Constitutional Law
Part 2: “What Were They Thinking?”
Digression: “A History of Government in 6 Revolutions: From the Paleolithic to Philadelphia”
124. Inventing God and Law: A Funny Thing About Faith
TITLE: Part R: A Funny Thing about Faith
Panel 1: An elderly woman in middle-eastern garb, with a hooded robe and a jeweled and embroidered headband, taps one finger to the side of her head while looking knowingly at the reader. Behind her, an elderly man with a long pale beard, brown robes, and a dun cloth-covered headdress, squints at the reader.
NARRATION:
Here’s a funny thing about faith:
WOMAN:
If your belief can be challenged, it can be changed.
MAN:
Can’t be having with that.
-=-
Panel 2: A giant stone tablet has been chiseled with the words, and the letters have been gilt. Below the tablet, a person addresses the reader.
NARRATION:
When your world is rooted in a belief that can be challenged, there’s one cardinal commandment:
ENGRAVING:
THOU SHALT NOT DISSENT
PERSON:
If you thought monolatry was intolerant, you ain’t seen nothing yet.
-=-
Panel 3: A narration box, with a person below it addressing the reader.
NARRATION:
Disagreement wasn’t a harmless difference of opinion—it felt like a very real attack.
Dangerous acts like murder might be utterly reprehensible, but dangerous ideas were the most anti-social, the most evil thing imaginable.
These cultural transformations had given the world thought crime—or, if you prefer, the phenomenon of intolerant ORTHODOXY.
PERSON:
You say that like it’s a bad thing.
-=-
Panel 4: Outside the city walls of Jerusalem, three men are stoning a woman to death. The woman is on her knees, her hair soaked and dripping with blood, her hands pleading as she addresses the reader. Behind her, one man raises a giant stone to crush her, another is in the act of throwing a smaller stone, and a third holds a stone to throw at her.
NARRATION:
Fighting ideas with violence felt heroic! By defending the orthodoxy, you defended your team, your community, and your self.
WOMAN:
HeROic?
Forgive me if I disagree.
MAN:
Destroy this heretic!
And her incorrect, unapproved beliefs!
NARRATION:
Thus began a long sad history of ideological, faith-based violence…
-=-
Panel 5: An overhead view of people, tiny as dots. As some scatter this way and that, a large number form a ring around a single person.
NARRATION:
Religious…
VARIOUS VOICES:
We must fight the infidels!
Not now.
We’ve got to stone this apostate to death!
He abandoned our faith! The worst sin there is!
Traitor!
Viper in our own bed!
Stoning lets us all participate in justice.
And it reinforces our sense that the rules are right.
Plus it’s cheap—rocks are everywhere!
-=-
Panel 6: A large number of voices cover the scene with a blur of grayish greens and browns.
NARRATION:
…and secular.
VARIOUS VOICES:
Anybody spreads news or photos we censored, they “disappear.”
Make ‘em afraid to speak up!
To the gulag with those dissenters!
Purge the educated! They might think for themselves!
Line ‘em up against the wall!
Tar and feather that abolitionist!
We support free speech, but not that speech!
Get the rope!
Burn ‘em at the stake!
Get him!
Death to the opposition!
Fuck “civilized discussion.” They’re advocating for evil!
They’re erasing our heritage!
You see one, you punch him!
Get her!
These bombs will change their minds!
Their views are violence! Fight back!
Bring me that journalist’s head.
Their words are an assault! We must defend ourselves!
Thou shalt not dissent!
NARRATION:
Fortunately, faith has an even stronger upside…
Glad you noted that “faith” based doesn’t just refer to religious faith.
We’re in the middle of some of that right now. At least, I HOPE it’s the middle, and not us barely cresting the foothill that is in front of the mountain.
Life is like walking backward. You can see where you’ve been, but not where you’re going.
And we’re not all that good about keeping an eye on where we’ve been, either. We’re constantly recontextualizing. Re: https://lawcomic.net/guide/?p=3163 (I was looking for a different, clearer, example, but didn’t find it before I gave up.)
So, what I hear you saying is this: All the problems that have happened throughout history regarding the violent persecution of people who do not conform to the religious values of the state is something we can blame the Jews for?
Sounds good to me. Excuse me a moment while I go fetch some gasoline and a box of matches. I need to go make me a visit to the local synagogue. #irony
There’s a difference between being first and being to blame, you know. As a rule, people are only to blame for their own actions. Remember the discussions back around here?
EDIT: A better reference might have been the discussion here. Otherwise we’de be blaming the Wright brothers for 9/11.
Just like a lawyer to take a joke and provide his legal analysis of it.
Here…let’s try another one. And I’m giving you a heads-up this time so you feel like you have permission to laugh.
“Fighting ideas with violence felt heroic. By defending the orthodoxy, you defended your team, your community and your self. Thus began a long sad history of ideological, faith-based violence.”
Hey, but what about that “love thy neighbor” guy who’s coming soon? With that “turn the other cheek” message I hear he was spreading, that should put a quick end to these atrocities, am I right?
