(The Return of) Ignatz, by Sam Heldman

Saturday, January 15, 2005

I would like to believe that somebody mis-heard
Justice Thomas expressly believes that "a judge should be evaluated by whether he faithfully upholds his oath to God, not to the people, to the state or to the Constitution"?

That's what a reporter for the B'ham News (a reporter who is reliable in my experience) says that one of Alabama's new Supreme Court justices said, at his investiture, that Justice Thomas told him personally within the last few days.

Now, if Justice Thomas really said that, that is quite a big deal. At the risk of stating the obvious in too many words, here's some explanation.

I do understand that some people believe that every aspect of their lives should be evaluated by whether they do what they think God wants them to do. I also understand that some people might believe that, if they assume the role of judge, they should conform their decisions to religious doctrine. This does not constitute judicial misconduct, but merely constitutes very bad judging in my view, if the person in question holds the jurisprudential view that laws and constitutions should be interpreted so as to be in conformity with their guess as to what God wants. If that's your jurisprudence, then you are a lousy judge in my view (because I don't believe that this is the overriding canon of interpretation of legal texts) but you are at least trying in some sense to do "law." (I'm bending over backwards to be philosophically generous here -- it should be obvious that such a jurisprudential view is absurd, but some people hold absurd views).

But -- if this quote is accurate -- Justice Thomas does not purport to have such a jurisprudential view, but instead he recognizes that there is a difference between a judge's fidelity to God and his or her fidelity to the constitution; that is the meaning of the assertion that you will be evaluated by your performance as to one rather than the other. Which does he choose? I think it fair to assume that a person who says that God will evaluate you on such-and-such, will try to do what he thinks God wants, right? So -- again if this quote is correct -- Justice Thomas has essentially admitted that he will make rulings based not on any view that they are correct as a legal matter, but because they are what God wants.

(Somebody could also believe that he will be evaluated as a judge based on his fidelity to God, but that God wants him to do straight law without a theocratic interpretive principle. That would make sense to me. But if that's what you believed, again you wouldn't speak in terms of a difference between fidelity to God and fidelity to constitution, in terms of one's evaluation as a judge; the grade would be the same on each, if God wants you to do straight law.).

So what's the deal? Did Alabama's new Supreme Court Justice really think he heard Justice Thomas say that? Did Justice Thomas really say it? It is, of course, impossible for any of us to get Justice Thomas under oath and ask him. We should, at least, create enough of a hubbub about the issue so as to make him feel that it is appropriate to issue a public statement confirming or denying that he really said it.

UPDATE: You can see, at Blue Mass Group, someone's transcription of the remarks by the new Alabama Justice. It is possible to read those remarks as meaning that what Justice Thomas was conveying, is that the oath to uphold the constitution is very important because it's an oath made to God, which would be a less problematic statement than the way the B'ham News paraphrased it. Whether this more generous interpretation is a better account of what Justice Thomas said, I don't know.

UPDATE UPDATE: Thanks to Juan Non-Volokh for the welcome back (and I will note that I have abandoned my theory that he is Miguel Estrada). But I think it's "unfair" and "misconstrues" this post to say (as he does, if I read correctly) that I was "unfair" to Justice Thomas and "misconstrued" his remarks. As you can see, this post was (1) based on the way that a newspaper reporter, whom I have found reliable, reported remarks attributed to him; and (2) explicitly based on the recognition that the attribution might be incorrect (see, e.g., title of post, and the various uses of "if" and like terms); and (3) updated as soon as there was better evidence of what remarks had been attributed to Justice Thomas. If Justice Thomas had in fact said what was originally attributed to him, I don't see how my reaction (which was based on that expressly tentative assumption) could possibly be described as unfair. Debatable, maybe. But given that the very conservative and religous Feddie (see comments to his linked post) agreed with me that the remarks would be troubling if correctly reported, "unfair" and "misconstrues" seem unwarranted to me. If I'm being overly sensitive to J N-V, I will try to chill.

UPDATE, Feb. 3: now, thanks to my sitemeter thingy, I know where Juan Non-Volokh works (or at least the university where he was getting his internet access a little while ago). There is no anonymity on the 'net, when you get right down to it. The secret is safe with me.

posted by sam 9:12 PM 39 comments

39 Comments:

Ignatz -- Arrived via Atrios' place. Thanks for posting this. I've written the reporter to ask him a couple of follow up questions and thank him and his editor for reporting the comments made by Justice Parker at his swearing in. I asked if he recorded the comments or took them down verbatim, whether others in the audience concur that they heard the same thing, and a couple of other things.

