Now, all of the preceding has one huge asterisk attached to it; everything I have argued holds if and only if Obamacare falls within the normal spectrum of good, mediocre, and bad law. Now don’t get me wrong; my own view is that it falls very decidedly on the “bad law” end of the spectrum, in a whole host of ways. But America has seen a lot of very bad laws—Patriot Act, anyone?—that have not warranted, or have certainly not evoked, this kind of response. If the Right is not going to be hypocritical, they have to show why this is different and unique. If in fact it is an abomination before God or against man, an attack on the body politic, a form of tyranny or gross injustice, or sure to do incalculable harm to the common good, well then, we may be in a state of justified exception to the principles I articulated above. Hooker after all says, “Not that I judge it a thing allowable for men to observe those laws which in their hearts they are steadfastly persuaded to be against the law of God”; obviously there comes a point at which “it’s the law of the land” should not be sufficient in itself to compel obedience. If, for instance, to pick an issue of particular concern to conservatives, Congress were to pass a law requiring that all doctors without exception must perform abortions on demand, civil disobedience on the part of doctors would be the only acceptable option, and ferocious opposition by legislators might be in order. In cases such as this, we would celebrate the many checks and balances in our constitutional system, and seek to use whichever ones we could to obstruct the implementation of such an unjust law. But is the Affordable Care Act, as such, of this nature?
Those Socialist Hebrews
In the fascinating second chapter of his provocative book, The Hebrew Republic, Eric Nelson argues that the advocation of redistribution of wealth in the modern political tradition arose not from Enlightenment socialist ideas, but, believe it or not, from the seventeenth-century appeal to the authority of Old Testament Israel and the attempt to make it politically normative for modern societies. This is an argument that is sure to turn the narrative of Bible-thumping Red State America on its head–according to that narrative, Scripture is adamant about the sanctity of private property, and in proportion as societies have sought to found their government upon Scripture, in the same proportion, they have protected private property rights. Only when they have rebelled against God and embraced atheistic ideas, we are told, do they toy with evil utopian schemes like redistribution of wealth. Right in line with this narrative, most modern Reformed advocates of some form of “theonomy”–the attempt to repristinate Biblical law in modern politics–have produced a “Biblical economics” that is curiously right-wing and libertarian.
But, on Nelson’s account (though of course this is not the point Nelson is out to make) this paradigm is precisely backward–it was in pursuit of seventeenth-century “theonomy” that theologians and political thinkers embraced the idea of “levelling” or redistribution of property. It was obvious to them that the purpose of the Jubilee and sabbath laws, among many other Pentateuchal land laws, was to maintain a relative long-term equality in property ownership by regular redistribution. Similar measures, it seemed, would need to be instituted in any Christian society that followed God’s law. Indeed, so dramatic was the force of this appeal that it worked to overturn the long-standing consensus against redistributive (or “agrarian”) laws in Christian Europe, a consensus that was grounded not, as we might expect, on appeals to Scriptural authority, but rather, on the authority of classical Roman writers who argued for the sanctity of private property rights in order to protect the original expropriations of the patrician classes from any recovery by the plebeians.
Cicero, in particular, had rendered the authoritative verdict on this point: “Property becomes private through long occupancy, and each one should retain possession of that which has fallen to his lot; and if anyone appropriates to himself anything beyond that, he will be violating the laws of human society….The man in administrative office must make it his first care that everyone shall have what belongs to him and that private citizens suffer no invasion of their property rights by act of the state.” The “ruinous policy” of the proposed agrarian laws, says Cicero, constitutes such an invasion. “In short,” says Nelson, “Cicero characterizes the agrarian movement as seditious, dangerous, and violently unjust. For what is an agrarian law, he asks in De officiis, but an initiative “to rob one man of what belongs to him and to give to another man what does not belong to him?”
Modern Christian conservatives thus find themselves in the awkward position of parroting Cicero, over against a tradition that sought instead to follow Moses.
Of course, as I have always hastened to point out in the past, this kind of “agrarian” or “redistributive” drive does not issue from a contempt for private property, but rather, from a much higher valuation of private property–private property is seen as so important that it is imperative to make sure everyone has enough, which means making sure nobody has too much.