Virtue & Manhood

Throughout this last semester in a Constitutional Law course, we spent a significant amount of time focused on the 1st Amendment. More exactly, once we got past Substantive Due Process, the remaining weeks of class were spent on Freedom of Speech, Freedom of Religion, and Establishment Clause. As we were grinding through the cases it was unavoidable to see progressive change in American values in the 20th century. As the nation pulled away from an exclusively Christian-based set of ethics, sometimes in an effort to oppress fringe religious members and to outright discriminate other religious minorities, we eventually got to the legal space we are now. The three-part test decided in Lemon v. Kurtzman (1970) has been the standard test concerning religious entanglement since its ruling. In the separating of the Church from the State, there has also been a separation of virtue from society. For whatever flaws the secularist might declare about the Christian history of the United States, the clear understanding of American virtue is not likely to be one of them.

Virtue is the popular topic in my school’s political philosophy department. Aristotle’s exposition in Book 5 of the Nicomachean Ethics is a required reading for the topic. The Founders were educated in such ancient theory and steeped in the modern political philosophy that was also shaped by the ancient notion of virtue. Between the ancient thinkers and the sacred texts, virtue was at the very least the second half of the Ten Commandments by the time the nation was founded. In the secularizing of our nation, where has all the virtue gone? Throughout the political and legal writings in the first century of our nation public virtue was often the citation for allowing religion in government. There was an undeniable link between the notion of virtue and the role of religion in the public space. As the decades passed, and for whatever reason one might point to, public religion has fallen out of favor. The prominent place houses of worship once had in the community has been lost. Where or what other institutional structure do people from various demographics regularly gather to learn a particular set of morality? This is one of the better definitions I have heard that describes the loss of civic virtue.

What is worse, what has civic virtue been replaced? If not the State, then nothing. Dennis Prager, a talk radio show host,  frequently points out at this loss of social morality. According to the jurisprudence of the Court, the most sacred right appears to be one’s sexual proclivities. Arguably the next most important rights being declared are self-identity and right of conscience. None of these “rights” were articulated by the Founders, but all of them in the not too distant future may threaten the rights which were articulated by the Founders. Where am I going with this?

The recent issues in the news from bathrooms and gender identity, killing a gorilla to save a child, and now an example of justice not fully served, I think all of these are evidence of our lost virtue. It might be worth noting, the ancient philosophers did not find individual rights to even be a issue worth considering within the dialogue of virtue. The notion of individual rights is exclusively a Western principle which I would argue originates in the Imago Dei described in Genesis. Harvard Law’s Professor Jeannie Suk pointed out a difficult paradox concerning the bathroom issue, particularly concerning Title IX protections in which schools will be caught in no-win situations that may cost them dearly. Likewise the concern of a gorilla over that of a child is a clear example of a morally bankrupt understanding of human life opposed to animal life.

How is the case of the sex crimes committed by Brock Turner an example of lost virtue? Less in the individual act but the occurrences of sex crimes at large and the questionable justice that was the sentence. On a positive note, they have been going down on a national scale but one must also question how many of these crimes are not reported by colleges to proper legal authorities. Unless Mr. Turner appeals the conviction, the punishment leveled against him for his crimes will stand and he cannot be retried for a better punishment due to Double Jeopardy. This case has also challenged the validity of the Court to wage proper justice because the sentence was so satisfying. There has been significant writing across the decades concerning the restraint by which judges rule on certain cases so as to preserve the validity of the Court. As the argument goes, if a wayward judiciary acts as an unelected legislature who has power over the Supreme Law of the Land, it would be the people’s democratic duty to abolish such an institution.

Concerning the event, trial, and aftermath, there have been many heartfelt responses offering God’s grace to Brock Turner and  many articles rebuffing his father’s insensitive comments. Often it seems national news fails to get the most basic understanding of a person’s intrinsic value. It appears with this case was a perfect storm of outrage. Justice appears to have been avoided, and the perpetrator was a white male who was at least perceived to be upper class. It is culturally expected that everyone castigate this individual as much as possible. I find the outrage of this case to be completely founded and if I were a voter in Santa Clara County I would see about recalling Judge Persky. My understanding of grace hopes the victim and the perpetrator might recognize God’s goodness in their lives if not now at some point in the future.

Brock Turner has already experienced mercy. He was convicted of three felony counts of sexual assault. His sentence was 6 months in prison and 3 years probation. He was convicted of violating California Penal Code 220 and two counts of violating 289. A violation of 220 “shall be punished by imprisonment in the state prison for two, four, or six years.” For each violation of 289 “shall be punished by imprisonment in the state prison for three, six, or eight years.” One’s basic math skills then say his punishment should have been 8-22 years in prison according to the Penal Code. I originally intended on providing the actual text of the penal code but even those were more graphic than I wish to appear on my blogs. The letter of the victim to her perpetrator was even more graphic and difficult to read.

This event is not representative of manhood across the nation. The universal public outrage might be a sign that all is not yet lost. Then again, until civil discourse might occur about masculinity in the United States the state of men might not have a reason to be optimistic. I would argue that manhood cannot be well defined without a clear understanding of public virtue.