Okay, I chuckled. But though I know full well I’m going to be a wet blanket, I can’t pass up the opportunity for a pertinent clarification:
The usual Christian teaching about turning the other cheek has never been that all violence is wrong. You’re perfectly entitled to defend yourself and others against assault in self-defense. It would be stupid, beyond absurd, to teach that people should just let others hurt or kill them.
According to even the earliest Christians, the point Jesus was making is that you’re not supposed to act on emotional desires for vengeance after the fact. Retaliatory violence doesn’t solve anything—the original assault was wrong, but it’s over, and all you’re doing now is hurting society again with more violence.
The same goes for societal violence. It’s perfectly fine if it is protecting the community, the equivalent of self-defense, but it’s wrong if it’s the equivalent of an assault. So when the safety of the community requires the execution of a dangerous criminal, for example, there’s nothing wrong with capital punishment. (This is a point that people often fail to realize when they argue that Christians are hypocritical when they oppose abortion while supporting capital punishment, but we’ll get into all that in MUCH more detail in the section on abortion rights.)
You find that at the founding of Christianity itself. In Paul’s epistle to the Romans, written just a couple of decades after Jesus died, he literally says that God gave governments a sword for a reason, and they are supposed to be God’s agents in using violence to protect the place.
That thinking is also what’s behind the concept of a “just war,” first propounded by St. Augustine around 400 AD, that of course war is proper when it’s in self-defense. But only in self-defense. War violates God’s will when it’s fought to conquer, to destroy, or to exact vengeance, or to punish another country. (Note that those were considered perfectly valid justifications for war in societies without a Christian theological basis. And you could certainly argue that officially Christian governments never seem to have had any difficulty justifying wars of conquest or retaliation. And obviously we conduct warfare in the present age to punish treaty violations just like the pagan Romans did. I’m the last one to argue that the Christian “just war” doctrine has ever stopped anyone from conducting an “unjust” war. I’m just pointing out that it’s perfectly consistent with its “turn the other cheek” teaching.)
Yup. You were only trying to be pleasant and fun, and I just had to go “ackthually” and kill the mood. Twice. Maybe this will make it better:
Nope. That made it worse. God would NOT have approved.
What’s this? Moral Orel? Hmm… never heard of it.
[11 Minutes later]
What in the name of Iota Eta Sigma is this, and why has it not been a part of my cultural vernacular all these years? Gotta watch some more…
[6 hours later]
What the hell just happened to my Saturday?
lol
You’re saying modern progressives are the moral equivalent of the KKK and the Khmer Rouge. Could you be more tone deaf.
Wow! A troll! Not sure if I’ve ever seen one on these forms below. What fun!
And shame on me, I just can’t help myself feeding the trolls. But alas, it’s always been a weakness of mine.
I find that your statement is misleading, presuming an unspoken premise that “modern progressives” are the only ones committing violent acts in the name of some form of idealism. I think any objective observer can conclude that no one political group holds a monopoly on violent extremism. Furthermore, while Nathan uses the majority of this page to state historical facts regarding the development of orthodoxy, he concludes with a moral opinion that it led to a “long, sad history” of violence. I think that judgement applies equally to the KKK, the Khmer Rouge, the Black Panthers, or the Proud Boys.
Or, for that matter, antifa activists. I’m willing to say that violent progressives are morally equivalent to the Proud Boys, except in that they’re usually less violent (there’s a difference between punching someone and shooting someone)…and of course, they’re attacking people we disagree with, so it’s okay. (I was being sarcastic there, but I’m pretty sure that there are some people here who would agree with that statement unironically.) But otherwise, they’re doing exactly the same thing: silencing their ideological opponents with violence.
I think we’ve resolved the Paradox of Tolerance: if your ideology is that certain people shouldn’t be able to speak or be represented or be allowed to LIVE, you’re breaking the social contract of tolerance, and thus you aren’t protected by that contract.
Fascists looking to create a state where only THEY get full rights aren’t welcome.
I know the phrase thoughtcrime is powerful, but the problem isn’t thinking it. It’s advocating for it.
I personally agree with speech act theory, that certain statements count as actions. You can through speech approve a marriage, or decide guilt. And yes, I think certain speech acts can themselves constitute harm.
It’s not harmful because “I disagree with it.” It’s harmful because it works to cleave people away from the rest of society by framing them as someone who doesn’t deserve equal treatment.
And if an act that is harmful can warrant after-the-fact trial and punishment, sometimes an act poses and imminent harm can warrant intervening with force to stop that harm, then yeah, it can be ethical to punch Nazis if they are speaking in an effort to exclude people from having full rights.
Tolerance is a social contract, not a suicide pact.
You make several thoughtful and astute observations here, thank you!
I’m not sure I follow that last step in your reasoning, though. It seems there are some principles acting as axioms, which have been left unsaid. I’m willing to bet that other thoughtful people believe in a contrary set of unspoken axiomatic principles. Those kinds of differences are a huge part of Constitutional Law, and they are so much fun to dive into. Are they irreconcilable? Are they consistent? Where do they come from? Are there even deeper underlying principles which explain apparently conflicting positions? But I’ll hold off on my own approach to speech as a harmful act until the upcoming chapter on the First Amendment—there’s way too much to cram into a comment.
