers of man, and some require light from above, which was not yet indulged to the heathen world.” That is, Scripture.

We would do well to keep Gelidus’s example before us, and Johnson’s admonition in mind, in these troubled times. We live in times of astounding scientific achievement: scientists invented, tested and brought to approval and distribution multiple Covid-19 vaccines, a process that some feared would take a decade. Yet, for every problem solved, many more remain. Some – economic inequality, for example – have been exacerbated, though not caused, by the pandemic. Others – climate change of course, for one – have been there, and remain there, even if the pandemic momentarily distracts us. Knowledge, lots of it, will be necessary to attack these problems. But scientific or economic knowledge will not be enough to solve them, because these are not ultimately (or even primarily) scientific problems. They are moral ones, because they ask questions about our relations with our neighbors (near and far), with future generations, and with our world. How much will we risk economic recession to suppress the virus? What reparations, if anything, do the descendants of slaveholders owe the progeny of slaves? How should we balance the needs of developing countries with the prospects of future generations when we make decisions about climate change? Science and economics can help us understand our options, but they cannot make the hard decisions for us.

“The proper study of mankind is man,” Alexander Pope tells us. Johnson, Pope’s finest critic, tells us the same thing. We are told daily to “follow the science,” but “respect the science” would be a better meme. Johnson tells us to spend our lives on answering questions that will “conduce…to the advancement of happiness.” Science will help us advance happiness, but where true happiness lies, Johnson says, is the more important question, and one that science cannot answer. For Johnson, happiness was a purely social phenomenon. To be alone was miserable; to be in company alone made life tolerable. “There is nothing which has yet been contrived by man,” Boswell reports, “by which so much happiness is produced as by a good tavern.” For, in order to be happy, we should “try and forget our cares and sickness, and contribute, as we can to the happiness of each other.”

Respect the science, then, but honor the emergency room nurses, the mailmen and UPS and FedEx delivery persons, the grocery store stockers and cashiers, the elementary school teachers. These are the people, as much as the scientists, that have looked within themselves, and, finding that our ends are social ends, our duties social duties, and our relations to other beings inextricable from our definition of ourselves, forget their own well-being at risk in order to contribute to ours.