Why do progressives have a reputation for open hatred of Catholics and Catholicism? Only because they keep publishing things like Peter Hammond Schwartz’s latest essay in The New Republic, entitled “Originalism Is Dead. Long Live Catholic Natural Law.” To get the full flavor, you must begin with the illustration of Justice Amy Coney Barrett as the pope:
The forces challenging the modernist ideal in America are now decisively led by conservative Catholics, not evangelical Protestants, with a new focus on claiming influence and power via America’s legal institutions, particularly the federal courts.https://t.co/BuL4LTTctk
— The New Republic (@newrepublic) February 3, 2021
There is a long and ugly tradition anti-Catholic writers and cartoonists portraying their enemies in the miter of a pope or bishop, going back to the days of the anti-Catholic Know-Nothings of the 1850s and their heirs in the 1870s and 1880s. This is illustrated by this Thomas Nast classic of the genre from Harper’s Weekly in 1871, portraying the nefarious threat of Catholic schooling:
Cartoonist Tony Auth kicked up a controversy with a 2007 cartoon about the Supreme Court’s decision upholding a ban on partial-birth abortion in Gonzales v. Carhart, depicting the five Catholic judges in the majority in miters over the caption “Church & State.”
TNR’s editors and illustrator Michelle Rohn — and Schwartz, if he signed off on using the image of Amy Coney Barrett — had to know exactly what card they were playing here.
Schwartz complains quite openly that there are too many Catholics in Congress and the courts:
Members of Congress are increasingly Catholic, especially in the Republican Party. As of the 2016 election, representation of Catholics in Congress had increased by a remarkable 68 percent since 1960, from 100 to 168, a total in excess of 31 percent of Congress (even as Catholics nationally have declined to 21 percent of the population, fewer than the 23 percent who in 2014 declared “None” as their religious affiliation). Between the 2008 and 2016 elections, the cohort of Catholic House Republicans nearly doubled, from 37 to 70, while the number of Catholic House Democrats fell from 98 to 74. Despite this significant Catholic overrepresentation in Congress, traditionalist Catholics — for whom the nineteenth-century Blaine Amendments, by which states sought to bar public funding of religious education, remain the bloody shirt they cannot stop waving — mewl incessantly about ongoing prejudice and discrimination.
Catholics are even more overrepresented in the judiciary. Nearly 30 percent of judges serving on the federal bench are Catholic. Six Catholics presently serve as justices on the Supreme Court, five of whom are Republican-appointed conservatives. A seventh, Neil Gorsuch, is a formerly devout Catholic who now worships as an Episcopalian. Antonin Scalia and Anthony Kennedy, the justices Gorsuch and Brett Kavanaugh replaced, were also Catholic. Which means nine of the most recent 13 justices have a Catholic background.
Yes, Schwartz complains that Catholics “mewl incessantly” and wave “the bloody shirt” of 19th-century laws that were explicitly targeted at Catholics and that the Supreme Court struck down by a 5–4 vote only in June 2020, over the objections of the Court’s liberals and to the horror of progressive commentators.
The essay’s atmosphere is full of familiar tropes of the Left. A shady, extreme, well-funded conspiracy is out to impose theocracy on America through the courts: “a 50-year saga of Catholic intellectual and theological penetration of the halls of power.” Naturally, “William F. Buckley, the devout and mystically inclined Catholic” is implicated as part of this “doorway to the medieval past.” Predictably, the Koch brothers are referenced, despite their conspicuously libertarian social views. The chief villains are “the three Leos — nineteenth-century Pope Leo XIII, twentieth-century German-American philosopher Leo Strauss, and twenty-first-century Federalist Society impresario Leonard Leo.” Schwartz uses the language of viral infection to describe the influence of Catholic thought:
The intellectual commitments and moral sensibilities of the new natural law have in recent decades penetrated many of the nation’s most significant media, political, legal, and educational institutions. NNL has passed seamlessly into the conservative intellectual bloodstream via organizations closely attached to the Federalist Society.
For Leonard Leo — depicted as having “more than a trace of Cardinal Wolsey” of 16th-century England — Schwartz relies on the views of Jeffrey Toobin, if you wanted a particularly vivid mental image of the mood of this essay. The Federalist Society is accused of bearing, for our popularly-ratified Constitution, “an Abrahamic fetish of the text as revelation.”
Schwartz portrays natural law as a conspiracy to impose Catholic theology:
The moral philosophy of natural law absorbs (from revelation and scripture) and communicates (into public discourse and legal practice) a quite specific understanding of the human individual as the summit of God’s creation, shaped in the image of God himself. Ideas about natural law date back nearly 800 years to the grand synthesis of Aristotle and Augustine in the Summa Theologica of Thomas Aquinas. These ideas assume intrinsic rational capacities of humans to properly perceive and pursue uniquely human goods and to deduce from these goods a system of moral precepts and ethics that become the framework for elucidating and codifying positive law. As Thomas wrote, “This is the first precept of law, that ‘good is to be done and pursued, and evil is to be avoided.’ All other precepts of the natural law are based upon this: so that whatever the practical reason naturally apprehends as man’s good (or evil) belongs to the precepts of the natural law as something to be done or avoided.”
As even Schwartz must concede, of course, the Catholic roots of natural law do not change the fact that it was also the philosophy underlying much of secular Enlightenment political philosophy, most notably the Declaration of Independence and, yes, the United States Constitution. But he sees its modern survival as “sinister.” Naturally, there is a digression on priestly sexual abuse, without even the vaguest effort to address its actual development.
In order to understand how elite enthusiasm for 13th-century Catholic philosophy relates to modern American politics, “we need look no further than Fox News,” Schwartz advises. Of course. He warns of “extreme and edgy publications” delivering a “Catholic fundamentalist message,” never mind that the very nature of religious fundamentalism is irreconcilable with the hierarchical and tradition-bound Roman Catholic Church.
The fundamental bait-and-switch of Schwartz’s article is his effort to tell the story of the Catholic integralism of Adrian Vermeule, Sohrab Ahmari, and Patrick Deneen as if it is influential on judicial originalists such as Barrett. We are told that “even legal conservatives like Harvard constitutional law professor Adrian Vermeule now concede these obvious failings of originalism.” And this proves that “it turns out that originalism’s real utility is its transactional value as a vehicle for other legal principles,” as if Vermeule is not an open critic and enemy of originalism. Only much later in the article does Schwartz address the conflict between the two camps, while insisting that this is a debate between “two sides of the same coin demarcated in a medieval currency.”
What is lost here is the fact that Vermeule is, despite the interest he inspires in some circles, an entirely marginal figure among the sorts of people who staff the federal judiciary and are active in the Federalist Society — in particular, Justice Barrett, whom even Schwartz concedes is a jurisprudential follower of Antonin Scalia, the monumental leader of the originalist camp. Nothing is cited to suggest that Justice Barrett has any jurisprudential sympathy with Vermeule, yet that does not spare her from caricature. Schwartz frames Justice Barrett as “the first justice to receive her law degree from a Catholic university” who “has spent almost her entire life in the ‘flyover’ places of America where ‘gentry liberalism’ is not the dominant fashion.” This ignores the fact that Notre Dame is hardly a cloistered bastion of Catholic orthodoxy (it gave Mario Cuomo an honorary degree in 1984), and that the mayor of Barrett’s city was Pete Buttigieg.
The New Republic should be ashamed and embarrassed by this, if its editors are still capable of such a sentiment.