Lex Anteinternet: Looking for Constantinople and Rome.

Lex Anteinternet: Looking for Constantinople and Rome.: 

Looking for Constantinople and Rome.

Catholic, Orthodox theologians agree on first new text since 2016

This is huge.

It's a long document, we'll just skip to the conclusion.

Conclusion

5.1 Major issues complicate an authentic understanding of synodality and primacy in the Church. The Church is not properly understood as a pyramid, with a primate governing from the top, but neither is it properly understood as a federation of self-sufficient Churches. Our historical study of synodality and primacy in the second millennium has shown the inadequacy of both of these views. Similarly, it is clear that for Roman Catholics synodality is not merely consultative, and for Orthodox primacy is not merely honorific. In 1979, Pope John Paul II and Ecumenical Patriarch Dimitrios said: ‘The dialogue of charity … has opened up the way to better understanding of our respective theological positions and thereby to new approaches to theological work, and to a new attitude with regard to the common past of our Churches. This purification of the collective memory of our Churches is an important outcome of the dialogue of charity and an indispensable condition for future progress’ (Joint Declaration, 30 November 1979). Roman Catholics and Orthodox need to continue along that path so as to embrace an authentic understanding of synodality and primacy in light of the ‘theological principles, canonical provisions and liturgical practices’ (Chieti, 21) of the undivided Church of the first millennium.

5.2 The Second Vatican Council opened new perspectives by fundamentally interpreting the mystery of the Church as one of communion. Today, there is an increasing effort to promote synodality at all levels in the Roman Catholic Church. There is also a willingness to distinguish what might be termed the patriarchal ministry of the pope within the Western or Latin Church from his primatial service with regard to the communion of all the Churches, offering new opportunities for the future. In the Orthodox Church, synodality and primacy are practised at the panorthodox level, according to the canonical tradition, by the holding of holy and great councils.

5.3 Synodality and primacy need to be seen as ‘interrelated, complementary and inseparable realities’ (Chieti, 5) from a theological point of view (Chieti, 4, 17). Purely historical discussions are not enough. The Church is deeply rooted in the mystery of the Holy Trinity, and a eucharistic ecclesiology of communion is the key to articulating a sound theology of synodality and primacy.

5.4 The interdependence of synodality and primacy is a fundamental principle in the life of the Church. It is intrinsically related to the service of the unity of the Church at the local, regional and universal levels. However, principles must be applied in specific historical settings, and the first millennium offers valuable guidance for the application of the principle just mentioned (Chieti, 21). What is required in new circumstances is a new and proper application of the same governing principle.

5.5 Our Lord prayed that his disciples ‘may all be one’ (Jn 17:21). The principle of synodality-primacy in the service of unity should be invoked to meet the needs and requirements of the Church in our time. Orthodox and Roman Catholics are committed to finding ways to overcome the alienation and separation that occurred during the second millennium.

5.6 Having reflected together on the history of the second millennium, we acknowledge that a common reading of the sources can inspire the practice of synodality and primacy in the future. Observing the mandate of our Lord to love one another as he has loved us (Jn 13:34), it is our Christian duty to strive for unity in faith and life.

This doesn't resolve the schism, but it's really edging up on it.  The Pillar notes that in the head of the Greek Orthodox Church had his way, the schism would likely end immediately.

We're getting pretty close.

The final break, more or less, between the Catholic and Easter Orthodox Churches can somewhat be dated to 1453, making it only a few decades older than the start of the Reformation in 1517.  We've written in regard to the collapse of the Reformation here recently, and here's an example of how that's playing out.

Conservative Anglicans Call for Break With Archbishop of Canterbury Over Same-Sex Blessings

African bishops have emerged as leaders of the church’s conservative wing

African bishops are indeed the leaders of the conservative branch of the Anglican Communion, with the Anglican Communion's conservatives being very close in their outlook to Latin Rite Catholicism.  Indeed, the theological point they assert is that they are a separated church, like the Orthodox, a position that Rome does not agree with.

Anyhow, it's interesting to note that as the Reformation more and more collapses due to the seeds of individuality it inserted into Western Culture in the first place, the more conservative branches pull more and more towards Catholic orthodoxy, something liberal Catholics may wish to take note of as they sometimes try to tack in the opposite direction.

Lex Anteinternet: The End of the Reformation II

Lex Anteinternet: The End of the Reformation II:

The End of the Reformation II

I started this thread some time ago, put it aside, and then oddly a few weeks later, heard a Parish Priest make the observation during a homily.

Synchronicity at work?

I've since linked the theme in to another post, which then ends up being published, as it were, prior to what should have been the original entry, that entry being here:

The End of the Reformation I. Christian Nationalism becomes a local debate. . .

So we return to finish our original thoughts.

