CHAPTER 4 On Aquinas and That Other First Principle of Moral Judgment

“No axiom of Euclid appears more evident than this.” Those, as we have seen, were Thomas Reid’s words, expressing the axiom that really stands as the first principle of all moral and legal judgment: “To call a person to account, to approve, or disapprove of his conduct, who had no power to do good or ill, is absurd.”¹ Admittedly, in giving that standing to this proposition, I may have set up a rival to the axiom that Aquinas offered to us as the true “first principle of practical reason” (primum principium in ratione practica): “that good is to be done, evil to be avoided” (bonum est faciendum et prosquendum, et malum vitandum).² That principle captures the logic of morals: that the good is higher, more desirable than the bad; that the good should be promoted and the bad discouraged, forbidden, and at times punished.

But of course, Aquinas’s principle does not tell us the substance of the “good” that we are urged to commend and support, or of the “evil” that we are enjoined to condemn and even punish. Switch the understanding of what counts as good, and we would arrive at the logic firmly in place in the Mafia: the “goods” are loyalty, obligation, and obedience, and the “evils” are any moves to undermine the criminal enterprise or save yourself by giving evidence against your brothers. The Witness Protection Program is testimony to the fact that such “evils” are punished severely as an obligatory part of the code. In that way, even members of the Mafia apply the logic of Aquinas’s first principle.

In contrast, it seems to me that Reid and his most attentive American reader, James Wilson, had it right on what runs to the root in first principles. The proposition they offer gives us something substantive.

And yet, nothing I have said in bringing out the force of Reid’s “first principle of moral and legal judgment” can possibly diminish the import of the “first principle of practical reason” captured by Aquinas. It too is one of those things so fundamental that it works on our lives without stirring much awareness. Aquinas simply followed Aristotle in his opening observation in the Politics: that in every act we take to seek change or oppose change, we must have at least some rough understanding of what things are good or bad, better or worse.

That sense of things quickly connects to the law. John Stuart Mill got to the core of the matter when he observed that “we do not call anything wrong unless we mean to imply that a person ought to be punished in some way or other for doing it.” As he went on to say: “We call any conduct wrong, or employ, instead, some other term of dislike or disparagement, according as we think that the person ought, or ought not, to be punished for it; and we say it would be right to do so and so, or merely that it would be desirable or laudable, according as we would wish to see the person whom it concerns compelled, or only persuaded and exhorted, to act in that manner.”⁶

And so, for example, if it is wrong to torture infants, it is the kind of thing which we are obliged to refrain from doing, the kind of thing that we may rightly be restrained from doing—or punished for doing.

What is remarkable is how this elementary logic still enters our politics and confounds people at every turn, even today. And so, in the mid-1980s the Senate Judiciary Committee held hearings on the matter of fetuses’ feeling pain during abortions. One witness, Dr. Richard Berkowitz, objected to the presence on the panel of Dr. Bernard Nathanson. Nathanson had been one of the early leaders in the cause of legalizing abortion, but he had later—and dramatically—shifted sides to become a pro-life activist. Dr. Berkowitz objected. He said that Nathanson was not “disinterested”—he had a settled view on the matter of abortion. Orrin Hatch, the chairman of the committee, asked Dr. Berkowitz whether he himself did not have a settled view on this matter. Berkowitz insisted that he did not; he had no moral judgment either for or against, even though he was, at the time, the director of the division of maternal-fetal health at the Mount Sinai Medical Center. But, Hatch said, Dr. Berkowitz, you perform abortions.⁷ As far as Berkowitz could see, he was simply “pro-choice”—he would perform abortions for people who chose them, but he did not push the surgery on anyone who had an aversion to it. He was evidently far from seeing the logic that ensnarled his position. But he was joined on the panel by Professor Daniel Robinson from Georgetown, a notable figure in the neural sciences. It fell to Robinson to address these pointed remarks to Dr. Berkowitz:

…whether you say you favor abortion or not, if in fact you actively performed these during your professional career, this is a sufficient statement; it is a non-verbal statement. I would regard you, Dr. Berkowitz, as someone incapable of doing anything that you judge to be morally wrong, and so if you do abortion one would judge that you do not find in that act a moral wrong.

