The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)
I have a book coming out in a few weeks that argues that America’s deep divisions are the fallout from the Death of God proclaimed by the philosopher Friedrich Nietzsche in 1882.
But, I am asked, how can God be dead when most Americans say that they believe in God and almost half of Americans respond that they belong to a religious institution?
The phenomenon of the Death of God has to do with the meaning of God in the culture as a whole. God was the guarantor of the goodness of reality. Today, whatever we may say about God, that reassurance is missing. Americans don’t trust the universe and don’t trust each other.
I give examples in the book, but perhaps Exhibit A for the Death of God appeared recently, in a concurrence by Pennsylvania Supreme Court Justice David Wecht in Commonwealth v. Howard.
The case was simple enough. After a traffic accident, the police discovered that a three-year-old child had been riding in a “car-for-hire” alone in the backseat without a car seat and not wearing a seatbelt. The mother, who was a passenger in the front seat, was convicted of endangering the welfare of a child, a crime that can carry a sentence of five years in prison.
The court reversed the conviction 6-1.
The Justices were influenced by the fact that under Pennsylvania traffic law, if the mother had actually been driving the car, she could only have been convicted of a summary offense, and, at most, fined $75.
But in reasoning to that result, the justices were divided. In the lead opinion, Justice Debra Todd, joined by Justice Christine Donohue, stated that courts must consider the “common sense of the community” and the “sense of decency, propriety and the morality which most people entertain” in applying the child endangerment statute.
Wecht admitted in his concurrence that this has been the Pennsylvania rule, but he wanted no part of it, calling it “cant” that invited “morality pontifications” by judges.
Then Wecht went further. Pennsylvania courts adopted the sense-of-the-community standard to provide some content to the idea of the moral welfare of a child. That content lay in the notion of a “moral code which is part of God’s order in the world.”
Wecht criticized any such reference to God’s order: “Judicial attempts to channel and then saturate our law with the commands of a ‘Supreme Being’ may have had some place in the jurisprudence of a bygone era. In 2021, such attempts smack of nothing so much as breathtaking sanctimony.”
Wecht even quoted the great moral skeptic, U.S. Supreme Court Justice Oliver Wendell Holmes, Jr., in refusing to “supplicate the ‘brooding omnipresence in the sky.’”
Wecht teaches part-time at my own law school, Duquesne, and is rightly regarded as one of the most thoughtful state court justices in America.
He was just stating clearly what federal judges have said for years. Sometime ago, I wrote a law review article pointing out that in 1992, in a five-day period, every Justice on the U.S. Supreme Court joined an opinion in one of two cases that held that values are merely human constructs. In this view, there is no such thing as objective good and evil.
Nor is this a matter of ideological orientation. Liberal Justice John Paul Stevens was the most insistent on the irrelevance of morality for law and conservative Justice Antonin Scalia was the most insistent on the subjectivity of values. These are two sides of the same coin of the Death of God.
State court judges have been much slower to adopt modern notions of relativism and materialism. But now, with the Wecht opinion, it appears they are catching up.
This is the Death of God—the certainty that there is no moral order in the universe that human beings might discover and live by.
American law has not considered the consequences of thinking this way. Suppose two sets of parents decide to introduce their 13-year-old children to the natural joys of sex by setting up a secluded spot for them to spend a weekend engaged in lovemaking. I would have supposed that this endangers the welfare of the children, but now I am not so sure. Voluntary sex between 13-year-olds is not a crime.
Is it nonsense to think there is an objective morality that this might violate?
More fundamentally, how can the rule of law survive unless such values as consistency and objectivity are real? If the universe is just forces and matter, how can there be truth?
Is law really going to contradict Dr. Martin Luther King, Jr., and assert that there is no such thing as justice for the moral universe to bend toward?
I am also asked, if the Death of God really is the source of our divisions, what can be done about it?
Wecht’s opinion demonstrates that appeals to conventional notions of God are not helpful. As someone who has left his ancestral Judaism over just this issue, I know that people are not going to embrace traditional religion.
But there are efforts going on today to seriously investigate matters like “moral order in the universe.”
My book is a small step in that direction. It borrows from the theologian Bernard Lonergan to argue that the universe is on our side.
Systematic efforts are being made in biology and evolution—most noteworthy, by Nicholas Christakis—to demonstrate “the evolutionary origins of a good society,” the subtitle of his recent book, Blueprint.
Similarly, a kind of social and epistemological “defense of truth”—again the subtitle—was put forward in Jonathan Rauch’s best seller, The Constitution of Knowledge.
And there were earlier attempts that we are only now beginning to appreciate. The 20th century mathematician and philosopher Alfred North Whitehead set forth a process philosophy that found materialism to be an insufficient basis for scientific knowledge and argued that beauty directs the universe.
The point is, there may well be no God. But it does not follow that good and evil are just terms we make up.
Certainly, judges must follow the law rather than morality. But that law is not going to be value free. And in filling in those values, law should try to find, and align with, the normative order of the universe.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October. His opinions do not represent the position of Duquesne University Law School.
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