St. Augustine of Hippo, in The City of God, describes the fact and the era of the collapse of the Roman Empire.

Rome, it is often noted, wasn't built in a day, and it didn't collapse in one either.  People living through the horrible experience knew things weren't going well, but they wouldn't have necessarily thought that "well, it's 450 and Rome is over".  They wouldn't have thought that in 500, or 600 for that matter.

And they might not have really noticed that a lot of old things were passing away.  Christianity was only in its third century when Augustine was born in 354 and still twenty years away from Rome's disastrous 450 when he died in 430.  All sorts of heresies and competing religions flourished in the era.  Indeed, the Council of Nicea had occurred as recently as the summer of 325 and the birth of Mohammed was only a little over a century away at the time of his death.  Looking outward, it would have been hard for Christians of the era to appreciate that many of the early heresies were about to pass away along with the European pagan religions and Christianity explode as the religion of Europe, North African and the Middle East.

Clearing out the thick weeds of the Roman era turned out to be necessary first.

Human beings, having fairly short lifespans, tend to see all developments in terms of their lifespans.  In True Grit the protagonist Maddy Ross states, "a quarter-century is a long time", but in real terms, except for our own selves, it isn't.  Things that occurred only a century ago, and I used only advisedly, didn't really happen all that long ago in terms of eras and changes, although here too we are fooled by the fact that the last century has been one of amazing technological development, which is not the human norm, with this being particularly true of the middle of the 20th Century.

I note this as the entire Western World is in turmoil right now, seemingly without any existential or metaphysical center, which explains a lot of what we're enduring in the world.  How did we get here?

There's a good argument that it's due to the end of the Reformation, or rather, it's collapse.

St. Augustine lived at the beginning of Rome's death throes.  That same era was the birth of the Catholic world, and I say that advisedly.  Some would say the Christian world, but they'd be wrong in the way they mean it.  Christianity, all of it, was Catholicism.  It would be right up until the Reformation.  Even the Great Schism, which was a schism, really only had its final act in 1453, quite close to Luther's famous apocryphal nailing on the Cathedral door in 1517.

The English-speaking world is a product of the Reformation, and while it now seemingly regrets it, the English-speaking world was the major, influencer of the world's history and cultures.  By extension, therefore, the Reformation influenced the entire globe.

That's not praise for the Reformation.  Indeed, I'd have preferred it never have had happened. That's just a fact.

The Christian Era is usually calculated to have commenced at the time of the Crucifixion of Christ, which occurred sometime in the 30s, but it might be more instructive for our purposes to look at the 200s or the 300s, but a person could go earlier. The very first council, a general gathering of Bishops of the Church, occurred in about the year 50, and is reflected in the Book of Acts.  It dealt with some issues that had come up in the very early Church, but for our purposes one of the things worth noting is that it was a Council of Bishops, which means that there were Bishops.  This shouldn't be a surprise, but due to the way the Reformation attacked the history of the Church, it might be to some.  Peter, the first Pope (that title of course wouldn't have been in use) was there.  

The Council of Jerusalem is not regarded as an ecumenical council, as Church historians would note.  The first one of those was the aforementioned Council of Nicea, which occurred in 325.  Some Protestants would date the founding of the Catholic Church to that date completely erroneously, a Reformation era lie, as it's been one that has been particularly attacked by Reformation Protestants at some point. The reasons are fairly obvious, really.  The Council gathered to address heresy, put it down, and it did.  It's noteworthy as a Council for the additional reason that it was the first to occur during the reign of a Christian Roman Emperor, Constantine the Great, who stayed out of it, as is often not appreciated either.

Indeed, going forward, that reflected much of the history of the Church.  If we date the Christian era from, let's say, 100 and go forward to 1517, generally the Church was independent of the state and defined the metaphysical.  

This is significant in that it was universally agreed that there was a metaphysical, or an existential, that was outside human beings, greater than it, independent of it, and which humans had to conform themselves to.  In other words, it was accepted that reality defined humans, and not the other way around.

Luther didn't mean to attack that core principle, but his actions set a revolution against it in motion.  Luther didn't even really mean to separate from the Church at first, but rather to criticize what he saw as abuses.  Things took off, however, mostly as German princes saw this as an opportunity to say that they could define certain things locally, rather than the Church.  After a time, Luther, who didn't find German bishops following him, claimed in essence that the clergy could independently interpret all matters theological, although he himself only attacked a limited number of principals.

Luther was a cleric, of course, and he didn't really start off to, and in fact did not, establish a Church that departed from the Catholic Church in all things.  Indeed, Lutheran services today strongly resemble Catholic ones. But following "reformers" did.  The logic was fairly inescapable.  If Martin Luther, who wasn't a bishop, could tell the bishops what doctrine ought to be, anybody could, or at least any Christian could.  More radical species of revolution, therefore, followed Luther.