I don’t see what this waltz is about. If you don’t regard abortion as morally wrong, why would you be diffident about reporting the number of times you have performed the service? And if on the other hand you consider that there is something tainted about the practice, why would you continue to defend it?⁸

The spurious logic followed by Dr. Berkowitz was but an echo of something far more momentous in our political life. It was a precise reflection of Stephen Douglas’s position during his famous debates with Abraham Lincoln in 1858. Douglas was trying to hold together two wings of his Democratic Party: a Southern wing favoring slavery and the recent holding of the Supreme Court in the Dred Scott case, and a Northern and Western wing, more disposed to keep blacks and slavery out of their territory. And so he professed himself to be “neutral” on the question of slavery. He professed, that is, to have no settled moral judgment on the matter. He was simply “pro-choice,” we might say, for people in the new territories of the United States: they should be free, under the banner of popular sovereignty, to vote slavery in or out of their respective territories.

But as Lincoln pointed out, Douglas was not at all neutral—he had indeed reached a moral judgment on slavery. If he thought, for example, that it was wrong for one person to own another human being as a slave, then it would be wrong for anyone to own a slave, and no one could be rightfully free to choose slavery:

When Judge Douglas says he “don’t care whether slavery is voted up or voted down”… he can thus argue logically if he don’t see anything wrong in it; but he cannot say so logically if he admits that slavery is wrong. He cannot say that he would as soon see a wrong voted up as voted down. When Judge Douglas says that whoever, or whatever community, wants slaves, they have a right to have them, he is perfectly logical if there is nothing wrong in the institution; but if you admit that it is wrong, he cannot logically say that anybody has a right to do wrong.⁹

By Aquinas’s “first principle” of practical judgment, if Douglas regarded slavery in any way as wrong, he would not be free to choose it—and neither would anyone else.

That was the logic that Lincoln employed with even more devastating effect in the last moments of his final debate with Douglas at Alton, Illinois, when Lincoln noted that he had but ten minutes left. In those ten minutes he brought together every strand in his argument and took the steps that led to that powerful, culminating sentence, “Why there is no greater Abolitionist in the country than Douglas after all!” In the argument leading up to that jolting last line, Lincoln not only destroyed Douglas’s argument; he destroyed Douglas’s party as well. He made it impossible for Douglas to receive the nomination of a united Democratic Party for president of the United States, and in dividing the Democratic Party, Lincoln made possible his own election. It all turned again on that same logic of morals—and Aquinas’s first principle.

In those ten minutes, Lincoln destroyed the “straddle” that was central to Douglas’s argument and his political position. Douglas’s political task was to keep the main wings of the Democratic Party behind him in a run for the presidency. For his critical Southern wing, he had to offer a strong defense of the key holding in the Dred Scott case: that a person may not be dispossessed of his property in a slave because he enters a territory of the United States where slavery has been forbidden. On the other side, Douglas had to keep the support of the Northern and Western wings of his party, including the people who were not supportive of slavery in their states or territories. Some of them were opposed to slavery, while others were simply opposed to having blacks move in at all, in competition with the labor of whites. For those people Douglas offered the formula of “popular sovereignty”: he didn’t “care,” as he said, whether slavery was voted up or down in the territories as long as that judgment was the sovereign decision of the people voting in those territories.

But the two policies were in evident, powerful conflict. If the Constitution meant that owners could not be deprived of their property in slaves when they entered a new territory, then the people in that territory were no longer free to vote slavery out. The holding in the Dred Scott case would trump, as we used to say, the whole scheme of popular sovereignty. That new constitutional right would take precedence over any illusion of “popular sovereignty” that could keep slavery out of the territory.

Lincoln brought out that conflict in a sharp way. And that compelled Douglas to flex his considerable genius in order to find a way out of the contradiction. He offered the best finesse that his genius could supply by drawing on an argument made by that notable statesman—as he called him—Senator Jefferson Davis of Mississippi. The argument ran this way: It was one thing to pronounce a constitutional right, as in the right not to be dispossessed of property in slaves; but that right would remain but an “abstract right” without local or municipal regulations to support and enforce such a right, especially in a community in which the dominant local sentiment was hostile to it.¹⁰ There was the key: the local people could make their opposition effective simply by withholding those local laws and the willing enforcement that this new “constitutional right” would require. In Dred Scott the Court had conferred a right not to be dispossessed of property in slaves. But a local community in the North could make a virtual nullity of that right simply by withholding their willingness to respect that right and enforce it.

Lincoln said, with genuine incredulity, that this was “a monstrous sort of talk about the Constitution of the United States! There has never been as outlandish or lawless a doctrine from the mouth of any respectable man on earth.”¹¹ As Lincoln pointed out, any officer of a state or territory must take an oath to respect the supremacy of the laws and Constitution of the United States. But now he would be told that there is a new constitutional right, a right not to be dispossessed of property in slaves. Would that officer now be free to withhold his respect for that right—would he be free to act in such a way as to make a nullity of that right?