What else can we do help Steve make sure his story is rock solid and irrefutable? And then what should our next step be?

Thanks again. What kind of a country are we living in that we can't dismiss such a comment as apocryphal out of hand?

By Blogger Christa, at 7:48 PM  

More to the point, he took a very public oath with his hand on the bible to uphold the constitution, so what he's really saying is that he reserves the right to only undertake those obligations to God that he feels like upholding.

Of course, we knew that.

By Blogger julia, at 8:47 PM  

The story is already second hand news Parker tells reporter. Did anyone besides Parker hear the comments. Does Thomas acknowledge making the statement. This may boil down to nothing more than Parker's word versus Thomas. It will certainly not be proven regardless how many heard Parker make the statement.

By Blogger Norm, at 9:15 PM  

I doubt if Justice Thomas views himself as an "activist judge," primarily because he doesn't recognize the separation of church and state, and never has honored the oath he made to our Constitution when seated on the Supreme Court. Why? Because he, like GW Bush, is above the state...or at least his god or view of god is ascendant over the state, and over pesky things like the U.S. Constitution, or statutes or freedom-loving citizens.

I know it all sounds warped. Alberto Gonzales has the same attitude. Their version of the Bible is more important than our Constitution or Bill of Rights. In their warped minds, "activist judges" are the ones who rule in favor of the separation of church and state and hold higher the U.S. Constitution and Bill of Rights.

Therefore, who needs al Qaeda when we've got these types of religious fanatics trying to destroy our Democracy from within? I pray that they fail for the sake of the children and all the freedom-loving women who don't want to be terrorized by warped religious fanatics.

By Blogger LiberalPride, at 5:26 AM  

I guess God thinks it's OK to beat the shit out of a shackled prisoner:


SCALIA AND THOMAS SUPPORT BRUTALITY AGAINST PRISONERS: A recent case considered a Louisiana inmate who "was shackled and then punched and kicked by two prison guards while a supervisor looked on." The beating left the inmate "with a swollen face, loosened teeth and a cracked dental plate." The Court ruled the inmate's treatment violated the Eighth Amendment's prohibition of cruel and unusual punishment, but Scalia and Thomas dissented, arguing "the Eighth Amendment was not violated by the 'insignificant' harm the inmate suffered." In another case last year, Scalia and Thomas dissented from a 6-3 decision to ban the Alabama practice of chaining prisoners to outdoor ''hitching posts'' and abandoning them for hours without food, water, or a chance to use the bathroom. [Hudson v. McMillan, 1992; Hope v. Pelzer, 2002]

By Blogger Steve J., at 5:29 AM  

1) I don't think you've done justice to what Justice Thomas is likely to have meant (assuming for the moment that report is accurate). I would not profess to be an expert in how exactly Justice Thomas understands every aspect of natural law theory, but I think I understand in a broad way his basic approach to constitutional intepretation: universal principles of right and wrong supersede questions of original intent. The contrast here is w/Raoul Berger, who as an archetypal strict constructionist felt compelled to conclude that Brown vs Board of Education was wrongly decided because it violated original intent. For Justice Thomas, segregation is a clear violation of natural law, and hence questions of original intent are secondary. For Justice Thomas, striking down segregation would be an example of placing one's oath to God above a literal interpretation of the Constitution--which is the most likely example of the kind of thing Justice Thomas had in mind (assuming again that the quotation is accurate).
2) There is simply no legitimate way to move from a primary allegiance to God to the insinuation of "theocracy". One might well believe that one's oath to God requires the separation of Church and State. Jefferson remains quotable: "Can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God?" (Jefferson, Notes on Virginia 1782). For Jefferson, the very fact that human rights were a gift from God required the wall of separation between Church and State. This point is not merely antiquarian: in the case of Justice Thomas, said to be a practicing Catholic, I would presume he would consider himself bound by Dignitatis Humanae (1965), which requires Catholics to uphold "THE RIGHT OF THE PERSON AND OF COMMUNITIES TO SOCIAL AND CIVIL FREEDOM IN MATTERS RELIGIOUS" (available at www.vatican.va). There is no evidence or justification for moving from his belief in the primacy of his vow to God to the conclusion that he is a theocrat.
3. I'm afraid I can't find any coherent argument in paragraphs 4-6 of the original post; as best I can see, these merely ring the changes on the notion that any invocation of God is an indication that the public official in question is a theocrat. What would one do with the Declaration of Independence: we hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain unalienable rights...? Under the logic of paragraphs 4-6, was the Declaration the work of theocrats?
4. In general, I fear the original post and the comments are good examples of the theophobia now so widespread among the leaders of the current Democratic party. Creating a "hubbub" about these comments is likely to dig the party into a deeper whole than it is in already. If one wants understand how Kerry lost middle America, these posts would be a good place to start.