In the English speaking world, the Reformation got started with King Henry VIII's desire to secure an annulment, not a divorce, from his wife.  When the Church found the marriage to be valid, he declared that it was he, not the Church, who was the supreme religious figure in England.  That was really a different position than Luther had taken, but Henry opened the door to challenging the Church, which would play out in a particularly odd form in England as various regimes teetered between radical Protestantism and Quasi Catholicism, before settling in on an uneasy truce between the two in the form of the Church of England in England.  In Scotland, which England had heavy influence over, Presbyterianism set in as a form of more radical Protestantism.  In the form of the United Kingdom, coming officially into existence in 1707, the Crown would spread both faiths around the globe, with the unwilling Irish taking Catholicism with them.  In Europe south of the Rhine, of course, Catholicism remained, so French and Spanish colonialism took Catholicism with them as well.

English-speaking colonists were often religious dissenters early on, holding to the more radical form so Protestantism, while later English colonists tended to bring in the "established" church.  In neither instance, however, was it ever the case that there was a rejection of Christianity.  The Enlgisih had, through their leaders, rejected Rome, but they hadn't rejected all variants of the faith.  Be that as it may, the concept of rejection based on independent belief was firmly established, first in 1517, and then in 1534.  The door was open.

When the United States came into being, it did so as a Protestant country.  Canada as well, in spite of a large, but marginalized Catholic population, and so too Australia and New Zealand.  Indeed, anywhere the English went, and they went everywhere, Protestantism went with them.

This is so much the case that American Christians tend to think that Catholics are simply a minority all over the globe and that "Christians", which is how many define themselves, represent the Christian Faith. 

Far from it.

Conservatively, 50.1% of the Christian population of the globe is Catholic.  Another 11.9% of Christians are Orthodox.  Given this, over 60% of Christians are Apostolic Christians who, while not united, generally recognize each other's Holy Orders as valid, and who moreover share the overwhelming majority of their tenants of their Faiths.  I've seen estimates, however, that place 80% of all practicing Christians as Catholics.  Indeed, while Protestant missionaries frequently work to convert Catholics in poor countries, calling into question really their status as real missionaries, the Catholic Church has large numbers of underground Christian members in its ranks all over the globe, and local Protestant conversions in some areas are in reality probably often conversions of convenience and not really all that deep in any form.

Protestants are estimated by Pew at 36.7% of the Earth's Christians, if the Pew figures are otherwise correct.

Maybe that's right, but as noted I've seen other figures that skew the Catholic figure upwards significantly, and the Protestant figure downward.

In the U.S., however, 48.9% of the population is Protestant and 23% are Catholic.  That makes Catholics a large minority, but a minority.  Orthodox are an even tinier minority at .4% of the population.  It's most strongly represented, not surprisingly, in Alaska.  It has been growing, however, due to what we're noting in this threat. As the Protestant faiths collapse in on themselves, some abandoning them go into Orthodoxy.

Indeed, one entire congregation in Gillette did just that.

Luther's biggest accomplishment, one that is acknowledged and celebrated today in some European countries that underwent the Reformation, was to bring about the modern world of individualism.  Reformation Day, for example, is a public holiday in five German states and even Lego put out a Lego variant of Martin Luther in 2017 to celebrate the 500th anniversary of the Reformation.  What's really being celebrated isn't so much his theology, but the concept of radical individuality.

That same individuality, however, has led to the collapse of Protestantism, or at least a massive contraction from what it once was.  This is constantly in the news, but rarely understood.  In the English-speaking world the urban British began to lose their attachment to the Church of England long ago, which after all had a strong connection with the English establishment, not the English underclass, something that was really the opposite of the oppressed Catholic Church.  Put another way, Henry VIII did not destroy the monasteries to benefit the poor, and they didn't.

Elsewhere, British imported Protestantism was strong, with this particularly being the case in North America, with this most particularly the case with the United States which had large numbers of adherents to Protestant faiths that the British Crown had oppressed.  But by the turn of the 19th/20th Century, things were very slowly changing.  The collapse of the Progressive movement, which was strongly tied to Protestantism, accelerated it as more radical reformers on the hard left pitched for social change.  This trend was strongly in place by the 1930s. 

It took the post-war economic boom to really set it in, however, even thought that, like so many other things, was not apparent at the time. Following World War Two, in fact, main line Protestant churches grew, as newly monied middle class Americans went into them.  The last gasp of Catholics converting to main line Protestant churches as they'd economically arrived occurred, something that came to an end with John F. Kennedy arrived.  By that time, however, the Baby Boom children were coming into their own.