Lincoln had made the decisive connection right away to the Fugitive Slave Clause of the Constitution. He himself felt obliged to respect the Fugitive Slave Clause because it was, as he said, “nominated in the bond”: it was a concession that had to be accepted if we were to have this Constitution. As to the right declared in Dred Scott, Lincoln said that he was opposed to it and would seek to overturn it. But if he had thought that it was a constitutional right, he would have felt obliged to respect it, just as he felt obliged to respect the Fugitive Slave Clause.

And so he said, “If I believed that the right to hold a slave in a Territory was equally fixed in the Constitution with the right to reclaim fugitives, I should be bound to give it the legislation necessary to support it”: “No one can show the distinction between them [in the standing imputed to them as constitutional rights]. The one is express [in the Constitution], so that we cannot deny it. The other is construed to be in the Constitution, so that he who believes the decision to be correct believes in the right. And the man who argues that by unfriendly legislation, in spite of that constitutional right, slavery may be driven from the Territories, cannot avoid furnishing an argument by which Abolitionists may deny the obligation to return fugitives, and claim the power to pass laws unfriendly to the right of the slaveholder to reclaim his fugitive.”

And then, with the momentum that would carry him to his conclusion:

I do not know how such an argument may strike a popular assembly like this, but I defy anybody to go before a body of men whose minds are educated to estimating evidence and reasoning, and show that there is an iota of difference between the constitutional right to reclaim a fugitive, and the constitutional right to hold a slave, in a Territory, provided this Dred Scott decision is correct. I defy any man to make an argument that will justify unfriendly legislation to deprive a slaveholder of his right to hold his slave in a Territory, that will not equally, in all its length, breadth and thickness furnish an argument for nullifying the fugitive slave law. Why there is not such an Abolitionist in the nation as Douglas, after all.¹²

That devastating culminating line not only exposed the sophistry and moral emptiness of Douglas’s argument; it destroyed Douglas’s candidacy for the presidency. For what the Southerners craved the most in the aftermath of the decision in Dred Scott was a slave code for the territories that would protect the right of slaveowners to their property in slaves even when they left their states and entered the free territories. But that is exactly what Douglas insisted, up and down the land, that he could not give them. That was enough to split the Democratic Party and make Lincoln’s election possible.

As we stand back to savor this conclusion to the debate, the point should not be lost that the decisive lever in Lincoln’s argument was not to be found in either clause in the Constitution. It was not the Fugitive Slave Clause nor the Due Process Clause that did the decisive work here. What was decisive was simply that underlying logic of morals and Aquinas’s first principle of moral reasoning: that one cannot say at the same time that one has a right to do X and that it would be rightful of someone else to obstruct that right. If I have a right, then the necessary implication of that right is that others around me would be obliged at least to respect that right, if not to sustain and facilitate it—certainly they would not be justified in obstructing it. Just a year after this decisive debate, in the political campaign in Ohio, Lincoln reduced the point to one conclusive sentence: that according to Douglas, “a thing may be lawfully driven from a place, at which place it has a lawful right to remain.”¹³

It may be a measure of how forgetful we are as a people that the memory of this moment has fled from the textbooks and the folklore of our people. On the other hand it may simply confirm the point that these axioms are so fundamental, so much a matter of common sense, that we can easily lose our awareness that we are using them. And yet, as we have seen, when Daniel Robinson testified before a Senate committee on the matter of fetal pain, we find that this simple principle kicks in, with surprising and notable effects, in the politics of our own day.

There is no example more striking than that of the way in which that axiom has come into play with an issue that has touched the root of the law and fostered turbulence in our politics: the controversy over same-sex marriage. And it found its clearest application in the case of the master craftsman of cakes, Jack Phillips (Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018). Phillips had run afoul of a statute in Colorado that barred discrimination by private businesses open to transactions with the public. Laws against discrimination on the basis of race have become quite familiar, but the Colorado Anti-Discrimination Act (CADA) had broadened the coverage of those laws to include discrimination based on “sexual orientation.” Phillips readily served gays and lesbians in his establishment, but he held back when asked to make a cake to celebrate the wedding of a gay couple. The laws at that time in Colorado had not recognized same-sex marriage and when the case arose, the Supreme Court had not yet installed same-sex marriage in the laws of all the states in Obergefell v. Hodges in 2015. Still, the authorities saw Phillips’s refusal to accept same-sex marriage as simply another instance of discriminating on the basis of “sexual orientation.” But Phillips had moral reservations about same-sex marriage, anchored in religious convictions. The request for that cake, bearing that meaning, was just a step too far, for it would have signaled his acceptance of the purpose for which the cake was made. With that simple act, Phillips would become complicit in something he regarded as wrongful.

