Titus, Herbert W.

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Liberty University Law ReviewVolume 2 | Issue 2 Article 52008A Reply to Dean Jeffrey C. TuomalaHerbert W. TitusFollow this and additional works at: http://digitalcommons.liberty.edu/lu_law_reviewThis Article is brought to you for free and open access by the Liberty University School of Law at DigitalCommons@Liberty University. It has beenaccepted for inclusion in Liberty University Law Review by an authorized administrator of DigitalCommons@Liberty University. For moreinformation, please contact scholarlycommunication@liberty.edu.Recommended CitationTitus, Herbert W. (2008) "A Reply to Dean Jeffrey C. Tuomala," Liberty University Law Review: Vol. 2: Iss. 2, Article 5.Available at: http://digitalcommons.liberty.edu/lu_law_review/vol2/iss2/5REPLYTHE UTILITARIAN SWITCHHerbert W. TitustDean Tuomala rightfully points out that those-Christian or otherwise-whoadhere to the "natural law" theory end up in the same place as the legalpositivist, employing law as a "utilitarian instrument for creating a social orderin which people are compelled to do that which promotes the common good."'Not only is this a methodological "switch" inconsistent with the premise uponwhich natural law is based, as Dean Tuomala observes, 2 it is a fatal misstep thatwill inexorably undermine the moral foundation upon which the natural law isbased.According to Christian natural law theory, the moral norms upon which lawis based are unchanging, uniform, and universal. If, however, civil enforcementof those norms is to be based upon an assessment of "societal costs andbenefits," as Dean Tuomala suggests, 3 then civil legal rules will necessarilydepend upon pragmatic considerations based upon human estimations of themost effective way to reach a result tempered by the desirability of that result.Take, for example, a civil government financed and administered welfaresystem for the poor. If the result to be achieved is the elimination of poverty, oreven its substantial reduction,-surely goals consonant with Christianmorality-how do we know whether a tax subsidized program is the best wayto reach either of those goals? Furthermore, how do we know whether eithergoal is attainable at all? For example, beginning in the 1960's America'swelfare systems for dependent children and for the unemployed grew steadilyunder President Lyndon Johnson's Great Society. Yet, by the 1980s wediscovered that these programs had failed miserably, hurting the very peoplethat they were designed to help.4Despite the overwhelming evidence of failure, America's leaders haveutterly failed to ask whether it is the business of civil government to take care ofthe weak and the poor. Instead, "compassionate conservative" critics ofgovernment welfare have called for "taxpayer funds [to be made] available to adiversity of antipoverty groups, so that recipients can choose from a variety oft B.S., University of Oregon, 1959 (Phi Beta Kappa); J.D., Harvard University, cumlaude. Of Counsel, William J. Olson, P.C., McLean, Virginia. Member of the Virginia Bar.1. Jeffrey Tuomala, The Bible andAmerican Law: A Response to Dean Herbert W. Titus,2 LIBERTY L. REv. 329, 3 32-33 (2008).2. Id. at 332.3. Id. at 332-33.4. See generally CHARLEs MURRAY, LOSING GROuND: AMERICAN SOCIAL POLICY, 1950-1980 (1984).HeinOnline -- 2 Liberty U. L. Rev. 335 2007-2008LIBERTY UNIVERSITY LA W RE VIEWreligious and nonreligious traditions." 5 But out-sourcing government welfareprograms to tax-subsidized, faith-based organizations has not so muchimproved welfare services as it has "corrupted" the recipient organizations bypoliticizing them.6Had Biblical law been consulted, instead of the natural moral law of love,tax-supported welfare programs would never have been undertaken in the firstplace. Both the Old and New Testaments teach that poverty cannot beeliminated from any society. Indeed, even in "holy" Israel, God revealed that"the poor will never cease out of the land,' 7 and Jesus taught that "ye shallalways have the poor with thee."8To be sure, these are not statements calling for callous disregard of the poorand downtrodden. To the contrary, the Old Testament commanded the peopleto reach out to the poor;9 and the New commended those who did likewise. 10Nowhere in the Scriptures, however, is there any evidence that it is within thejurisdiction of the civil authorities to care for the poor. Even in Old TestamentIsrael, God's command to take care of the poor and needy is not supported byany civilly-enforced sanction, taxation or otherwise. To the contrary, giving tothe poor and needy was a "heart" matter, not a civic duty. Thus, Godadmonished the people not to "harden thy heart, nor shut thine hand from thypoor brother, but thou shalt open thine hand wide unto him,"" not under thethreat of a civil sanction, but pursuant to a promise that if one's "heart [was] notgrieved when thou givest unto him, God shall bless [him] in all [his] works...,,!2 In like manner, the New Testament attests that God "loveth the cheerfulgiver," the one who "purposeth in his heart" to give "bountifully," not"grudgingly or of necessity."' 3As Dean Tuomala reminds us, in America's early years, her law teachers andjudges acknowledged God's law as the foundation of the nation, and wouldapply Godly principles with particularity in accordance with the Western LegalTradition. 14 No better example of this truth can be found than in the adoption5. MARVIN OLASKY, COMPASSIONATE CONSERVATISM: WHAT IT IS AND WHAT IT DOES, HowIT CAN TRANSFORM AMERICA 182 (2000).6. Robert A. Sirico, Faith-Based Funding Politicizes Religion, ACTON INSTITUTECOMMENTARY, May 5, 2006, http://vl.acton.org/ppolicy/comment/article.php?id=32 1.7. Deuteronomy 15:11 (KJV).8. Matthew 26:11 (KJV).9. See Deuteronomy 15:11.10. See 2 Corinthians 9:9.11. Deuteronomy 15:7-8.12. Deuteronomy 15:10 (KJV).13. 2 Corinthians 9:6-7 (KJV).14. Tuomala, supra note 1, at 329-30.[Vol. 2:335HeinOnline -- 2 Liberty U. L. Rev. 336 2007-2008THE UTILITARIAN SWITCHof the "free exercise of religion" guarantee in Article I, Section sixteen of theoriginal 1776 Virginia Constitution. After stating the principle that"religion,"--that is, those duties owed to the Creator which are enforceableonly by "reason and conviction," not by "force or violence,"--was subject onlyto the "dictates of conscience," the guarantee concluded that it is "the mutualduty of all to practise Christian forbearance, love, and charity towards eachother."'15In sum, welfare for the poor was a "mutual duty" not because it wasunnecessary for the civil government to use its taxing and administrativepowers to provide for a "safety net" for those who met its eligibility criteriabecause the nation was largely rural, agrarian, and religiously homogeneous.Rather, caring for the poor was a "mutual duty"-because by its nature, it couldbe discharged only voluntarily and unconditionally, governed solely by thedictates of the consciences of the giver and the receiver, according to God'slegal order that is fixed as to time, uniform as to person, and universal as toplace.15. VA. CONST. art. I, § 6 (1776) (emphasis added).2008]HeinOnline -- 2 Liberty U. L. Rev. 337 2007-2008HeinOnline -- 2 Liberty U. L. Rev. 338 2007-2008

A Reply to Dean Jeffrey C. Tuomala

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A Reply to Dean Jeffrey C. Tuomala

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