Cordially,

By Blogger GrenfellHunt, at 6:01 AM  

GrenfellHunt, I think that -- before dismissing the putative comments as nothing to worry about -- you should consider the context. Justice Parker was elected on the Roy Moore platform, expressly and overtly appealing to the notion that a public official should defy a court order that is binding on him, interpreting the U.S. Constitution, when he thinks that it is contrary to God's rules or preferences. Justice Parker then asks Justice Thomas to swear him in, in a small (even private, I think) ceremony. Any words that passed between the two of them at such a ceremony were, it is fair to infer, meant and heard as pretty darn important lessons about the role of Judge or Justice. If someone wanted to appeal to natural law theory in such a context, he would do so in some way other than by putting God in distinction to the people, state and constitution and declaring that the primary allegiance for the role of Judge or Justice should be to God rather than to the others. Someone wanting to advocate natural law, on such an occasion, would use words more calculated to suggest that allegiance to God is allegiance to the constitution. It is the recognition of the distinction, combined with the choice of God over constitution, that strikes me as extraordinarily serious.

Will we ever know for sure if Justice Thomas said this? We will if he says that he did. If he says that he did not, then maybe we will find ourselves in a "he said"/"they said", with "they" being Justice Parker and his wife, who was in attendance as well. That would be an unfulfilling outcome, but I believe that it is better than acting as though it's no big deal whether a U.S. Supreme Court Justice said such a thing or not.

By Blogger sam, at 6:34 AM  

And who is Judge Parker? Ignatz would know, but lots of us coming in via Atrios wouldn't.
From the Southern Party of Georgia:

"Those who have followed the Ten Commandments issue in Alabama will recognize Tom Parker. Tom Parker was one of Judge Moore's staff that was "fired" by then Alabama Attorney Bill Pryor after he "purged" Judge Roy Moore. Tom Parker ran against a sitting Alabama Supreme Court Justice who also helped "purge" Judge Roy Moore and won the election."

An interesting interview in the Crimson Plainsman. One Parker statement:
"I am coordinating the passage of the Constitution Restoration Act. And what that does, Article III, Section II allows Congress to create federal courts and their jurisdiction or limit their jurisdiction. The only court set up by the U.S. Constitution is the U.S. Supreme Court.

Article III, Section II also allows Congress to withdraw jurisdiction. So, this legislation would withdraw jurisdiction over the public acknowledgment of God."

In the bio on Parker's own campaign web site, we read that he is the Special Projects Manager for The Foundation for Moral Law, which defines its mission to:

"1) Defend America and her citizens' right to acknowledge Almighty God. Currently, the Foundation is heavily involved in the legal defense of former Chief Justice Roy Moore, including paying for outside attorney fees, as well as providing in-house counsel.

2) Educate the public about the U.S. Constitution and the Godly foundation of the United States of America.

3) Promote public policy through appropriate legislation and other government actions. In other words, to assist in reestablishing society with good morals and values as set forth in the Holy Bible."

Sound like the reporter heard it right.

By Blogger Doubting Castle, at 7:33 AM  

Two points:

1.) Thomas is a member of Opus Dei, the personal prelature of the Pope comprised of lay persons. It is reported that his mentor, Scalia, introduced him to Opus Dei and converted him to Roman Catholicism. They both attended the same church as the convicted spy, Robert Hanssen - who was also a member of Opus Dei.
(see the GQ Magazine article on Opus Dei by CRAIG OFFMAN - December 2003)

2.) As a member of Opus Dei, Thomas has sworn his professional services to the universal Church and the Pope, whom he must believe to be the vicar of Christ on earth - or in other words, the substitute for God.

Thus, when Thomas says that he takes his orders from "God," he is not necessarily referring to the supernatural Creator so much as he is most probably referring to his earthly "vicar." In fact, all Catholics, if they know it or not, are considered dual citizens of Rome, according to Church catechism, and are expected to pledge allegiance to Vatican law over their own country's "temporal" authority.