Raised in a Protestant culture but coming into massive societal wealth, much of the Boomer ethos amounted to nothing other than being allowed to do what they wanted to without hindrance.   The table was already set for that by the increased wealth of the post-war era and the arrival of the Playboy era starting in 1953.  They took it and ran with it, rejecting anything that got in the way with license.  Protestant churches, which already had the concept of being democratic, responded by getting on board in many instances.  "Liberal" theology spring up and took root in some, followed by the widespread turning of a blind eye to many other things.  

For example, as late as the 1930s the Anglican Communion rejected divorce to the same extent that the Catholic Church does. As the Sexual Revolution came in, it started to turn a blind eye to this, and now it'd be extraordinarily difficult to find any Protestant Church that cares anything about divorce, something clearly prohibited by the New Testament, at all, save for some very conservative Protestant denominations or semi denominations.

This, in fact, provides a good example.  Christ prohibited divorce.  St. Paul condemned not only sex outside of marriage, but listed specific sex acts and behaviors.  The Anglican Communion now has bishops who engage in the very activities that St. Paul condemned.

It can't really be justified, but it's occurred as these institutions are, at the end of the day, democratic. Religion is not.  And those sitting in the pews, in their heart of hearts, know the difference. The leaders, like leaders of democratic institutions, attempt to do the obvious, which is to modify doctrine to satisfy the cravings of the electorate.

Because religion is existential by its nature, it's not working.

This has seen the massive drop-off of membership in some Protestant denominations.  I'ts also seen ruptures in others, as "conservative", by which is really meant those adherent to basic tenants of the Christian faith, split off.  At the same time it's seen the growth of "non-denominational" churches, some of which chose not to challenge the behavior of the congregants and focus instead, broadly, on the theme that everyone is going to Heaven, something that the New Testament doesn't support at all.

Naturally, as part of all of that, people have been just dropping out, with WASPs dropping out most of all. The white upper middle class, which reflects more than anything else the spirit of the 60s and the Boomers, would rather sit comfortably behind imaginary gated walls and not be bothered with having to have restrictions of any kind.  Not all of them, of course, but enough to have impacted and still be impacting the culture.

It shouldn't be imagined that Catholics have been immune from this, in European cultures.  The spirit of the age took hold to a very large extent, but not the same universal degree, in the 1970s, impacted it as well, with the stage being set, in the U.S. in the Kennedy election of 1960.  Kennedy's election heralded the end of open public prejudice, for a time, against the Catholic Church in the U.S. and Kennedy's Catholic on Sunday declaration essentially muted differences in the Faith from Protestant faiths, which were and are very real, to private ones, rather than the open and obvious public ones they had been. The spirit of the age that took hold in the late 1960s led to blisteringly poor catechesis in the 70s, and a generation, or more, of Catholics that didn't understand that there really were massive differences between Apostolic Christianity and Protestantism. The term "Cafeteria Catholic" came in, in no small part as younger Catholics weren't told they weren't in a cafeteria.  Catholics were almost informed that major tenants of the faith, including the need for Confession, and the prohibition against marrying outside the Faith, were merely options in the 70s and 80s.  Clawing the way back from that has been difficult and massive damage has been done.  Moreover, as Western Catholicism suffers from the same Baby Boomer control that so many other things do, the process of recovery has been slow as those who came up during that age have yet to yield control.

At any rate, this is where the spirit of our age comes from.  It turns out that given time, and money, people's thoughts don't go to higher things, but only to themselves.  Even people immediately around them can be a bother.  Ultimately the generation that had calimed to be for "Love" turns out to be for self love in every way describable, including to its own destruction.

Of course, as noted, people know that something is wrong and that's creating massive social disruption. The problem ultimately comes to be that reconstruction is very difficult.  People lead down the road so far, that then realize they're being led to where they don't want to go, will often just sit down and demand that the new world be built right there.  I.e., divorce was okay. . . but we'll stop here.  Or, homosexual marriage was okay, and we'll stop there.  The problem is that you really can't stop anywhere you want, as it suffers from the same intellectual deficit that going further on the road that you are on, if it's a false road, does.

Hence, as noted, the inaccurate contemplation of Susan Stubson in the NYT that we wrote about the other day.  Not realizing it, her departure from Apostolic Christianity didn't go deeper, as she believes it did, but took her on the path to where she is right now, and where's she's now uncomfortable.  Some roads get rocky.

At the end of the day, however, what this really is, is the collapse of the Reformation.  It's in its final stages.  Having attacked the existential nature of the Church in favor of clerical liberty, and then that in the name of individual theological liberty, it ultimately has to be for radical individual liberty.  But, as we don't actually exists as planetary mammals of our own description with our own universe, to which the laws of the existential must bend, that can't work.

And it isn't.

Collapses are horrific messes.  

