THE LAW ABOVE
Notre Dame Law School and Natural Law
Notre Dame Law School has recently been in the national news. Through the efforts of its Dean, G. Marcus Cole, it has convened a Religious Summit in Rome, Italy. This organization was founded by Dean Cole in 2019. The theme of this organization is religious freedom.
In his remarks in Rome, Dean Cole stated that the founders conceived of it (the U.S. Constitution) as a comprehensive approach to preserve, protect, restore and defend religious freedom in the United States and around the world.
He goes on to make the following statements:
There is a reason why cases involving religious freedom have come to prominence in the Supreme Court’s docket. It is because assaults on religious freedom have become so common in American life.
Those defending religious liberty also cannot lose sight of what is happening in the rest of the world. Darkness is reaching out in an attempt to envelop the earth, and crush religious freedom in places where it is most needed.
Persecution of Catholics and Christians around the world persists.
The Tradition Among Notre Dame Law School Deans
Perhaps the most notable of Notre Dame Law School (NDLS) deans, for his public positions, was Clarence Manion. He held the position from 1941 until 1952.
Dean Manion was a political activist, who was a passionate advocate against communism and its threat to the catholic religion. In this capacity, he started the Manion Forum, a national radio program. He was also one of the founders of the John Birch Society. (An American right-wing political advocacy group. Founded in 1958, it is anti-communist, supports social conservatism, and is associated with ultraconservative, radical right, or far-right politics, as described by Webb, Clive. Rabble rousers: the American far right in the civil rights era. Athens, GA: University of Georgia Press, 2010 )
During his tenure, Dean Manion founded the Natural Law Institute at NDLS in 1947. Its purpose was to promote natural law as a foundation for jurisprudence. This development was designed to put NDLS at the forefront of legal thought and teaching.
Natural law has a long history in the Catholic religion. Gratian, in the twelfth century defined it as divine law. One hundred years later, St. Thomas Aquinas in the Summa Theologica stated that natural law was the rational creature’s participation in the Eternal law. He went on to argue that natural law could be used to judge human laws. In his teaching, an unjust human law was not a law, but a perversion of the law. This reasoning which also found its way into some protestant teachings, led to a belief that religious Christians, especially Catholics, are empowered to determine whether civil laws are enforceable or not. This reasoning is supported by theological beliefs based on concepts such as faith, hope and charity.
Based on the central theme of natural or divine law, the logical result was for NDLS to present an historical role model for its students. This role model was personified by Sir (Saint) Thomas More. All students were taught to have the highest regard for Sir Thomas. When Henry VIII attacked the Catholic religion after it refused to support his divorce, this confronted Sir Thomas with a dilemma. After due consideration, he concluded that I am the King’s good servant, but God’s first. His statement was a succinct encapsulation of natural law. It cost him his head, literally.
For the most devoted of NDLS students, a Sir Thomas More Society membership within the law school was a method of expressing their beliefs.
Dean Cole began his position at NDLS on July 1. 2019. On October 11, 2019 William Barr, Attorney General of the United States, spoke to NDLS. His appearance was arranged by Dean Cole, who vigorously, in advance, defended his appearance as an expression of freedom of speech. Barr’s topic was Religious Freedom and Natural Law. One quote from his talk was, But, in fact, Judeo-Christian standards are the ultimate utilitarian rules for human conduct. He supported is assertions that attacks on the Christian religion are harming our society by adding:
Along with the wreckage of the family, we are seeing record levels of depression and mental illness, dispirited young people, soaring suicide rates, increasing numbers of angry and alienated young males, an increase in senseless violence and a deadly drug epidemic,…
Attorney General Barr also enlightened the law students with his position that the founders intended, through the constitution to establish the United States of America as a Christian nation.
Interesting statements from a twice serving Attorney General, widely criticized for his official actions and, at that time, openly advocating for the President with his second impeachment trial pending.
When confronted after the event, Dean Cole stated that he was exposing NDLS students to diversity of opinions.
The Study of Constitutional Law at Notre Dame Law School
I had the privilege to earn a law degree at NDLS. By coincidence, I was there when the U.S. Supreme Court issued its opinion in Roe v. Wade. One of my classes at the time was Constitutional law.
The professor who taught the course was an active anti-abortion political advocate. He was very upset by the decision. His conclusion was that anti-abortion advocates were defeated at the federal level. They would start to focus their efforts on state governments. An interesting phenomenon was to occur with these activities. The anti-abortion Catholics picked up an ally. That ally was the evangelical Christians. To the delight of both religious groups, the abortion issue galvanized voters and strengthened fund raising.
The rallying cry was that liberals were murdering babies. They learned to characterize fetuses as unborn children. All of the advocates held the Catholic belief that from the moment of conception, God imbued the fetus with a soul. This belief had originated as a response to the findings of Charles Darwin. Viability and science were no match against beliefs founded in religion.
My Constitutional law course turned into a semester of concentration on the first amendment. This pre-dated the current discourse on Christian Nationalism. The Founders, it was explained to us, intended to create a Christian Nation. The Establishment Clause was, thus, a non-sequitur. We spent days in class learning that Supreme Court decisions which held that issues such as, funding of religious schools at the expense of taxpayers and praying in school, were clearly erroneous. Interestingly, there were references to natural law in support of these conclusions.
