Is Christmas a political event? Yes, in two ways. First, American Civil Liberties Union lawyers can be counted on to rush to court, at the first sign of Christmas, to force communities to remove Nativity creches from public places, to silence Christmas carols in schools and to prevent public use even of the word, "Christmas," from corrupting the "Holiday Season." They commonly argue that public recognition of Christmas is politically divisive, although the controversies usually arise only upon the filing of their own lawsuits.
In a second and more basic way, Christmas is a political event. When the second person of the Trinity became man, he entered the world as a subject of the Roman Empire which recognized no moral limit to the absolute power of its law. Some philosophers, such as the Roman statesman, Cicero, had argued that law was "the distinction between things just and unjust, made in agreement with ... Nature." But the general rule before Christ was that objective justice had nothing to do with the validity of law and therefore that there was no moral limit to what the state could do. The incarnation of the divine person as man, manifested at Christmas, affirmed instead that the power of earthly rulers is subject to the law of God. As Peter told the Sanhedrin, "We must obey God rather than men." Acts 5:29. The Christian era began with civil disobedience when the Magi, at divine direction, disobeyed the state in the person of Herod and "went back to their country by another way." Matthew 2:12. And Joseph and Mary rejected the authority of the state when they fled into Egypt with the child to escape from Herod. Matthew 2:13-15.
With the entry of the divine person, Christ, into the world, the absolute claim of the state met a new kind of challenge. Herod tried to kill the child because he wrongly saw him as a contender for political power. Pontius Pilate could not understand why Christ would not make a deal. He asked, "What is truth?," John 18:38, unaware that Truth, with a capital T, was the person standing in front of him.
Are there moral limits to what the state can do? The answer given by the Soviet Union, Nazi Germany and many regimes in history was: No. The question remains today. The people of California voted last month to fund the creation of human beings for the purpose of killing them and using their parts for the benefit of others. This was an extension of Roe v. Wade, in which the Supreme Court decreed that unborn human beings are nonpersons subject to execution at the discretion of others. That power of the state to depersonalize the innocent had been the legal premise of the Nazi depersonalization and extermination of the Jews. It was also the premise of the Dred Scott case which declared that slaves were property rather than persons.
The reigning jurisprudence today is legal positivism, in which none of those deadly decrees can be said to be unjust because no one can know what is just. "Truth," said Justice Oliver Wendell Holmes, "is the majority vote of the nation that could lick all others." For Holmes, "the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction." As Hans Kelsen, the leading legal positivist of the 20th century, put it, "justice is an irrational ideal." Any law is valid if enacted according to the prescribed procedures. Kelsen admitted that the Nazi extermination laws were "valid law" according to positivist theory In the world of positivist jurisprudence, there is no room for Martin Luther King's conclusion, in accord with Thomas Aquinas, that a law is unjust and void if it "is not rooted in eternal law and natural law." This is not a merely Christian concept. But the natural law makes ultimate sense only if we identify its Lawgiver. The political impact of Christmas arises from its assertion that the infant Christ is that Lawgiver and that his law controls.
Today, when politicians and judges from the Pontius Pilate school of jurisprudence seek to liberate the state from the moral law, they are trying to relitigate an issue that was explicitly settled by the highest authority two millennia ago. Every state has a god, an ultimate authority it recognizes. What Christmas tells us is that, whether they like it or not, political leaders derive their rightful authority from the real God and they must exercise that authority in accord with his law. That is why the state can never have authority to legalize murder, to wage war unjustly, to sanction economic, racial or other oppression, or otherwise to violate the higher law.
The courts this year will do their best to extirpate Christmas from public life during the "Happy Holidays." From the standpoint of the positivist state that makes sense. That baby in the crib is a threat. Merry Christmas.
Prof. Emeritus Rice is on the Law School Faculty. His column appears every other Thursday. He can be contacted at Plawecki.1@nd.edu.
The views expressed in this column are those of the author and not necessarily those of The Observer.