At the time that Augustine wrote City of God, the collapse of the Roman world wasn't close to being worked out.  The long slow developments that gave rise to the Great Schism still hasn't been worked out, and it started prior to the Reformation.  The Reformation was a revolution, and looking back from a distant future, it will have been seen to only now being playing itself out.

Revolutions cause causalities. There have been many, and there will be many more to come.  The entire Western World was impacted, to some degree, by the Reformation, some of it more than others.  Its collapse is being particularly felt in the English-speaking world, and interestingly also in the Lutheran world.  This will get worse before it gets better, but as the Reformation turned out to be anti-natural in the end, or took that turn at some point, it will get better as a new Counter Reformation correct the errors now being inflicted upon us. That too is already starting.

Related Threads:

The End of the Reformation I. Christian Nationalism becomes a local debate. . .

Lex Anteinternet: Something in the wind, part 3 of 3. The rise of the radical populist right. Getting what you wish for.

Lex Anteinternet: Something in the wind, part 3 of 3. The rise of th...: 

Something in the wind, part 3 of 3. The rise of the radical populist right. Getting what you wish for.

Part Three of this series is brought to you by Giogia Meloni and Clarence Thomas.

Meloni and Thomas.¹

Thomas?

Yes, we'll explain down below, sooner or later.

In the first two parts of this three part series, I've looked at the election of Giorgia Meloni and the reasons for her rise. In the last episode, we tried to sum up the source of her popularity, and how that relates to a now, semi-fawning, American far right.  Italy has now gone down this path.  Others, now more than ever, are urging the United States to do the same.

Which bring up the dread Law of Unintended Consequences.

All of us probably heard our mothers, or somebody, give us the warning "Be careful what you wish for, lest it come true!"  Probably, few stop to realize that this warning was delivered by non-other than Aesop as far back as 260BC.  His sage advice has hung around for a good reason.  The danger of getting something more than you asked for, in terms of secondary effects, is always pretty high.  Nobody tends to think much about that, however.

Far right admirers of Meloni, or Orban for that matter, are disgusted with the "woke" drift of American progressivism and goals that it has, some of which have been quite successful, which seem to offer promise to countering that.  These folks, in many instances, are horrified by progressive efforts that seek to remodel every institution of society and even our basic natures, if they can, and they likely really cannot, which doesn't mean that they can't do a lot of damage in the effort.

But others, and indeed most, of the Americans who are on the Trump train are on it only for one or two reasons.  Some are there for economic reasons, upset by the export of American jobs overseas for decades and a rising tide of immigrants.  Others are horrified by the seeming triumph of the woke and the redefinition of marriage.  Probably most have a vague sense that this ain't the way things ought to be.²

And I agree.

This ain't the way things ought to be.

But, I'm a dreaded intellectual Catholic, the very sort of people that the founders of this Great Nation abhorred and dreaded, and which many in the culture still do. 

Some feel that this era has passed, and such distinctions no longer matter, but I wonder, and I'm not the only one.  Ross Douthat, regarding current American Conservatism, has posted the following on his Twitter account within the last few days.

Current American conservatism: a low-church nondenominational Protestant mass movement trying to exert influence via intellectual Catholics strategically placed inside hollowed-out/secularized institutions of high-church denominational Protestantism.

If you dig deeper into this, you'll find that folks like Douthat, and Catholic intellectual circles, are concerned that ultimately they are there to be used, but when the time comes, they'll be dumped.

Now this may be surprising in an era when the real intellectuals on the Supreme Court, for example, are all Catholics.  All of them.  And its no surprise that this is the case.  By their training, both in their Catechism, and in their profession, they have to be, and were probably always inclined in that direction.  It used to be, however, that this was also true of others of different backgrounds, and while saying it is definitely dangerous, as it can be so easily misunderstood, it's still true of observant Jewish individuals, such as the recently departed Justice Ginsberg, which is part of the reason she was so widely, and justifiably, admired.  

It's getting pretty hard, however, to find serious intellects of the same type who are coming out of what's become of mainstream American conservatism.  Yes, they are there, to be sure.  Mitch McConnell is one, no matter what you think of him.  He's a Baptist. John Hickenlooper is a Quaker. Ben Sasse is a Presbyterian who was once a Lutheran.  And I don't mean to suggest a person has to be Catholic, or even religious, to be a heavyweight intellect by any means.

Rather, what I'm suggesting is this.

A lot of those in the Trump populist right are basically adherents to a sort of intellectualism lite, and often participants in the American Civil Religion, which claims Protestant Christianity as its foundation, but which advances it in a very lenient fashion, omitting, in its current form, darned near all of the New Testament list of behaviors between male and female, and indeed between male and male, and female and female, of a certain category, that were listed as sinful.³

So again, if we're turning the clock back, as Chesterton says we can, who will be comfortable with that and who won't?

