The problem here is that this basic structure of reality is at odds with ascendant transgender ideology, which says that being a man or a woman is entirely disconnected from biological realities but rather is rooted in what a person thinks themselves to be at any given moment. If a biological male thinks he’s a woman, then he is a woman. If a biological female thinks she’s a man, then she’s a man. Thinking makes it so!

The video at the bottom of this post is queued up to an extraordinary exchange that occurred at yesterday’s [03/22/22] Supreme Court confirmation hearings. Senator Marsha Blackburn asks Supreme Court nominee Ketanji Brown Jackson if she can define what a woman is. Here’s a transcript of what they said, and you’re not going to believe it.
Blackburn: Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?
Jackson: Um, Senator. Respectfully, I’m not familiar with that particular quote or case, so it’s hard for me to comment as to whether…
Blackburn: Okay… Do you interpret Justice Ginsburg’s meaning of “men” and “women” as male and female?
Jackson: Again, because I don’t know the case, I don’t know how I’d interpret it. I need to read the whole…
Blackburn: Okay. Can you provide a definition for the word woman?
Jackson: Can I provide a definition? No.
Blackburn: Yeah.
Jackson: I can’t.
Blackburn: You can’t?
Jackson: Mm. Not in this context. I’m not a biologist.
If there is a better exemplar of our times, I don’t know what it is. Here we have a Supreme Court nominee who either can’t or won’t offer a definition of what a woman is. Why? Because she claims that she’s not a biologist. Really? I guess that explains why I couldn’t make a sandwich today. I gave up when I realized that I wasn’t a baker and couldn’t confirm the identity of the bread in my pantry.
Okay, okay. I know I’m descending into the absurd here, but you get my point. Do you have to be a vet to recognize a dog? Do you have to be a butcher to recognize ground beef? This line of reasoning is indeed absurd, but here we are. And it’s probably a good time for us to take the full measure of the moment we are living in.
Have we really come to the point that a sitting judge and nominee for the highest court in the land cannot define what a woman is? Think how fast transgender propaganda has taken root in our culture that this very basic question would produce a blank stare and an “I don’t know” from a sitting judge.
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Rather than aim for perfection, conservative energy would be better spent rebuilding the foundations of virtue. We need laws that, for instance, encourage marriage, discourage divorce, and promote community through friendship and civil associations. The benefits of rebuilding a healthy society are uncontroversial. Moral regulations must build upon this foundation rather than grate against it. In this way, conservatives can support incremental progress toward traditional morality while avoiding the twin dangers of judgmental moralism and amoral libertarianism.