And yet his holding back marked Phillips as a serious wrongdoer under the laws of Colorado. He was faced with serious fines and with the requirement of moving, with his employees, into a regimen of compulsory counseling. The object, plainly, was to purge them of reflexes that were now stamped by the authorities as bigoted. Phillips was not compelled to speak words of acceptance and praise for same-sex marriage. But his act in making the cake could be taken as a clear enough moral endorsement. To draw on Daniel Robinson’s explanation in those hearings years earlier on fetal pain, the act of making the cake would count as a “performative” act by Phillips. Dr. Berkowitz had professed to have no moral judgment for or against abortion, but that declaration of detachment was embarrassed by the fact that he actually performed abortions. To recall Robinson’s words to Berkowitz: “Whether you say you favor abortion or not, if in fact you actively performed these during your professional career, this is a sufficient statement; it is a non-verbal statement.” As Phillips’s creation of a cake to celebrate a same-sex marriage would have been.

In any case, Phillips was sharply alert to the non-verbal statement that the authorities were commanding him to make in this case. And that formed the principal line of the argument in his defense in the courts. His lawyers would argue that this was a species of coerced speech, the kind of coercion that had been barred in the past under the protections of the First Amendment. The lawyers recalled, for example, the unsuccessful attempt to force the St. Patrick’s Day Parade in Boston to accept a contingent from the Irish-American Gay, Lesbian, and Bisexual Group of Boston.¹⁴ They distinguished what Colorado was requiring of Phillips from laws requiring the makers of packaged foods to list products’ ingredients and calories or to post warnings. This was a matter of requiring the affirming of convictions that the speaker regarded as deeply objectionable. For Phillips and his supporters, this was closer to the law that required the children of Jehovah’s Witnesses to speak the Pledge of Allegiance to the American flag and render a salute that was quite at odds with their religious beliefs.¹⁵

But that argument on speech encountered serious reservations, even among the conservatives who were on Phillips’s side. The hazard lay precisely in the claim that certain “non-verbal acts” could be acts of “expression.” Justice Scalia had warned that “virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose—if only expressive of the fact that the actor disagrees with the prohibition.” The act of driving through a red light could be taken as an expression of opposition to the traffic laws restraining the “liberty to travel.”¹⁶ And the right to “expression” was one of those rights that could devour itself. For if acts of “expression” have a trumping quality, a crowd of thugs that breaks up a public demonstration is itself engaged in an act of expression. On this construal, the government would not be able to protect the rights of the original demonstrators under the First Amendment! This was a right of expression so exquisite that it would extinguish itself.

In the oral argument in Phillips’s case at the Supreme Court, Justice Breyer saw the connection right away to the interests at stake in the Civil Rights Acts. He mentioned Ollie’s Barbecue, the restaurant in Birmingham, Alabama, that had tested the Civil Rights Act of 1964.¹⁷ Might it not be argued, he asked, that by forcing the owners of the establishment to treat black customers in the main dining room, the law was forcing the owners to engage in performative acts of expression that ran counter to their own moral convictions? Justice Breyer then wondered aloud whether a decision for Phillips on this ground of coerced speech would work to erode the civil rights laws. On the other hand, if the concern here was not coerced speech but religious conviction, that argument too suffered some embarrassment when put up against the case of Ollie’s Barbecue. For it never occurred to anyone that the Civil Rights Act of 1964 should exempt anyone who professed a religious ground for his refusal to obey the laws that barred discrimination based on race. Or a religious ground for his own views on the rightful and wrongful treatment of black people. The legislators who framed the law in Colorado thought that law to be as deeply rightful as the laws that barred discrimination on the basis of race. And anyone who saw it in that way could not see any more ground for a religious exemption in this case than in the cases on racial discrimination. It is certainly worth reminding ourselves in that vein that even when Loving v. Virginia was decided in 1967—when the Court struck down the laws that barred marriage across racial lines¹⁸—there were earnest ministers, like the Reverend Bob Jones, who found a ground in Scripture for rejecting the mingling of the races in marriage. That reminder may bring us up with a jolt: Would anyone seriously think that the law would give a pass to bakers or florists who professed a religious ground for refusing to engage their arts in support of interracial marriage? And for the advocates of same-sex marriage, the two cases stand on the same plane. Clearly, it cannot be “religious belief” that makes the difference here. The difference between the two cases can turn—can only turn—on the fact that we have come to understand racial discrimination as deeply wrong, but many of us have not been persuaded that there is something truly wrong, in the same way, in the laws that confine marriage to the coupling of one man and one woman. We may not think it retrograde and illegitimate for anyone to harbor those moral reservations about same-sex marriage and the homosexual life. But that is exactly the understanding that pervades our laws now at every level since the Supreme Court established same-sex marriage as a constitutional right, quite apart from any provision made for same-sex marriage in the laws of any state.