Let's get back to voting and what you get, in the end.

In the German elections of the early 1930s, some people really did want to elect a radical racist party into power that would kill the Jews and hopefully, in their line of thinking, punish the French and wipe out the Bosheveks whereever they could be found.

But most voters who went to the polls probably didn't really have sending their sons to freeze to death at Stalingrad or being asked to put a bullet into a rabbi's head, or crush the skull of a Jewish infant in with a rifle butt, in mind at the time.

Observant German Lutherans, over half the county's religious community, didn't imagine that they'd have to fight off an attempt to consolidate them into a state approved variant of their faith.  German Catholics didn't imagine they'd be hiding impaired children from thinly disguised euthanasia programs.

Italians, in the 1920s, didn't imagine, for that matter, that some twenty years later they'd be sending their sons to fight one of the best armies in the world in North Africa, and others to fight the Red Army in the East.

Benito Mussolini.  He was the authority.  All you would have to do to verify this would have been to ask him. . .

Oh, I know, some will read this (among the few who do) and dismiss it as wild hyperbole.  And, for that matter, I'm not saying that anyone is going to be freezing in a few years on the Volga.

What I am saying is that a lot of right wing populist truly talk the talk, but don't really walk the walk, and probably don't want to either.

I'm also saying it's hard, when you go shopping for really radical political movements, to buy just part of the pie.  I.e, it's hard to say "I'll have a think slice of immigration reform please" and not get "here's your populist pie, including a complete set of family values you aren't following. . . "

Which takes us back to Clarence Thomas and more particularly his dissent in Dobbs.

Now, the Dobbs decision is 213 pages long in the original reporter, and we can't expect everyone to have read it.  I haven't read it all, either. But Dobbs, we know, got the abortion topic right.  Roe v. Wade, as most constitutional scholars long ago admitted, just made stuff up that wasn't in the Constitution, and it had long prior become completely unworkable.  Dobbs just sent things back to the states, where they belonged in the first place.

The Dobbs majority was quick to point out, in the text, that it was in no way shape or form seeking to expand the holding in Dobbs beyond the opinion itself, and it in particular it was no threat to Obergefell.

Well, baloney.

That's the same thing Justice Kennedy said in Obergefell. At the time that decision was handed down, the Court indicated it wouldn't expand into anything else, and those advancing the cause that prevailed in Obergefell likewise promised they had nothing else on the agenda.  Obergefell was, as noted, in our opinion on it at the time, a judicial coup, one preceding the attempted January 6, 2021, coup, and one basically fed into the other.

Kennedy was wrong in his declaration, and those 

I write separately to emphasize a second, more fundamental reason why there is no abortion guarantee lurking in the Due Process Clause. Considerable historical evidence indicates that “due process of law” merely required executive and judicial actors to comply with legislative enactments and the common law when depriving a person of life, liberty, or property. See, e.g., Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment). Other sources, by contrast, suggest that “due process of law” prohibited legislatures “from authorizing the deprivation of a person’s life, liberty, or property without providing him the customary procedures to which freemen were entitled by the old law of England.” United States v. Vaello Madero, 596 U. S. ___, ____ (2022) (THOMAS, J., concurring) (slip op., at 3) (internal quotation marks omitted). Either way, the Due Process Clause at most guarantees process. It does not, as the Court’s substantive due process cases suppose, “forbi[d] the government to infringe certain ‘fundamental’ liberty interests at all, no matter what process is provided.” Reno v. Flores, 507 U. S. 292, 302 (1993); see also, e.g., Collins v. Harker Heights, 503 U. S. 115, 125 (1992).

As I have previously explained, “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.” Johnson, 576 U. S., at 607–608 (opinion of THOMAS, J.); see also, e.g., Vaello Madero, 596 U. S., at ___ (THOMAS, J., concurring) (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”). “The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment). The resolution of this case is thus straightforward. Because the Due Process Clause does not secure any substantive rights, it does not secure a right to abortion. 

The Court today declines to disturb substantive due process jurisprudence generally or the doctrine’s application in other, specific contexts. Cases like Griswold v. Connecticut, 381 U. S. 479 (1965) (right of married persons to obtain contraceptives)*; Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in private, consensual sexual acts); and Obergefell v. Hodges, 576 U. S. 644 (2015) (right to same-sex marriage), are not at issue. The Court’s abortion cases are unique, see ante, at 31–32, 66, 71–72, and no party has asked us to decide “whether our entire Fourteenth Amendment jurisprudence must be preserved or revised,” McDonald, 561 U. S., at 813 (opinion of THOMAS, J.). Thus, I agree that “[n]othing in [the Court’s] opinion should be understood to cast doubt on precedents that do not concern abortion.” Ante, at 66.

