The discussion continues! Br. Robert, OP, wrote the following excellent comment that I feel deserves the attention of everyone here at Saint Superman.

I think you’re right to focus on the phrase “government of the people” — which is a radical departure from more ancient forms of government, in which the right to rule was connected in some way or other with divinity. It is a very recent notion that the authority of government derives from the assent of the governed. It is more recent still to think that religion should operate in the same way.

That said, it is (ironically) Christianity that made such a notion even thinkable in the first place. One of the unique features of Christianity is that it proposes a faith with a deliberate distinction (not necessarily separation, but a definite difference) between faith and politics, between God and Caesar — even while acknowledging that Caesar’s authority is a gift from God. The distinction exists because government is based on Natural Law — which is common to every human community — and not on religious precept; and also because one of the requirements of Natural Law is to defend each person’s freedom to worship.

St. Thomas Aquinas, writing in a time when Church and State were intimately connected, noted that human laws can only have the force of law when they are expressions of Natural Law; the role of legislators (and, I would extrapolate, executors and judiciaries) is to discern the Natural Law and apply it to the particular situations under their provenance. It may not matter which side of the road we drive on, but it matters greatly that we all drive on the same side of the road. More importantly, it may matter little exactly how a murderer is kept off the streets, but it matters greatly that the public is defended against him. The Church is able to offer great insight into the Natural Law, and even greater insight into the Law of Love which goes beyond Natural Law; but she only offers principles. It is up to the authorized legislators to enact particular legislation based on those principles.

However, the idea of human law being a particular expression of Natural Law is light-years from the basic assumption of American politics, that law is “of the people,” that law expresses the will of the people. And yet, because we can’t escape the connection of law and morality, we tend to assume that something becomes morally acceptable when it becomes legal — or, if we want something illegal to become morally acceptable, we need to change the law. (I wrote a little about this on my blog.

I don’t have many ideas about how to change our way of legal thinking in this country. Simply raising the question is a start. Finding some way to involve our elected officials in the discussion would be a very good step.

He expresses quite well a concept I was struggling to get out in my original piece: the natural law. For all my circumlocuting about ethical systems and the consent of the governed, I could not locate, I could not elucidate this concept, that ultimately, there are things which are in accord with natural law, and things which are in opposition with it, and that the role of government is to put natural law into local practice, and yet, rather than doing that, most governments put a particular ideology into practice, an ideology almost always at odds with said natural law.

This allows a much firmer conclusion than I originally reached; I wrote about the “tyranny of consensus, a system to which nobody agrees” being both the inevitable and tragic consequence of government by consent of the people. That this would really lead to tyranny I do not doubt, a tyranny insofar as the state begins answering moral questions on its own, rather than relying on an unreachable consensus. But that’s a weak, weak conclusion, and I admit it. Br. Robert has zeroed in on the law written on the world itself as being the baseline, and that deviations from that are a violation of the spirit of man written by God, ultimately denying the dignity of man by denying him the ability to reach moral conclusions.

On his blog he quotes Thomas Aquinas, with whom I wish I was more than vaguely acquainted, as drawing the pivotal line at what morality can and should be legislated, and what should not be impressed upon free men and women:

The purpose of human law is to lead men to virtue, not suddenly, but gradually. Wherefore it does not lay upon the multitude of imperfect men the burdens of those who are already virtuous, viz. that they should abstain from all evil. Otherwise these imperfect ones, being unable to bear such precepts, would break out into yet greater evils…. (I-II q.96 a.2 ad2)

Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like. (I-II q.96 a.2)

As the root of the man’s freedom is his dignity as a free moral actor capable of making moral decisions. The state oversteps its boundaries when it tells man he cannot reach those conclusions on his own, but must conform to a state-sponsored morality. There is still an objective standard to which man must hold himself, though, and that natural law (which is taught in its fullness by Christ) is intimately connected to what is and is not just, and what is and is not moral. The state has usurped the judgment of both categories.

…we have not entirely lost the idea that law and justice are somehow connected, we seem to have reversed them: if something is legal, then it must be okay to do. Nobody cares if you get drunk, as long as you’re twenty-one and not driving — oh, except the people who genuinely care about you. Nobody cares if you look at pornography, so long as it’s obtained through legal means — again, except for the people who want you to be truly happy. Nobody cares how much money you make or what you do with it, unless you break some law along the way — need I say it? In short, using the law as a basis for morality essentially reduces a person’s goodness to whatever he or she can get away with.