As Lincoln put it in the midst of another moral split in the country, speaking of the defenders of slavery, “Their thinking it right, and our thinking it wrong, is the precise fact upon which depends the whole controversy.”¹⁹ Here is the elusive key to the puzzle of the Phillips case: Whether the argument is against coerced speech or on behalf of religious freedom, the argument in either case cannot be resolved without confronting the issue that stands at the core of the disagreement: the moral rightness of same-sex marriage.

And so in the oral argument, Chief Justice Roberts led the challenge to the law by posing this question: “Catholic Legal Services… provide pro bono legal representation to people who are too poor to [afford] it and they provide it to people of all different faiths.” But if they were asked to represent the gay couple in this case, would they not be free to refuse precisely because they could not take up a cause in serious conflict with Catholic moral teaching? And if they held back, asked Roberts, would they not be in violation of this law in Colorado?

From another angle, Justice Gorsuch posed the hypothetical of a baker who offered a cake topped with a red cross. One customer buys it as a kind of celebration of the Red Cross. Another customer seeks to buy it and deck it out as a celebration of the Ku Klux Klan. Would the baker not indeed be well within his rights to refuse?²⁰ In a comparable hypothetical, Justice Alito offered the example of a customer who wanted to mark his wedding anniversary with a cake saying “November 9, the best day in history.” But then another customer asks for precisely the same wording on a cake, but this time for the purpose of celebrating Kristallnacht, the attacks on Jews in Germany on that same day in 1938.²¹ May the baker not refuse even though it is the same product, with the same inscription, but marked now for a purpose so strikingly different?

Once again, though, the matter hinges on the fact that we think that people are quite warranted in opposing the KKK or the Nazis. But we don’t think that the people who would preserve marriage as we’ve known should be put on the same plane with the KKK and the Nazis. The people who brought forth the law in Colorado would not quite say that, and yet that doesn’t shake their conviction on the depth of the wrong here. For they truly cannot see any plausible ground on which one may find fault with same-sex marriage or cast an adverse moral judgment on the homosexual life.

“If slavery is right,” said Lincoln in his famous speech at the Cooper Union, “all words, acts, laws, and constitutions against it, are themselves wrong, and should be silenced, and swept away.”²² In this passage he was moving again along the same path of reasoning that Aquinas had marked off long before him. And it was nothing other than the logic of that “first principle of practical reason”: If slavery were right, as Lincoln said, then he could accede to the demands of the slaveholders to censor the federal mails, to screen out the incendiary broadsides of the abolitionists. There could be no holding back; nothing less would satisfy them: “This, and this only [will appease the partisans of slavery]: cease to call slavery wrong, and join them in calling it right. And this must be done thoroughly—done in acts as well as in words. Silence will not be tolerated—we must place ourselves avowedly with them.”²³

The opponents of slavery had to be made to confess the rightness of slavery and their own wrongness in opposing it. And precisely the same thing is happening now on the issue of same-sex marriage. Some of my libertarian friends have been strongly in favor of same-sex marriage, but they recoil from what they see as unnecessary and humiliating coercion. They point out that there are many other bakers and florists to serve same-sex weddings. But the libertarians, ever quick to deride the flaring up of “moral” issues, cannot seem to get hold of the hard fact that the proponents of same-sex marriage take their position as a profoundly serious moral matter. And so we find that even some quite accomplished professors have been taken by surprise, as though they had never seen or grasped that elementary first principle set forth by Aquinas. They somehow fail to notice that the advocates of same-sex marriage are seized with deep conviction of its moral rightness—and therefore of the moral wrongness of those who oppose it. For them, it does not matter at all that there are other bakers available who would readily fashion those cakes. Jack Phillips, in making an issue of denying the rightness of same-sex marriage, was a wrongdoer. And as a wrongdoer he had to be publicly reproached and punished by the law.

We would have to run back to Aristotle and Plato, of course, to find anything as venerable in moral philosophy as Aquinas’s first principle of practical reason. And what do we make of the fact that it still comes as a surprise to so many people with advanced degrees, when it suddenly breaks into our politics to reveal that one side or another is suffering from incoherence? It may be, again, something so obvious and fundamental that we no longer notice it—until one day, when someone recovers to see it, it comes crashing into our lives once again.