That Scalia and Thomas are so committed to the Pope should explain why Bush, a supposed Protestant, has been such an active visitor to the Vatican since these men gave him the Presidency.

Given Scalia's recent Church-State "antiseparation" statements, we should be very concerned about Opus Dei members on the SCOTUS bench.

By Blogger Jeremiah, at 12:29 PM  

Ah yes, when all else fails: Blame the Catholic Church.

Just curious, if this is all some grand Catholic conspiracy to take over the United States government, then why didn't Judge Bill Pryor, a devout Catholic by all accounts, play ball and take Roy Moore's side when he willfully disobeyed a federal court order?

By Blogger Steve Dillard (aka Feddie), at 2:40 PM  

Steve, the fact of the matter is one, and perhaps two, SCOTUS Justices have committed their temporal and professional services to a foriegn legal entity. In this case it is the personal prelature of "God's substitute on earth" and an organization that openly despises the concept of Church-State separation and secular liberalism in general. As a former Catholic myself I realize this has nothing to do with your personal beliefs, but that doesn't make it less bothersome to those of us who would like our SCOTUS Justices to be free of outside influences.

By Blogger Jeremiah, at 3:32 PM  

On two counts:
-One, there is no such thing as a member of Opus Dei. It is not a club, their is no membership.
-Two, neither Scalia nor Thomas are a part of Opus Dei. This has been Catholic beltway rumor for years, and it is based upon one tiny germ of truth, that Justice Thomas was friends with one person who was a part of Opus Dei before he converted, and it was not Scalia. The whole Scalia as mentor idea is completely bunk as well. I know both families and Opus Dei and this is false, completely.

By Blogger Downto, at 7:27 PM  

To Jeremiah, the Know-Nothing "former Catholic" (All shall tremble before the awesome knowledge and superior authority of the Former Catholic © !!!:

Where in the "Church catechism" does it say the Catholics are "dual citizens of Rome"?

What "Vatican law" do Catholics pledge allegiance to over US law? Temporal Vatican City law? Prudential judgments of the Church regarding various matters (i.e. Ostpolitik, the war in Iraq) which Catholics can faithfully disagree? Doctrine which accurately reflects the objective moral order? What?

Also, the Pope isn't a "substitute for God." Catholics do not consider him "God" (scare quotes or no). He's very much human. In fact the Pope is utterly and completely not-"God" that he goes to confession at least twice a week.

By Blogger Benjamin, at 3:00 PM  

Jeremiah: as a former Protestant, now a Catholic, I must tell you that your ignorant and preposterous remarks gave me the biggest laugh of the day. One continually comes across folks who swallow such hogwash whole in one gulp. And I usually discover that it's somebody who is either (1) completely unacquainted with Catholics or (2) an ex-Catholic who does not now, and never did at any time, have any clue about the Catholic faith. Usually (2). I am sorry, though, that some deluded bigot hoodwinked you out of the truth. God bless you and bring you home again.

By Blogger ELC, at 4:30 PM  

Dear Sam:

Thanks for your gracious response to my post. It's a kind and thoughtful rejoinder, and I'll try to discuss what I take to be the key points below.

1. I still don't see anyway to move from the statement that "one's first loyalty is to God" to theocracy. a) Any public official may face a conflict between his conscience and his sworn duty. The fact that religious believers express this potential conflict in terms of their relationship to God does not make the conflict different in principle from that faced by a non-believer. Last year public officials in some localities began issueing licenses for gay marriages despite the fact that they knew they had no legal authority to do so--that might be right or wrong, but it scarcely made them "theocrats". b) Loyalty to God may in fact actively require one to support separation of Church and State--to reiterate: a Catholic public official loyal to her Church would be required to support religious liberty even in the absence of any Constitutional guarantees. c)The posts elsewhere on this site about Justice Thomas' alleged links to Opus Dei--and the odd conclusions drawn from those links--suggest that my concerns about theophobia are not unreasonable.--Does silence on these three points in your post indicate perhaps a tacit consent?
2. The decision to draw attention to the context of Justice Thomas's remarks underlines my point: there's nothing in the literal meaning of Justice Thomas's words that indicates he supports theocracy.
3. I don't have apt citations from Justice Thomas's confirmation hearings at my beck and call, but his affirmation of natural law theory over against strict constructionism was what was philosophically interesting about his nomination: in the hey-day of Reagan-Meese strict construction, President Reagan nominated a natural law theorist who explicitly rejected strict construction as a conservative. I don't think Thomas's commitment to natural law is in serious question--although how he applies it in any specific case is.
4. Re Judge Parker: I'm reluctant to address this in detail--I confess to knowing little or nothing about Judge Parker except what I see posted here at Ignatz. So my ability to comment on him is limited. A few notes on the excerpts from his website that one poster thought significant:
"1) Defend America and her citizens' right to acknowledge Almighty God." I would think that the citizen's right to acknowledge God would be defended strongly by the ACLU and by anyone who supports the 1st Amendment.
"2) Educate the public about the U.S. Constitution and the Godly foundation of the United States of America." The reference to "Godly foundation" is so vague as to be meaningless; what evidence is there that he uses it to advocate theocracy?
"3) Promote public policy through appropriate legislation and other government actions. In other words, to assist in reestablishing society with good morals and values as set forth in the Holy Bible." Pretty much Jefferson's words exactly; and nothing that Martin Luther King didn't agree with either. For that matter, pretty much every black preacher in America today would agree with it too--and 85% of them voted for Kerry and the Democratic Party. More secularized Americans might be uncomfortable with this language, but it's not evidence of theocracy.

