I was impressed by George Weigel’s provocative article, “Moral Clarity in a Time of War” (January), which applies the Catholic doctrine of just warfare—when it is to be engaged in and how it is to be conducted—to a possible preemptive war by the United States and whatever allies it can muster against Saddam Hussein’s Iraqi regime. I was surprised to find the doctrine, as he interprets it, to such a large degree supportive of the present Administration’s justifications for taking that course of action in the future should all other means of disarming Saddam’s regime fail.
There are several parts of Mr. Weigel’s argument that I cannot agree with. In the law of war, as understood by most Western states since 1648 and the Treaty of Westphalia which terminated the Thirty Years War, preemptive warfare is generally frowned upon, because it is so difficult to distinguish from “wars of aggression,” unless the party first attacked was itself planning an imminent first strike on the party that acts preemptively. This was probably the situation that confronted Israel in 1967 and that justified its preemptive initiation of hostilities against its Arab neighbors. However, the imminence of Hussein’s attack with weapons of mass destruction against Iraq’s neighbors—or the United States, for that matter—is far less apparent, at least on the basis of what our government has seen fit to reveal up to now. Even Iraq’s immediate neighbors do not seem overly concerned about this threat—Israel excepted, of course. It might be more prudent on our part to watch and wait until the threat becomes more urgent, not only to ourselves, but to our friends and allies in the region.
Second, under the heading of “just cause,” Mr. Weigel seems to argue that a war of aggression against a sufficiently evilly disposed opponent might be justified in order to establish “the tranquility of order.” I don’t think there is presently any moral justification for such a slippery concept or practice. The U.S. may be a “superpower” militarily, economically, and technologically, but it is not so great a superpower that it can establish a worldwide Pax Americana under its protective aegis. Attempting such a goal would be a case of overreach and would undoubtedly stir up such a hornet’s nest of opposition that it would set a major part of the world’s population against us.
Barton L. Ingraham
Santa Fe, New Mexico
A war with Iraq, in George Weigel’s opinion, fits his definition of a just war—but not Pope John Paul II’s. In his Christmas message, the Pope called for people to extinguish the ominous smoldering of a conflict which, with the joint effort of all, can be avoided.
Vatican officials have spoken more bluntly. Archbishop Renato Martino, the prefect for the Pontifical Council for Justice and Peace, recently told reporters that a preventive war was a war of aggression, and, therefore, not a just war.
The Vatican foreign minister, Archbishop Jean-Louis Tauran, cautioned that a strike against Iraq would aggravate ill will toward Christians in the Muslim world: a type of anti-Christian, anti-Western crusade could be incited.
World opinion is now heavily critical of the United States. To President Bush’s credit, he overruled his war hawk advisors and did participate with the UN Security Council in developing a weapons inspection plan for Iraq. Out of that should come a path to peace, giving us all an opportunity to work constructively with our neighbors to the south, the Muslim world, and Africa. Let’s take the leadership role in development around the world. Let’s earn a reputation, not as a military power, but as a leader in promoting prosperity and democracy.
James McFadden
Bronx, New York
I did not find that George Weigel’s article contributed to moral clarity, but instead provoked more questions. How can this devoted follower of John Paul II ignore the Pope’s ever more explicit condemnations of U.S. plans for a preemptive strike in Iraq? When the Pope says “No to war” and states that war “is always a defeat for humanity,” what does Mr. Weigel reply?
Mr. Weigel already discounts the statement of our U.S. bishops, a strategy that seems at odds with his general defense of hierarchical authority in other intrachurch disputes. He considers religious statements on the war to be symptomatic of “clericalism.” After all, he claims, religious leaders are not responsible for statecraft, and are not as informed as political leaders “about the relevant facts.” But can governance be separated from the moral responsibility of religious citizens to act critically?
I am also worried about Mr. Weigel’s implication that Father John Courtney Murray would agree with Machiavelli’s dictum that the end justifies the means, or that the Sermon on the Mount can be bypassed in moral analysis. What does Mr. Weigel make of Christ’s teachings and the ethics of the New Testament?
If Mr. Weigel wants to convince us that the just war approach is Christworthy, he must connect and more fully ground his arguments with central theological beliefs. I know that Mr. Weigel and his supporters are sincere, very smart, very energetic, and devoted to the Church, but are they faithful to the Christian gospel?
Sidney Callahan
McKeever Chair of Moral Theology
St. John’s University
Ardsley-on-Hudson, New York
In “Moral Clarity in a Time of War” George Weigel makes a strong case for the public relevance of the just war tradition to public statecraft. But when he turns to the criterion of “last resort,” the case becomes less convincing. Mr. Weigel defines the satisfaction of the last resort criterion “in those cases when a rogue state has made plain, by its conduct, that it holds international law in contempt and that no diplomatic solution to the threat it poses is likely, and when it can be demonstrated that the threat the rogue state poses is intensifying.”
