by Anthony Esolen (November 2018)
Two Heads, Marc Chagall, 1918
The ghastly farce is over. Mr. Brett Kavanaugh has been confirmed as the latest of our nine cultural archons. They do not determine questions of law, or at least that is not the part of their work that inspires such frenzy and civic hatred as we have seen. No man is ready to grab a pitchfork and a torch because one of our high mystic archons entertains a conservative or a liberal interpretation of the Sherman Antitrust Act. No woman chews her fingernails to the quick because one of our moral prophets tends to side with local law enforcement against the federals, or the other way around. It is precisely because the boundaries defining Mr. Kavanaugh’s future work have long been breached, that any citizen, or what passes for a citizen, should have any strong feelings whatever regarding his person, his judicial record, his digestion, his fidelity to the Catholic religion he professes, his affection for the female sex, or anything else.
It is fitting, in a horrible way, that the confirmation should have been what it was, a chaos of sexual appetite, hatred, accusation, rumor, vengeance, fear, threats, and treachery. That is what you breed when the rule of law gives way to desire. It is a jungle whose predators prowl about on two feet. Oh, the forms of law are still there, just as were the forms of the Roman state when Theodoric had Boethius, the leading Roman citizen, bludgeoned to death. We have a senate, as Boethius did, but neither his nor ours fulfills the function of a senate. Ours is not a gathering of the senes, the old men, grave, tempered by experience in the world, and not apt to be swayed too much by popular passion; flawed men, as all men are, who could rise in mighty opposition against one another, without believing that their opponents were simply evil. Ours is like a football game with referees but no rules—better if you had no referees at all. A brawl in a barroom ends when the men’s arms grow tired. Our civic violence, because there are no rules but there are referees, never ends. “Chaos umpire sits,” says Milton, “And by his judgment more embroils the fray.”
I am not just speaking about what went on in the Senate. Lawlessness was on display everywhere. Let me enumerate its forms.
First, laws of evidence. A free people do not base their decisions upon gossip. That would destroy freedom itself. If gossip reigns, every man alive must know that any of his sins, no matter how ambiguous, how venial, or how long since repented of, may return in monstrous form to ruin his life. Think of the worst thing you have ever done. Imagine that your future depends not upon the sin, but upon sudden and fevered talking about the sin, talk that ramifies and grows more monstrous every day. No prudent man in such a sorry excuse for a polity will dare do anything that might be the object of gossip thirty years later. In that cauldron of treachery, the scum rises to the top: the most timid conformists, or the most feverish dealers in poison. Blow Mount Rushmore to rubble. Not one of the men upon it could have survived it.
Second, the principles that underlie statutes of limitation. These are two. The first is that evidence deteriorates. People forget things. They invent and imagine things. They make artificial sense of things that were not related. This is especially true when no definite crime has been committed. I can perhaps be trusted to remember which closet I found a bag of stolen money in. I cannot be trusted to remember what I felt when somebody suggested going on a drinking binge. In the latter case, I am apt to project onto the temptation a moral view that I have now but did not have then. It is hard enough to remember what we said last week. It is nigh impossible to remember what we said thirty-six years ago, in precise words, with all the shading of tone and doubt and concession. It is perhaps possible, barely possible, to remember what our thoughts were so long ago; but no free people will base any important decision upon it. And when we are talking about “recovered memories,” as in the case against Mr. Kavanaugh, we might as well be consulting a Ouija board, or calling Abigail Williams to testify against Tituba.
The more important principle is that of peace and social continuity. Battles must end. In the jubilee year, slaves are set free, and that is that. When boys in the old days got into a scrap, they would often pick themselves up, more dusty than hurt, and become friends again. What’s done is done. If we are not talking about a serious crime that was committed and not just intended or imagined or, the agent in a drunken stupor, placed within the realm of possibility—an act such as murder, arson, kidnapping, or rape—it is destructive of the common good to hold people responsible for bad things done long ago. Everyone’s home sits on a bomb, waiting to be detonated.
Third, the moral law embodied in the commandment, “Thou shalt not bear false witness against thy neighbor.” It is flagrantly wicked to accuse a man of serious crime unless you are sure of his guilt. It is not enough that you can imagine the guilt. Nor are you justified if you point to something less than a serious crime and expose him for having committed it or having intended it, if there is no urgency. If a man pockets a hammer from the hardware store and walks out with it, you may guess that he has not paid for it, and so you confront him on the spot. You may not tell other people about it many years later, or many miles away from the store. Both slander, whereby you tell what you know is a lie, and detraction, whereby, without sufficient evidence or in a context far removed from the deed, you reveal something destructive about someone, are wicked. Whistle-blowers should be rewarded, because they reveal crimes that are going on, right now. Tale-bearers should be despised.
Fourth, the moral law embodied in the commandment, “Thou shalt not commit adultery.” The senate is not stocked with saints. Ambition, avarice, and power do not make it likely. It is a safe bet in our time that every man and woman in the senate, or covering the events for television and newspapers, has committed some sexual sin that is fouler and more destructive of human flourishing than the worst that Mr. Kavanaugh was accused of. His accuser says he took liberties with his hands. He was fresh, as it used to be called. What he intended to do, no one, thirty-six years later, can know. What sexual sins can be worse than that? Habitual fornication is worse. Adultery is worse. Divorce rips a family in two. It is far worse. Pornography is worse. Perversions are worse. A dead child is worse.