What would constitute evidence of theocracy?

Specifically:
a) There is no call to legally and constitutionally recognize the US as a Christian nation. (Cf. the Texas GOP). As someone who has lived in Europe for much of the last decade, I'm used to living in countries that think of themselves legally as Christian (England, Germacy, etc)--but they are not theocracies. I do think they have a very misguided approach to separation of Church and State, and I would warmly oppose bringing that to Texas, Alabama or the US of A. But I would hope lawyers--who make a living being excruciatingly precise in their terminology--would seek more exact terminology than "theocracy" to describe such misguided policies.
b) I don't have access right now to the Oxford English Dictionary, but the on-line Oxford Dictionary defines theocracy as: "a system of government in which priests rule in the name of God or a god." If we subsitute clerics for priests (to allow some Muslim groups to qualify as theocracies), there is still no evidence that either Justice Thomas or Judge Parker favors anything of the kind.

Anyhow, thanks again for your post and for dropping by website!

Cordially,

By Blogger GrenfellHunt, at 10:37 PM  

Grenfell: I’ll try to respond to as much as I can of your comment, in the little time I’ve got this morning. And it’s all going to take us a bit of distance from the original post, given that the Birmingham News’s paraphrase of Justice Parker’s comments, which was what originally caught my eye, turns out to have been inexact. Like Atrios, I recognize that the remarks that Justice Parker attributed to Justice Thomas are significantly less problematic than originally reported by the Bham News. Anyway, on to some of my response to your points:

I agree that a person with strong but non-religious moral views can find tension between those views and the role of judge. It is possible that people whose moral views are religiously-based have more difficulty wrestling with this tension than do the irreligious-moral, because God’s disapproval is a uniquely powerful motivator for those who believe they can predict it. I don’t know. I don’t believe that the Mayor of San Francisco was guilty of ignoring the law in favor of his own non-legal preferences/beliefs; I think he had an arguably correct legal (not moral, but legal) theory as to why he was required to do what he did. The difference between theocrats (and their irreligious counterparts who subjugate the law to their own moral code, if there are any such people) on the one hand, and law-people on the other, is whether they – internally and externally – think through the problems as a matter of law, or whether they say to themselves and others that when law conflicts with “x”, “x” wins. My problem with Justice Thomas’s comments, as initially reported, was that if the comments had been accurately reported, they would have put him on the wrong side of that line.

If I were a judge, my method of constitutional interpretation would – as to some constitutional questions – include reference to evolving notions of decency and justice. That is a theory of constitutional interpretation that many Supreme Court Justices have followed. It is a theory of constitutional interpretation, whether one agrees with it or not. That is what makes it different from a hypothetical judge who said to himself or to the public, “Whether or not the law and constitution (correctly read) so provide, I shall vote for outcome ‘x’ because my oath to God requires me to do so.” Maybe you agree with me on this, that such a person should not be a judge.

I know that many people with strong religious beliefs are great judges and great political leaders. The current “theophobiaphobia” is an invention by the Karl Roves and Bill O’Reillys of the world to divide people and win elections. You may see a relative handful of theophobes; they are not a strong force in society, I believe. Christians dominate this country in every way, so don’t worry. (This may sound snotty, but I mean it in a non-snotty way. To the extent that Christians claim that they are under attack and don’t have as much power or respect as they should, it in fact makes people like me worry even more that they ARE trying to move towards theocracy). I know nothing about Opus Dei (did listen to Da Vinci Code on a book on tape, hated it, and suspect that it’s 100% hooey) and am not particularly interested in whether any judge is a member. I am interested in what judges do as judges, and what they do to our society for good or bad.