Despite intensive efforts by the Bush Administration and Blair Government, and despite Saddam’s continued roguish character, it is not clear that the second and third conditions—the impossibility of a diplomatic solution and the intensification of the threat—are currently accurate descriptions of Iraq. Backed by force, UN inspections efforts seem to be working. Nor is it clear, to the public at least, that the Iraqi threat has grown.
Scott Waalkes
Malone College
Canton, Ohio
The Sermon on the Mount may not be identical with morality, but for George Weigel it apparently has no bearing on it whatsoever. In defending the just war tradition, Mr. Weigel never mentions Jesus Christ, discusses charity once, and makes scant reference to God. Without serious theological analysis, he distorts the history of the just war tradition, and ignores Pope John Paul II’s important contributions to moral theology. In the Summa Theologiae, Thomas Aquinas discusses warfare in the context of charity, devoting more than twenty articles to analyzing charity’s nature and demands. Paul Ramsey eloquently demonstrates how charity requires us to defend the innocent in conflict situations. Mr. Weigel mentions these discussions, but they are an afterthought, and he makes no attempt to relate charity to the ad bellum part of the tradition.
Astonishingly, he also claims that peace is not a matter of the individual’s relationship to God, “which by definition has nothing to do with politics.” How can any Christian so radically separate his or her interior development from political life? For years, Pope John Paul II has rejected this kind of absurd divorce between political morality and individual moral growth. To take just one example, in Veritatis Splendor he analyzes the story of Jesus and the rich man, unambiguously grounding moral norms in our relationship to God. The Pope has made this message one of the hallmarks of his defense of the person’s dignity. Unfortunately, Mr. Weigel blithely ignores it, giving us a just war tradition without God and Christian love. In a time of war, this is muddled thinking, not moral clarity.
Derek S. Jeffreys
Assistant Professor of Humanistic Studies And Religion
University of Wisconsin
Green Bay, Wisconsin
George Weigel goes wrong in his attempt to amend or adapt the just war tradition to make it compatible with the neoconservative ideology of American military interventionism and nation building. Most problematic is his belief that the United States is justified in taking “preemptive” action against any country determined to be a “rogue state,” if that “rogue state” appears to have (to use that increasingly tiresome phrase) “weapons of mass destruction.”
Who gets to decide what constitutes a “rogue state”? From the looks of his article, Mr. Weigel would probably argue, “the U.S.” But why? Since when did God delegate this kind of authority to the government of a single nation, or any human institution? Entrusting this responsibility—that is, the responsibility to topple regimes and prop up new ones at will all over the world—to our elected officials seems pretty dangerous. Does Mr. Weigel think it even remotely possible that assigning “rogue nation” status to a particular country may at times spring more from self-serving political expediency on the part of the assigner than an earnest and objective appraisal of the alleged roguery committed by the country under scrutiny?
Mr. Weigel clearly wants to set up a double standard among nations: some are entitled to possession of nukes (namely, we and our allies), and some aren’t (namely, any nation we don’t like or that doesn’t like us). Moreover, he gives us permission to invade countries we don’t like under the pretext of their supposed “rogue nation” status, and to install regimes more amenable to our interests once we have overthrown the rogues. Naturally, these unfortunate other nations don’t have the same prerogative to invade us and change our government if they determine us to be guilty of roguery.
Thus in the Weigelian perspective, state sovereignty applies to no one except the United States, which, being the only world power and apparently having some innate goodness other nations lack, gets unlimited jurisdiction across the globe to change things for the better as it sees fit. It is hard to understand how what he suggests is anything other than a blueprint for U.S. world domination, which in turn is certain to provoke more acts of terror from those who already resent our constant meddling and frequent self-righteous posturing.
Andy Nowicki
Thomson, Georgia
George Weigel replies:
“Moral Clarity in a Time of War” was intended to address the moral/theological challenges posed to the just war tradition by the new realities of international public life, including the international terror networks, the proliferation of weapons of mass destruction in the hands of unstable and aggressive regimes, the possibility that such weapons could be transmitted to terrorist organizations, and the inability of international institutions to address these threats to the very possibility of the peace-of-order in international affairs. While some of my correspondents take up various of these theological challenges, others decline to deal with questions of theology at all, preferring to inveigh against the policies of the Bush Administration. As the Administration is quite capable of defending its policies and its judgments, let me focus here on several of the theological and ecclesiastical questions raised.