Tim Keller recently critiqued evangelical Christians for not developing a political theology—that is, a theory of how to apply religious beliefs to public policy. He correctly points out that Christians do not want to penalize every sin. Specifically, most evangelicals want to penalize abortion but do not want to penalize idolatry (i.e. false religion). He writes: “Since we can’t simply say, ‘If the Bible says its sin it should be illegal’—how do we choose which morals to politically champion?” Keller aims to prevent Christians from dividing over politics by accepting that the political implications of Christianity are debatable. Keller’s piece provoked a response from several commentators, including Adam Carrington.
Keller’s challenge applies not only to Christianity but to ethical philosophies more generally. Should an action be illegal simply because it is wrong? If not, then which wrong actions should be illegal? Are there “harmless wrongs” that the state ought not to forbid?
In America, one often hears that the state shouldn’t “legislate morality,” or that people have a right to do anything so long as they aren’t “hurting anyone.” This position derives from John Stuart Mill’s famous “harm principle,” which holds that the state may only interfere with liberty to prevent non-consensual harm to other people. Live and let live!
This view, while popular, is wrong: the law may encourage virtuous actions and punish evil ones. As I have argued elsewhere, conservatism ought to abandon the liberal idea that the state exists solely to protect individual rights. Rather, individual rights derive from, and must remain rooted in, a framework of moral duties oriented toward natural human goods. Natural goods are not fleeting desires; rather, they are perceived by reason to be worthy of pursuit for their own sake because they enable humans to reach the best possible state according to their nature. If, then, rights are designed to facilitate the pursuit of natural goods, one cannot have a “right” to do wrong.
Nevertheless, drawing upon the natural law theories of Thomas Aquinas and Richard Hooker, I will argue that the state ought to refrain from punishing minor vices. Sometimes, people ought to have tacit “permission” to perform wrong actions, particularly those with minor social consequences. This view of the relationship between morality and law is attractive in that it encourages the promotion of virtue while preventing harsh intolerance. It acknowledges the reality of human sin without excusing or ignoring moral norms. It is idealistic without being unrealistic.
The Common Good Involves Virtue
Classic natural law thinkers hold that human law ultimately derives from natural law, which originates from God’s creative design and is known through reason. Thomas Aquinas argues that the natural law encompasses “everything to which a man is inclined according to his nature,” including virtue, since all people have a natural inclination to pursue virtue (Aquinas, Political Writings, 119). As the Anglican Richard Hooker–who followed Thomas rather closely–wrote in The Laws of Ecclesiastical Polity, humans have a natural “desire” to become “more perfect,” i.e. to reach “an exquisite excellence of form” by “constantly and excellently doing whatever it is that their kind does” (62). They not only seek “continued existence,” both for themselves “individually” and for their species “through their offspring,” but above all aspire “to the greatest conformity with God by pursuing the knowledge of truth and growing in the exercise of virtue” (63).
Achieving basic goods, moreover, requires good political institutions. Hooker states that societies need laws “governing the order of their common life together,” which must be framed “for the sake of the common good” and for “the sake of public order” (82). Thus, as Aquinas likewise notes, “human laws should be adapted to the common good,” i.e. the collective flourishing of members in a political community, which is accomplished especially through natural goods such as life, peace, friendship, and the rearing and education of children (Aquinas, 138). Even supposedly private actions implicate the common good to the extent that they promote or hinder human flourishing.
In a chapter in Mere Christianity called “The Three Parts of Morality,” C.S. Lewis provides a good example of how virtue promotes the common good. He invokes the image of society as a naval convoy traveling through the ocean. There is a danger that the ships will either “drift apart from one another, or else collide with one another and do one another damage.” In order to avoid this, the individual ships must be in good shape; a ship with a faulty engine or steering mechanism will fall behind or veer wildly. The only way to keep the convoy safe is to ensure that each individual ship is seaworthy enough to stay in formation. Likewise, individual people who lack virtue are especially likely to harm others. So even “private” actions affect people’s ability to follow the rules and to lend society their aid.
If virtue serves the common good, then the promotion of virtue falls within the state’s legitimate powers. Hooker writes that “the course of politic[al] affairs cannot in any good sort go forward without fit instruments [i.e. citizens], and that which fitteth them be their virtues.” He argues for this reason that “pure and unstained religion ought to be the highest of all cares” for rulers inasmuch as religion is the best way to inculcate virtue among the citizenry. Whatever view of church-state relations we choose to adopt nowadays, Christian theorists traditionally perceived the inculcation of moral character to be a chief priority of good political communities. The same is true of non-virtuous or “vicious” acts, which may be proscribed. Hooker states that laws are not “properly devised” unless they “presume that man’s will is obstinate” and seek to “moderate his actions to prevent any hindrance to the common good” (82-83). This classic view follows Romans 13:1-7, which states that God instituted government to be a “terror” to people who do “evil” but to “praise” those who do “good.”
The Danger of Banning all Vices
Natural law theorists nevertheless believe that there should be practical limitations on laws that compel virtue or punish vice.
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If morality points toward the gallows for murderers, what of that other pillar of a constitutional republic, religion? What does religion, particularly the Christian religion, have to say about it? Let me just get out of the way and let Christians speak for themselves.

Here we go again. Wasn’t it just last week we were talking about the murder of 10 people in Buffalo, New York? Now we see 21 people, including 19 schoolchildren, gunned down in Uvalde, Texas. And just as before, America’s liberals are beating their breasts and demanding more gun control.
“As a nation we have to ask: When in God’s name are we going to stand up to the gun lobby?” President Biden exclaimed after Tuesday’s massacre. “When in God’s name are we going to do what has to be done? Why are we willing to live with this carnage?”
And again, just as before, America’s conservatives are hunkering down. We’ll argue that more gun control is a bad idea, that it won’t achieve its stated goal of making everyone safer. What the country needs, we’ll say, is better mental health services, better security at schools, better enforcement of existing gun laws, etc.

