Sotomayor, the Gospels, and the Tyranny of the COVID Bureaucracy

How did this country—once the beacon of liberty to the world—become a nation of lockdowns, mask mandates, and compulsory vaccinations? And how did we arrive at a situation where the purported leader of our country, Joe Biden, himself jokingly declares that the president is Anthony Fauci, the principal architect of our current COVID tyranny? How, in short, did we reach a point where freedom and individual liberty are completely subordinate to the dictates of a bureaucracy? These are questions that writers here at American Greatness have been asking for some time, most recently eloquently posed by Anthony Esolen and Glenn Ellmers.

Could there be a clue provided by the surprising comments from Supreme Court Justice Sonya Sotomayor, in the arguments last week over Mississippi’s recent abortion restrictions? The justice remarked to the lawyer defending the statute, “The issue of when life begins has been hotly debated by philosophers since the beginning of time. It’s still debated in religions. So, when you say this [the purported constitutional right to a pre-viability abortion] is the only right that takes away from the state the ability to protect a life, that’s a religious view, isn’t it?”  

Sotomayor’s views on abortion were the subject of withering criticism from, among others, George Washington University Law Professor Jonathan Turley (my former student, of whom I am well pleased), principally because there is no good constitutional defense of Roe v. Wade’s holding that terminating a pregnancy is a constitutionally protected right. But most revealing and most troubling is Sotomayor’s implication that Mississippi’s statute would be constitutionally suspect if it had a religious basis.

The justice and, one suspects, many if not most contemporary liberal lawyers probably now believe that no state or federal government may make legislative decisions based on a religious foundation because the prevailing interpretation of the First Amendment’s religious establishment clause is that neutrality on religion must be enforced by the court.

This notion has permeated our culture, first through the Supreme Court’s decisions in the 1960s prohibiting compulsory prayer or Bible-reading in the public schools, and most recently through the court’s similarly barring school-sponsored prayer at graduation ceremonies or football games, as well as prohibiting the display of the Ten Commandments in some courthouses, and of crosses on municipal seals. 

Serious students of the 18th and 19th century understandings of the First Amendment know that this is a wrong turn in interpretation, and that originally the consensus view was that earliest expressed by John Jay in Federalist 2 that Americans shared the same religion (Christianity), or by John Adams that our Constitution was made only for a moral and religious people, or by Joseph Story that it was the job of all our governments, including the federal one, to promote Christianity.

Following religious persecution by Nazi Germany, of course, it became more common to fear that any privileging of one religion over another, or any denigration of any particular religious practice, risked tyranny. But perhaps we should now recognize that in forgetting the framers’ basic lesson that there can be no order without law, no law without morality, and no morality without religion, we have taken a turn for the worse. 

The clear assumption of the bureaucrats who have injured freedom in pursuit of protecting us from a virus that, for most of the American population, does not pose a serious danger is that the prevention and control of disease is legitimately a paramount goal of public policy, and that individual autonomy must be sacrificed pursuant to this greater good.  

As Fauci himself recently explained it

I think each of us, particularly in the context of a pandemic that’s killing millions of people, you have got to look at it and say there comes a time when you do have to give up what you consider your individual right of making your own decision, for the greater good of society.

For Fauci, then, constitutional rights are subordinate to the bureaucracy’s decisions about what is best for the nation.

The framer’s conception appears to be something quite different. In order to understand this, one has to come seriously to grips with what the implementation of Jay’s, of Adams’, and of Story’s views would be. If the United States truly were a Christian nation, then the primary obligation of the citizens of our polity would be to follow the teachings of the New Testament, and most prominently the Gospels. While it would take a lifetime of study to capture all of the nuances of scripture, we can certainly limn a few of them.

First, the most important goal of the polity would be to glorify the Creator, humbly to acknowledge the greatness of creation and the sovereignty of the power of the Deity. Odd as this sounds to our ears, it was not so long ago that even an Ivy Leaguer could routinely declare that what should be done was done for “God, for country, and for Yale.” 

To make the point slightly differently, our current COVID policy (and one is tempted to say virtually all of the activities of the federal government) assumes that all there is, is the here and now, and the best we can ever do or ever achieve is to promote our creature comforts and satisfy our material concerns. 

The lesson of the Gospels, though, and particularly of John (in marked similarity to Plato, among some other ancients) is that this material world is not all there is, and that the highest and best task for humankind is to seek eternal life and spiritual well-being, through love of each other and of our Maker.

The spirit-crushing mask mandates and lockdowns, which deprived so many school children and their elderly relatives of the joy of human affection and human contact, we may eventually realize, actually cost us much more than the benefits they secured.

According to the Gospels, it would appear, security is not the goal of existence, rather worship, love, and charity are. Loving others also implies allowing them to choose between good and evil, and this is why Christianity has been seen by some of our wisest political commentators as demanding and ensuring a maximum of human freedom. 

The Gospels make clear that we are to render unto Caesar what is Caesar’s and to God what is God’s. But Caesar doesn’t get everything, and his jurisdiction is thus subject to limits. This is the same basic principle of limiting arbitrary power that is the essence of our Constitution, and we have cause to wonder whether many in the federal government, and Anthony Fauci in particular, understand this.

The most basic governmental insight of our framers was probably the ubiquity and inevitability of corruption, certainly rife in the world of the New Testament among the Pharisees and Romans and rampant in late 18th-century Britain. When the English authorities in the Board of Trade and the Ministry went too far in the late 18th century, American independence and the Revolution ensued.

Our federal government now appears to be suffering from an unparalleled arrogance and corruption of its own, and many of our state governments appear unable or unwilling to carry out the measures necessary to secure law and order, to say nothing of spiritual well-being. 

Many of us even doubt whether we still have free and fair elections. With liberty endangered, with corruption and incompetence rampant, we can only hope and pray for a spiritual renewal that might enable us to reject Justice Sotomayor’s pernicious “neutrality,” to return religion to its rightful place in our polity, and to escape our current risks of tyranny, anarchy, or revolution. 

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About Stephen B. Presser

Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Pritzker School of Law, and the author of “Law Professors: Three Centuries of Shaping American Law” (West Academic Publishers, 2017). In the academic year 2018-2019, Professor Presser is a Visiting Scholar in Conservative Thought and Policy at the University of Colorado, Boulder.

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