And that is why Kavanaugh had to be destroyed. If you are a drunken teenage boy and you grab a girl when she does not want it, that’s a hanging offense. But if you fornicate, commit adultery, or engage in contraceptive sex, and the predictable and natural result occurs, and you want it out of the way, now that is a sacred right, one that must be protected with all the ferocity of a mother bear guarding her cubs. All the ferocity; none of the right.
Fifth, the principle of equity. The worst thing you can say about a scrupulously just man is that he follows all the rules, even in his own case. So Torquatus, in the Roman legend, had his own son put to death when he disobeyed military orders and engaged in a successful sortie against the enemy. The worst thing you can say about a tenderly sensitive woman is that she follows none of the rules, except in her own case. So the gentle mother spoils her son. We need what Spenser called “that part of Justice which is Equity,” which applies the rules of law flexibly to the individual case, usually but not always to mitigate a punishment. The point is broached by Aristotle, who compares equity (Greek epeikeia) to the leaden straps that masons in Lesbos used to match the shape of stones to the place where they would rest. Thomas Aquinas, following Aristotle, notes that law is necessarily general, so that when a judge, animated by the principle of equity, “bends” the law’s severity to meet justice in the individual case, he is not violating the law but corroborating it, following the mind of the lawmaker as far as he can fathom it.
We hate rape because it is vicious and violent, an offense against the vulnerability of woman, not to mention subjecting her to the possibility of a life-altering pregnancy. It is inhuman, reducing sexual congress to the appetite of a beast of prey. That is why in many states, until feminists demanded a revision of the law to secure more convictions, rape used to be a capital crime. Groping is to rape as a sucker-punch is to murder, or as shoplifting is to bank robbery. None of it is good. But justice demands distinctions, and equity weighs the age of the boy and the situation. In the old days he would have been given a good whipping. He would not have been shot by a firing squad. He would have tarred his reputation at the time. He would not have borne a red “R” on his chest for the rest of his life.
Sixth, foresight. People who pretend to govern others must ask, always, what will result from the principle of their action. Mobs can never do that. Mobs are led by passion, simply. A Mark Antony plays on their feelings as a snake-charmer making the cobra sway. Madison said that if the Athenian assembly were made up only of men as wise as Socrates, it would still have been a mob: it was too big. Our mob is enormous. Its membership is in the hundreds of millions. Not one man or woman in the major media or in government paused to ask what kind of polity we could have, if we are to govern by public frenzy and hysteria. It did not matter. Killing babies mattered. The walls of the republic, mildewed and buckling, did not.
Seventh and last, the female of the species, which is, as Kipling says, “more deadly than the male.” The male can be fair to other men’s children against his own. That is not in the female nature. That great admirer of women, G. K. Chesterton, said that there are only three things that women do not understand: Liberty, Equality, and Fraternity. He meant, by all three together, the lively liberty that a brotherhood of men enjoys when they argue with one another in a club or a beer hall or a college dining room, and no argument is ruled out for its being put forward by a plumber and not a professor, and everyone tacitly agrees that you have a right neither to an opinion nor to any tender feelings regarding your opinion, but rather to an argument. Women in our universities have given notice that they will not abide that masculine punch and counter-punch. Hence the “safe space,” safe for a cancer.
The justification for the beer hall, other than sheer delight, is that it conduces to the common good. Likewise, they who govern do so on behalf of those they govern. If women wish to lead men, they must lead men, for the sake of men, in men’s interests. The governor who governs in his own interest is a despot. The governor who governs in the interests of his coterie is an oligarch. But, with rare exceptions, academic and political women show no interest in the good of boys and men. Men once built and funded women’s colleges. Women now pick male pockets to fund women’s studies programs, where they teach girls how to hate their brothers. They use the building to slander the builders. Not one public woman has said that women must be scrupulously fair to members of the other sex and rather hard upon their own. A father commandeered to be an umpire at his son’s baseball game will call the close plays against his paternal feelings. We are being governed by stage sisters, many of whom have slaughtered their own offspring, gone mad with the delight of put-on terror, resentment, and destruction.
Hysteria is not a new thing in the world. Think of Salem. The new thing here is that Abigail Williams and Mercy Lewis are sitting at the bench. What is to be done? The same as must be done for the colleges that the politics of hysteria has ruined. Men must build their brotherhoods again, from the ground up, and be once again, if unacknowledged, the legislators of our common life.
Anthony Esolen is a Fellow of Thomas More College of the Liberal Arts, in Merrimack, New Hampshire. He is a translator of several epic works, including Dante’s Divine Comedy (Random House), and the author of a variety of books on culture, literature, education, and theology. Among the latter are Out of the Ashes: Rebuilding American Culture (Regnery), and Ten Ways to Destroy the Imagination of Your Child (ISI). His newest book, to appear in the fall, is Nostalgia: Going Home in a Homeless World (Regnery).
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