For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment. Amdt.  14, §1; see McDonald, 561 U. S., at 806 (opinion of THOMAS, J.). To answer that question, we would need to decide important antecedent questions, including whether the Privileges or Immunities Clause protects any rights that are not enumerated in the Constitution and, if so, how to identify those rights. See id., at 854. That said, even if the Clause does protect unenumerated rights, the Court conclusively demonstrates that abortion is not one of them under any plausible interpretive approach. See ante, at 15, n. 22. 

You get the point.⁴ 

So here's the deal.  Thomas would strike down an entire series of substantive due process cases.  And indeed, his logic on this is infallible.  He's correct.⁵

And that's why I wonder, quite frankly, if rank and file populists have thought this out.

Once you board the logic train, you have to go where it goes.  It's like going on a transcontinental railroad trip. 

Once you board the logic train, you have to go where it takes you and you can't get off early.  It's like going on a transcontinental railroad trip.  You buy your ticket, and you can't pretend the train doesn't run all the way across the country and just stops, and turns around, in Denver.  You'll go through Denver. . . but the train will keep going.

The string of cases that Thomas mentions are in fact in peril now, and they likely also ought to be.  But Thomas didn't mention Loving v. Virginia.  Now, I think Loving v. Virginia can still be defended, and it undoubtedly can be on Natural Law grounds.

Loving v. Virginia was, you will recall, the case that determined that states couldn't ban interracial marriages.

Now most people, and certainly any decent people, would find that concept horrific.  Of course states can't ban interracial marriages. But they did, in some instances, up until that time.  It was Loving v. Virginia that struck that down.  Not too many people want to go back to that.

As critics of Dobbs have mentioned, as the state's can and have litigated in all of the areas that Thomas mentions, it's odd, sort of, that he omitted this one.  Well maybe not.  There's another way to address this case too, but it's still worth noting that this is the one area that would personally impact Thomas in a very direct way, and which is contrary to his personal worldview.

At the Wyoming State Bar convention, this came up during a speech by a constitutional scholar who also publishes in the Tribune. At some point during the speech, I don't know where, Harriet Hageman left the room, and she was apparently pretty disgruntled with what the speaker was saying, although I don't know that it was this. An email that circulated among Wyoming State Bar members later claimed that Hageman "heckled" the speaker, and the speaker perceived it that way, although many people disagreed with that characterization.  If nothing else, this all goes to show how uncomfortable people on the far populist right are with where this all leads.

The backdoor out of this is, as noted, Natural Law, but most populist really don't want to go there either.  

Natural Law has come up in American law repeatedly over the centuries, although now it is official eschewed. At one time it was not.  We've dealt with both of those themes here before, with the most interesting example of it being the case The Antelope, which we've written about at least twice.  That was the case in which the United States Supreme Court decided that slavery was contrary to the natural law, but allowable under the law of the United States as countries could legislate contrary to the natural law, to wit:

That it is contrary to the law of nature will scarcely be denied. That every man has a natural right to the fruits of his own labor is generally admitted, and that no other person can rightfully deprive him of those fruits and appropriate them against his will seems to be the necessary result of this admission. But from the earliest times, war has existed, and war confers rights in which all have acquiesced. Among the most enlightened nations of antiquity, one of these was that the victor might enslave the vanquished. This, which was the usage of all, could not be pronounced repugnant to the law of nations, which is certainly to be tried by the test of general usage. That which has received the assent of all must be the law of all. 

Slavery, then, has its origin in force; but as the world has agreed that it is a legitimate result of force, the state of things which is thus produced by general consent cannot be pronounced unlawful. 

Throughout Christendom, this harsh rule has been exploded, and war is no longer considered as giving a right to enslave captives. But this triumph of humanity has not been universal. The parties to the modern law of nations do not propagate their principles by force, and Africa has not yet adopted them. Throughout the whole extent of that immense continent, so far as we know its history, it is still the law of nations that prisoners are slaves. Can those who have themselves renounced this law be permitted to participate in its effects by purchasing the beings who are its victims? 

Now, if somebody is wondering how this gets us out of this mess, it doesn't.  Under the holding in The Antelope, outlawing anything not mentioned in the Constitution, no matter how shocking, would be okay.

But following this, on more than one occasion, the Court referenced Natural Law in order to support a decision. At least as recently as the 1980s, the Court found that laws addressing homosexual conduction were allowable, as homosexuality was contrary to the Natural Law.  A Wyoming jurist found that laws banning adoption by homosexual couples were allowable for the same reason, and more recently than that.

Now, some are going to find that really shocking as well, but once again, if we're on the populist train, this is where that goes, and frankly most of those on the hard populist right, are okay with this.  I.e., that would cure the Loving v. Virginia problem, as banning marriage between heterosexual couples based on race is contrary to the Natural Law.

