POST-GAZETTE - Res Publica

Whose Ox Is Being Gored

by David Trumbull -- March 9, 2012

"The numerous academies in New England have been established substantially in the same manner. They hold their property by the same tenure, and no other. Nor has Harvard College any surer title than Dartmouth College. It may to-day have more friends; but to-morrow it may have more enemies. Its legal rights are the same... They are founded by private persons, and on private property. The public cannot be charitable in these institutions. It is not the money of the public, but of private persons, which is dispensed. It may be public, that is general, in its uses and advantages; and the State may very laudably add contributions of its own to the funds; but it is still private in the tenure of the property, and in the right of administering the funds."

The quotation above is from Daniel Webster's 1818 argument before the United States Supreme Court in the Dartmouth College case. At issue was whether the government, in this case the State of New Hampshire, could tell a private corporation, Dartmouth College, what to do. I thought of this celebrated case recently when I read that the United States Conference of Catholic Bishops plans to pursue both "legislative and judicial efforts to restore respect for religious freedom in the nation."

The points-at-law raised successfully by Webster in the Dartmouth College case -- the constitutional prohibition of ex post facto laws and the inviolability of contract -- differ from the First Amendment freedom of religion and speech arguments likely to be used in the bishops' brief, however, the parallel in the implication of the cases is forceful.

The Obama Administration demands that Catholic institutions bend to the will of the state and violate their consciences by either (1) paying for what they find morally impermissible or (2) abandoning corporal works of mercy such as hospitals. As they can do neither 1 nor 2 and remain Catholic, Obama is, in essence, attacking the very existence of the Catholic Church in America. It is much as when the legislature of New Hampshire acted to dissolve Dartmouth College and reconstitute it along lines more conformable to the state's notions for the organization of a college.

Honest liberals of all religions or no religion who cherish their liberties should be as concerned as Catholics now are over the Obama Administration's threat to religious liberty. As I wrote here two weeks ago, if Obama can do this, then any President, liberal or conservative can force anyone to do anything he wants. To paraphrase Webster, other institutions (perhaps some dear to liberals now applauding the Administration's health care ruling) may to-day be stronger and have more friends than the Catholic Church, to-morrow they may have more enemies. To-day it is the bishops' ox. If this state over-reach into the private realm is successful, who knows who ox will be next.