Conservatives, in other words, have our own ideas about “what has to be done.” One thing we won’t do is speak of “the gun lobby” as if it were a space alien, somehow not part of the nation Biden was addressing “in God’s name.”

Surveys of public opinion indeed have found considerable disagreement among Americans about how to battle gun violence. Article summaries in the first page of Google results for “gallup gun control” include things like this: “Americans’ 52% support for stricter gun laws is the lowest since 2014, and the 19% who favor a ban on possession of handguns is the lowest on record.” And this: “A Gallup poll in 2017 found 58% of Americans believing that new gun laws would have little or no effect on mass shootings.”
So, “as a nation” we have to ask: What in blazes are we going to do?
For my part, I have long reproached my fellow conservatives for neglecting the crime issue. From 2013 in the American Thinker, for example:

Conservatives’ chronic silence about crime allows liberal gun-controllers to flatter themselves that they are the champions of public safety and the defenders of innocents, and to pass themselves off as such to the public. . . .
Our slogan has long been: ‘Guns don’t kill people; people do.’ Let us follow that idea to its logical conclusion. While liberals pursue their impossible dream of eliminating murder weapons, we should be setting about the very practical, effectual, and constitutional task of eliminating murderers.
More on that later. First, let’s talk some more about the carnage we’ve been living with.
The Uvalde massacre is not the first time such things have struck near me. In 2017, the slaughter of 26 people, including an unborn child, at a church in Sutherland Springs, Texas, happened less than 30 miles from my home. Before that, I was in Waco in 1993 when the besieged Branch Davidian compound outside of town burned down, with the loss of 76 lives, including 25 children and two pregnant women. And I was in Killeen in 1991 when a gunman crashed his truck into Luby’s Cafeteria there and shot down 23 people, wounding 27 more.
Sad to say, this doesn’t make me the Typhoid Mary (or, rather, the Joe Btfsplk) of American massacres. Anyone who digs around in the Gun Violence Archive will have no trouble at all in finding a mass shooting or three in his own neck of the woods. It’s like the old movie promo: “Coming soon to a theater community near you!”
Again, what are we going to do about it?
At The Federalist, David Harsanyi warns us not to surrender to “do-somethingism” on guns. On guns, that’s good advice, as it is also good advice for opposing the Left’s attempts to abridge the freedom of speech and religion in the name of public safety, social justice and LGBTQWTF rights. But as I argued back in 2013 (just after the Sandy Hook massacre), there’s something we can be doing—something we should have done long ago.

Responding last week to the Buffalo shooting, I quoted John Adams: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” The maladjusted teenagers who committed mass murder in Buffalo and in Uvalde certainly appear to be strangers to morality and religion, and liberals—who for a half-century now have been trashing America’s hidebound “moralizers” and ignorant “Bible thumpers”—are not to be blamed for disliking the perverse fruits of their labors. Who could like the way these little monsters turned out?

We conservatives, meanwhile, should bear in mind that when Adams pronounced the Constitution “wholly inadequate” to the government of an immoral and irreligious people, this included the Second Amendment, and the First Amendment, too. Is it to be expected that liberals, never repenting of their having subverted morality and religion, should shrink from subverting those two amendments as well?
No, the Left looks at the Bill of Rights, and at other parts of the Constitution such as the Electoral College and the Senate, as impediments. It accordingly is intent on bursting through them (to use Adams’ phrase) “as a whale goes through a net.”
What are we going to do about that? Heartfelt prayers are certainly in order, much as liberals—transfixed as they are by their pursuit of gun control as if it were the Holy Grail—might sneer at them.
The prayer-scoffers do have a point, though: More than prayer is required. I don’t mean, as the scoffers do, that we must dream up some magical means of eliminating murder weapons. Leave that to the impossible dreamers. But what did I say in that American Thinker post almost 10 years ago? “We should be setting about the very practical, effectual, and constitutional task of eliminating murderers.”
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