After reviewing the traditional just war criteria, the Catechism of the Catholic Church teaches that the evaluation of these conditions for moral legitimacy belongs to the prudential judgment of those who have responsibility for the common good (§2309). The meaning of this seems plain. The duty of religious leaders is to teach the principles of the tradition and urge that they be brought into public and governmental deliberation about the possible use of armed force in the service of peace, justice, and freedom; but it is not the duty of religious leaders to make the call as to whether those criteria have been satisfied in a particular case. That is the prerogative and the duty of those who have taken responsibility for the common good—public officials. This duty includes evaluating when the criterion of last resort has been satisfied.
In his address to the diplomats accredited to the Holy See on January 13, Pope John Paul II said the following: “War is never just another means that one can choose to employ for settling differences between nations. As the Charter of the United Nations Organization and international law itself remind us, war cannot be decided upon, even when it is a matter of ensuring the common good, except as the very last option and in accordance with very strict conditions, without ignoring the consequences for the civilian population both during and after military operations.” I agree. But the determination of when the very last option has been reached is a matter for prudential judgment, not mathematical calculation.
Such a determination takes place in history, not in a vacuum. In the present instance, the relevant history goes back more than a decade. In 1991, Iraq agreed to disarm. For twelve years it has failed to do so. It impeded weapons inspections during the 1990s, and expelled the UNSCOM inspectors in 1998—not, one can only assume, out of mere pique, but to block further impediments to its ongoing chemical and biological weapons programs and to its attempts to acquire a nuclear capability. UN Resolution 1441 declared the Security Council’s conviction that the time for such obstruction was past, and that the Iraqi regime must demonstrate its disarmament or be forcibly disarmed.
Dr. Hans Blix, in his January 27 report to the Security Council, made clear that Iraq was not cooperating with the inspectors, whose task was not (the world media notwithstanding) to find a smoking gun but to verify that Iraq had disarmed itself of weapons of mass destruction. The assumption of 1441 was that Iraq has had and continues to possess such weapons, not for purposes of deterrence but for aggression. This is the context in which the prudential judgment about last resort must be made—to repeat, by those who have responsibility for the common good.
A further issue has come to the fore since I wrote “Moral Clarity in a Time of War,” and several of my correspondents allude to it, directly or indirectly: the question of legitimate authority. Numerous religious leaders around the world have asserted that the UN, which in practice means the Security Council, is the only authority capable of legitimating the use of proportionate and discriminate armed force. The moral logic of this is not, to put it mildly, self-evident. At present, three of the veto-holding powers on the Security Council—France, Russia, and China—conduct their foreign policy according to the bluntest Realpolitik calculus (a calculus which led France and Russia to help undermine the containment of Iraq in the late 1990s for commercial reasons). How their judgment, based on those calculations of raw national interest, constitutes a moral legitimacy that trumps all others is not an easy case to make. Security Council authorization of armed force to disarm Iraq (or respond effectively to the threat posed by the terrorist networks) may be politically desirable for a variety of reasons, including support for the possibility that the UN might someday evolve into a genuine international security system. But how can such authorization possibly constitute an essential moral warrant now, given the amorality that informs the decision-making of three of the key members of the Security Council?
Ends and means are an old argument. It seems to me that my meaning in the essay was reasonably clear: a good end does not justify any means, but unless there is a morally worthy and achievable political end that informs the use of armed force, war is simply wickedness. The entire burden of the just war tradition in its two component parts—the ius ad bellum and the ius in bello—is to link proportionate and discriminate means to morally worthy ends, even in the limit case of war. Surely this is beyond dispute.
The relationship of one’s personal spiritual disposition to the pursuit of the peace of tranquillitas ordinis is addressed in the just war tradition’s ad bellum criterion of right intention. To recognize that the peace of a right relationship with God (which includes personal moral development) cannot be accomplished by politics is not to divorce politics from morality; it is to recognize the distinctiveness of social ethics and the limits of the political. Absent an effective international legal and political authority capable of responding to grave threats to the peace (as the UN was unable to respond in the Balkans and Rwanda, and as has been manifestly the case in the UN’s record in enforcing its demands for Iraqi disarmament), it will be the responsibility of states, or coalitions of states, to prevent aggression and to respond to it when it occurs. The cause of genuine world order is not advanced by pretending that things are otherwise, or by suggesting that states willing to take up the burden of responsibility are primarily interested in world domination. A UN in which Iraq is scheduled to chair a May-June disarmament conference, a UN which elects Libya the chair of its Human Rights Commission, is a UN in desperate need of radical reform, not of protestations about its allegedly superior moral authority.
Moreover, and on a related point of moral principle, the Catholic Church has never recognized state sovereignty as absolute, and neither does international law. The Church insists on the libertas ecclesiae, and international human rights law makes it clear that states are not immune from scrutiny and sanction in matters relating to their internal affairs.