2. Don’t dismiss “context” as an important guide to meaning of language. Even Justice Scalia will tell you this, ad nauseam!

3 and 4 will have to wait for some other day – got to go.

Defining “theocracy,” in the way that I and other modern lay people use the term, is a long project. Roughly, it includes at least a government in which elected or appointed officials feel it appropriate to make individual decisions based on their view as to what God wants rather than what the law requires. The trigger for my post had been the reporting that Justice Thomas made a statement indicating something like this. Also, a government that includes “too many” laws that are motivated purely by religious belief would, to my eye, count as a theocracy. How many is too many? I can live with “no liquor stores open on Sunday” laws, though they bother me. I can even live with no-parking rules that make explicit exception for those hours during which a nearby church is having Sunday services; I’ve seen lots of those, and they bother me greatly insofar as they don’t treat local union meetings the same way, but I can live with them. But there would come a point in which there are so many such laws, that a non-believer would feel that the government is being run according to religious belief, and that’s a theocracy in my book.

If you respond further and I don’t, don’t be offended – just means I’m busy for a couple of days.

By Blogger sam, at 6:22 AM  

Dear Sam:

I think both of us have real jobs, so no, I won't be offended if you take some time to answer! I appreciate your taking as much time as you have done already!

1. Under your definition of theocracy, is Dr Martin Luther King a theocrat, and thereby disbarred from serving as a judge? (I waive here the issue of getting Dr King through law school, admitted to the bar, etc--it's his legal views that interest me here). His views on law are set forth in his Letter from a Birmingham Jail (16 April 1963):

"You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court's decision of 1954 outlawing segregation in the public schools, it is rather strange and paradoxical to find us consciously breaking laws. One may well ask: "How can you advocate breaking some laws and obeying others?" The answer is found in the fact that there are two types of laws: There are just and there are unjust laws. I would agree with Saint Augustine that "An unjust law is no law at all."

"Now, what is the difference between the two? How does one determine when a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of Saint Thomas Aquinas, an unjust law is a human law that is not rooted in eternal and natural law."

That seems to be exactly the view excluded by your last post.

2. Are the authors of the Declaration of Independence theocrats? They flatly rejected British laws and the British constitution--and did so expressly in the name of the laws of nature and of nature's God. Jefferson in particular knew his Aristotle, and the Declaration of Independence follows closely Aristotle's views in Rhetoric 1.13-15 (excerpts post at presidentaristotle.blogspot.com):

"If the written law tells against our case, clearly we must appeal to the universal law, and insist on its greater equity and justice. We must argue that the juror's oath "I will give my verdict according to honest opinion" means that one will not simply follow the letter of the written law. We must urge that the principles of equity are permanent and changeless, and that the universal law does not change either, for it is the law of nature, whereas written laws often do change. This is the bearing of the lines in Sophocles' Antigone, where Antigone pleads that in burying her brother she had broken Creon's law, but not the unwritten law:

Not of to-day or yesterday they are,
But live eternal: none can date their birth.
Nor would I fear the wrath of any man
And brave God's vengeance for defying these.

We shall argue that justice indeed is true and profitable, but that sham justice is not, and that consequently the written law is not, because it does not fulfil the true purpose of law."

Here Aristotle counsels those making speeches in courts of law to boldly appeal for the nullification of written laws when they violate unwritten universal laws of justice.

3. As for theophobia being principally an illusion of Karl Rove: I think there are key pockets of American society where theophobia is quite intense--American academia being one place. One of the pleasant things about studying at Oxford was Oxford's freedom from the hostility to religious belief that is the warp and woof of much of American academia: visiting American students who are believers pick up on this aspect of British universities very fast. Oxford dons are scarcely more (or less) believing than American believers--but they rarely exhibit the hostility towards belief that is so characteristic of the American professoriate.
As for theophobia not being an issue since most Americans are Christians: five Americans on the Supreme Court is all it takes. And I think it was David Broder who pointed out some years ago: the biggest gap between media elites and the average American is not liberal vs conservative--it's that media leaders rarely if ever go to church...and often project little but contempt for those who do. At a certain point, the DNC needs to ask some honest questions about "What's the Matter with Kansas?" Bill Clinton got it (mostly)--Kerry never did.

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