I would just add that the law only functions at all because words “do” things. Writs, judgments, contracts, adoption papers, Miranda warnings, spending bills, licenses, wills… you name it!
It’s not just law, but modern society itself relies on all sorts of examples of performative utterances—words which, simply because they have been uttered, change our reality. Personal checks, diplomas, liturgies, signing off on things, the name on a child’s birth certificate… The list is endless.
Words can’t directly change the physical world, because they only exist in patterns of chemical signals inside human skulls. But they can directly change a narrative—something which also exists solely as a pattern of neural signals. And almost every facet of civilization is a narrative. Kinship, marriage, laws, and rights are “just” narratives. So are history, ideas, science, mathematics… governments, religions, corporations, towns, titles… money, credit, investments… treaties, armies, wars… nations, empires, tribes, the U.N.… and all the vast web of ranks and relationships and rights and responsibilities among the billions of people on the planet that constitute all forms of human society. It’s all just narratives. It’s all just stuff we imagined and put into words, and now we act as if the words are real. It’s extremely useful to act as if the words are real! But they are words. And words can change them. In other, uh, words, though words can’t change the physical world, they absolutely can change our social reality. All you have to do is say the magic words. Word!
Oh yeah, words can even form or constitute a whole new country and its government and the fundamental rules of its society, like magic, out of thin air. That’s called a constitution.
“…then yeah, it can be ethical to punch Nazis if they are speaking in an effort to exclude people from having full rights.”
But that devolves to “We can punch Nazis because they don’t agree with us, and everyone who doesn’t agree with us on any point is a Nazi.”
You’re making a slippery slope argument, but that’s a presumption.
It’s not because they don’t agree with us on any old random thing. It’s because they are attempting to destroy the foundational idea of a pluralist liberal society. Everything else is permitted.
Again, tolerance is a social contract. You shouldn’t get to say, “I, the Nazi, get to be intolerant of you but you don’t get to be intolerant of me.” If you’re trying to dismantle the contract, you won’t get full benefits.
One problem with that, of course, is “who decides when you lose your rights?” Since the current wave of activists have decided (without asking for democratic consensus in any way, or anyone else’s agreement – those who disagree are to be punched into submission) that the First Amendment has no moral force, that the law is wrong and they should go ahead and punch Nazis for exercising their legal rights. Which, to my view, is rejecting the rule of law.
Also, they tend to support legal action against Kyle Rittenhouse, despite the fact that his victims were attacking him in violation of the law. Kind of feels hypocritical to me (especially if you use the contract approach to the paradox of tolerance).
Definitely can’t wait for us to revisit this topic when we get to the First Amendment, though. That’s gonna be a lovely comment section.
‘You shouldn’t get to say, “I, the Nazi, get to be intolerant of you but you don’t get to be intolerant of me.”’ I have no problem with that because it proves that I am better than the Nazi, since I will tolerate him while he won’t tolerate me.
Also, anyone who is trying to change the contract can be considered to be dismantling it, so aside from opinion on who’s right or wrong, is there a difference between those who want to change the contract to lessen the rights of people of color and those who want to change the contract to lessen the rights of bigots?
As long as they are advocating for a change and not using extra-legal means to gain the change, that should be within their rights. When they start beating and burning, then they must be stopped.
> is there a difference between those who want to change the contract to lessen the rights of people of color and those who want to change the contract to lessen the rights of bigots?
Legally? I’m not an expert.
Ethically? Yeah, there’s obviously a difference.
You compare the outcome of what happens if the two groups get their way, and you gauge how much harm occurs. If the Nazi ideology gets momentum, a lot of people die, because that’s their goal. If a minority group gets equal rights, net harm is reduced.
Let’s not be naive and act like we don’t understand the final goals of Nazis even if they’re not saying them publicly, or that we don’t know what happens when Nazis get free reign. There *ought* to be laws that articulate exceptions for free speech related to advocating for Nazism.
I think there’s plenty of support for the idea that sometimes law fails to represent what’s ethical, which is why juries can find people not guilty through jury nullification. It’s not ideal for the law to be out of alignment with ethics, but there is a relief valve. Well, kicking the ass of people who would kill a bunch of innocents if they had the chance is also a relief valve.
Recall, all rights extend only so far as they don’t take away the rights of others. That includes the right to free speech. When there’s a collision of rights, we need to resolve them in a way that maximizes freedom.
But that’s a long way off from the bronze age, I’m sure.
Rittenhouse feels like a very different topic from free speech. People were attacking him because they knew he’d shot someone and they thought he was an active shooter, and they were trying to defend their community from someone they thought was murdering people. They didn’t know that he’d shot the first guy in self defense.
The violence there was not to quash speech, but rather an unfortunate result of people acting with insufficient knowledge in a crisis (which I take as a good reason that society ought to act to prevent discontent turning to crisis, instead of letting the little people languish).