We were treated to pictures of 5 week old fetuses, characterized as viable. We were warned that abominations, such as test tube babies (IVF) and human cloning were on the horizon. Additionally, under logic that most students never understood, we were given an explanation for the Supreme Court’s decision in Roe v. Wade. In the opinion of this professor, a decision in 1961which upheld the legality of access to contraception, led to the ruling that abortion under any circumstances was legal. This opinion was based on the reasoning that God’s prohibition of sexual intercourse, except for procreation, was inviolate. The Supreme Court had no legitimate basis for permitting a civil law ruling to the contrary. If your belief system supports this logic, then it follows that similarly, there is no legitimate basis for civil law support for any form of abortion, since a Catholic Pope in 1869 had pronounced that human life commences at the moment of conception. (Apparently this Papal pronouncement followed the 1859 publication of Charles Darwin.)
Natural or Divine Law once again provided the rationale for religion-based logic.
I have tried to avoid editorializing in this description. My Constitutional law course was an exercise in it. One thing I did learn was that it is a waste of time to discuss or argue, using any sort of logic, with people who believe something. This starts with the belief that human life begins from the moment of conception. This leads inescapably to the conclusion that abortion is murder. As we had learned in Criminal law, the definition of homicide is the killing of a human being by another human being.
If you can believe your way to life beginning at conception, then it is not a far stretch that you oppose contraception. As a matter of timing, contraception in the form of birth control pills was starting to become wide spread in 1973.
This same NDLS professor went on to author 2 books. One is entitled 50 Questions on the Natural Law – What it is and Why We Need it.
The second is entitled What Happened to Notre Dame. It followed from the University of Notre Dame inviting the President of the United States to give the commencement address and conferring an honorary degree upon him. The following is a quote from this work:
The honoring of Barack Obama was a deliberate flouting of the 2004 statement from the Catholic bishops in America asking that Catholic institutions "not honor those who act in defiance of our fundamental moral principles." The action of Notre Dame with regard to President Obama is "the most relentlessly pro-abortion public official in the world."
Dean Cole’s Religious Liberty Summit in Rome, Italy
In July of 2022 Dean Cole held the NDLS Religious Liberty iniative in Rome, Italy. Justice Samuel Alito delivered the keynote address. This followed the U.S. Supreme Court’s reversal of Roe v. Wade in Dobbs v. Jackson, authorized by Justice Alito, and rulings in favor of religious conservatives in other two cases.
The Dobbs case is widely viewed as the imposition of religious teachings upon women throughout the United States. It was thus, somewhat ironic that the keynote speaker at a meeting to promote freedom of religion was its author.
Justice Alito stated:
Religious liberty is under attack in many places because it is dangerous to those who want to hold complete power. It also probably grows out of something dark and deep in the human DNA – a tendency to distrust and dislike people who are not like ourselves.
During his talk, he attacked leaders of other countries and public figures who have criticized the reversal of Roe v. Wade. These included Boris Johnson of the United Kingdom, Emmanuel Macron of France and Prince Harry, the Duke of Sussex.
Other notable quotes included:
…to convince people that religious liberty is worth defending if they don’t think that religion is a good thing that deserves protection.
… a focus on how religion promotes domestic tranquility.
It (religion) provides a way for religiously diverse people to hold together and to flourish, …
As students of law, we were actually exposed to the constitution itself and were free to study the background of its authors and their intent. Freedom of religion and its practices and beliefs were indeed paramount in their final product, as amended by the first amendment, which reads in part:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ….
The framers of the U.S. Constitution were well aware of the results of historical government involvement in the imposition of religious beliefs in Europe. They were also well aware of the fact that many had escaped Europe and to emigrate to America. They were escaping violence and oppression that were the result of government mandated religious beliefs. What they escaped, including many and lengthy wars, was the opposite of domestic tranquility.
The Establishment Clause was brief and to the point. While our government is prohibited from imposing religion upon us, we are free to practice our religions free from government interference.
The founders of our Country based our social contract on practicality and reason. They did not look to natural or divine law to set forth our guiding principles. For over 200 years, the U.S. Supreme Court provided its interpretive function in the area of religion by enforcing the establishment clause literally and rationally. We have now moved into what many scholars find to be perilous territory.
By labeling a scholarly endeavor Freedom of Religion, with the imprimatur of Notre Dame Law School behind it. (The meeting in Rome is now featured prominently on the NDLS website.) While at the same time resoundingly endorsing and establishing the imposition of religious teachings upon the nation, it is reminiscent of the novel 1984 and its definition of Doublethink:
WAR IS PEACE
FREEDOM IS SLAVERY
IGNORANCE IS STRENGTH
My true hope and belief is that a large majority of this Country’s population is not ready for Doublethink. We respect religion, but do not want its beliefs imposed upon us through government laws and institutions, even if they are supported by a devotion to natural or divine law.
Henri DuLac