But the ancient law of humanity also tried to make sure that the same impulses that gave rise to marriage assured them.  Hence, the creation of the Common Law's common law marriage.  How many on the Trump train want to return to the days of the Heart Balm Statutes?

My guess is not many, and certainly not Trump himself, who is a serial polygamist.  

Now, I'm not here to judge people's morals by any means.  But this is a topic worth considering.  In the current political world we live in, we have a Senator who is divorced and remarried and at least one extremely right wing politician entering the legislature has a wife who was married before as well.  You can be guaranteed that some of those now running have openly lived lives involving cohabitation outside of marriage, as it is so common.  Are people really comfortable with a return to the old law on all of this?

Well, sincere Catholics, like me, might be. But this is a Protestant nation.  Here in town, there's a huge Protestant church that I think is "non-denominational" (I'm not completely certain).  Somebody I know who attends it is on their third marriage.  In the American Civil Religion, that seemingly doesn't cause problems, and I don't doubt that person's sincerity in attending.  But in American law, prior to the post World War Two Supreme Court trip that Justice Thomas complained, of, it would have.

Do people have this in mind?

Looking around, I really doubt it.  People seem to believe that the Constitution applies only to other people, not to themselves, or worse yet, they have a false belief about what the history of our laws and the Constitutional law really is.  In reality, at one time marriage was solely the province of the states, and they could allow or ban whatever they chose.  Restricting firearm carrying was pretty common, and the concept of "open carry" around town nonexistent.  Prohibiting members of certain races from certain neighborhoods through restrictive covenants completely allowable and in fact the norm.  The only way around that is the Natural Law, but the Natural Law brings in concerns that most Americans aren't really prepared to deal with, even remotely.

And if you are dabbling with concepts of Natural Law, you sooner or later are going to stray into concepts of Subsidiarity and the like.  Those concepts make most Americans squirm in their seats, at least if they aren't of the left.  Vest the economy entirely downwards, accept a lower standard of living for the middle class and the wealthy in favor of vesting the economy in families and elevating the poor.  Nobody too rich, and nobody too wealthy.  An economy that favors sustainability forever over one that does not.

Chesterton would have been comfortable with all of that.

Jefferson might have been.

Giorgia Meloni is probably comfortable with all of that.

Most Americans now. . . definately not.

Footnotes:

1.  Okay, Meloni's photo here, taken from a Reel, is unfair.  She's an effective speaker and clearly highly intelligent, as is Thomas.  This illustrates, however, how Italian politics isn't American politics, gushing from Ted Cruz and Marjorie Taylor Greene aside.  Meloni is an intellectual, if perhaps a somewhat scary one, compared to Cruz and Greene, and Thomas is definately an intellectual.  Greene and Cruz certainly dont' seem to be, and frankly some or perhaps a lot of their positions wouldn't square with either Meloni's or Thomas'

Added to that, Meloni is a politician in a  unique Italian environment where things are done, said, or portrayed that definately would never be here.

2.  This is the source, I think, of the lot of election discontent.

It's also the source of a lot of election denialism. The thought is that "people can't have really voted for Biden, as people can't really be for. . . ".  In another form, which isn't the same, its "votes for Biden can't count, as what he stands for is vile, and therefore. . . "

Almost lost in all of this is the fact that Trump lost the popular vote twice.  His first election was only legitimate, and it was legitimate, due to the artifact of the electoral college.  Of course, this causes people to unthinkingly babble "we aren't a democracy" (we are) "but a republic".  I've addressed that elsewhere, but using that as an argument shows that the person advancing a point is largley ignorant of what they're trying to advance.

3.  It might be worth noting here that fully 1/3d of American Evangelical Protestants believe the United States Constitution, which never mentions God, was inspired by God.  The newly appointed interim Wyoming Secretary of State has publicly taken this position in his campaign material.

For reasons that are partially addresssed in this essay, that's a fairly startling and scary proposition.  Traditional Christianity holds that inspired texts cease with the end of the Apostolic Age, at which point there were no more general revalations.

4. It should be noted, and will be later in the text, that even if Thomas' logic is correct on the cases he mentions, he's only commenting in regard to procedural due process. For that reason, his comments have been read to probably mean more than they should be.

I'll address Loving v. Virginia below, but Griswald v. Connecticut is another such example.  Even if Thomas' criticism of the case in a procedural due process context are correct, it doesn't address Federal Supremacy might mean that the Federal Government has completlely dominated the field here to the detriment of indivdual states through the laws pertaining to pharmacueticals.

5.  But see footnote 4.

Prior Related Threads:

Something in the wind, part 1 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.

Something in the wind, part 2 of 3. The rise of the radical populist right. A second look at the Italian election. . . and a bunch of other stuff.