That U.S. policy in the Middle East has been less than entirely satisfactory over the past fifty years is obvious to everyone—including, I expect, the Bush Administration. But do those failures preclude more effective policy now? Fouad Ajami, in a brilliant essay in the January/February 2003 Foreign Affairs, suggests not—and surely the prudential judgment of this distinguished scholar of the Arab world, of which he is a native, carries a certain weight of credibility. Are those past failures a moral impediment to the use of armed force against an aggressor state now? In that case Stanley Baldwin’s and Neville Chamberlain’s misreadings of Hitler should have rendered Winston Churchill’s leadership morally suspect.
Very little clarity, moral or otherwise, is gained by the habit into which many have fallen in recent months, namely, of referring to the use of armed force against the Iraqi regime as a preventive war, or an act of preemption. As indicated above, the conflict with Iraq dates back to the Gulf War and its aftermath: a war sanctioned by the international community and followed by explicit requirements for disarmament, also sanctioned by the international community. The use of armed force against Iraq, to give effect to those requirements when other means have quite clearly failed, is an act within that continuum of events, and cannot be properly described as a preventive war or an act of preemption—terms which seem to imply that the continuum does not exist or is of no relevance to moral analysis and prudential judgment.
Finally, a word about the public statements of officials of the Holy See. The Pope speaks, as all popes speak, in a number of registers: magisterial, doctrinal-theological, pastoral, prophetic. To conflate those several papal voices into equivalent acts of the papal magisterium with equally binding authority on the consciences of Catholics is to make an elementary mistake in ecclesiology. The Pope doesn’t make that mistake, and neither should those attempting to parse his statements as authoritative and binding magisterial support for their own prudential judgments about the appropriate response to the Saddam Hussein regime. Neither is it appropriate to suggest that the prudential judgments of lower officials of the Holy See (about, for example, the likely effect in Middle East politics of a U.S.-led armed intervention in Iraq to enforce its disarmament) constitute an exercise of the papal magisterium. Such statements are to be carefully considered as the prudential judgments of experienced churchmen. They are not more than that, and they cannot be more than that. As for those statements by officials of the Holy See that touch on questions of applying moral principle to immediate circumstances, they too are to be respectfully heard and considered in light of the Catechism’s teaching, referenced above, on where the charism of responsibility finally rests.
To suggest, as some correspondents do, that to propose different understandings of the prudential circumstances, or different applications of the agreed-upon principles, constitutes an act of dissent is to engage in polemics, not theology. War is a terrible thing; as John Courtney Murray was wont to note, the just war tradition tries to bring reason to bear on a human activity, war, that always contains elements of the irrational—and that is, as the Pope has noted, a defeat for the forces of reason in human affairs. But there are moments when moral duty requires the use of proportionate and discriminate armed force to redress injustice, defend freedom, prevent the forces of unreason from having unfettered sway in international public life—and thereby serve the cause of peace. That duty falls on particular states at particular moments in history. It is not hubris, but Christian realism reading the signs of the times, to recognize that the United States bears a particular weight of responsibility for advancing the cause of a world no longer in thrall to forces that deliberately undermine the minimum conditions of world order.
That our nation has conducted its debate about the war against terrorism in explicitly just war categories tells us something encouraging about the people and culture of the United States. That so many religious leaders have forgotten key elements of the just war tradition, and misconceived their own role in the public debate, points out yet another arena in which the Church is in need of authentic and deep-reaching reform.
The Responsible Self
John E. Coons offers “A Grammar of the Self” (January) in response to a perceived challenge to traditional conceptions of the “self” by the materialist “Rad-cons,” and, moreover, to make his case intelligible to all parties, he argues for a common language within which the contending parties may discuss the issues. To say that Professor Coons’ project is ambitious is an understatement.
Alasdair MacIntyre’s After Virtue addresses both issues in depth, and offers an analysis of the Enlightenment’s failure to provide an enduring rational basis for ethics. With the concession that After Virtue is a book, not an article, I find MacIntyre’s analysis, as well as his prescription for repair, more persuasive and less strained than that offered by Prof. Coons.
Prof. Coons constructs an analysis based upon the relation between a “First Good” and “Second Goods.” The First Good is the individual’s inchoate capacity to will to exercise the will in pursuit of specific goods (Second Goods), in other words, a personal commitment to submit to a rational ethical calculus. Prof. Coons’ analysis presumes an ethical universe that we can know personally and in the abstract and that has personal relevance for the individual. Prof. Coons indulges these presumptions further when he invokes the “call of responsibility” as the “ground of self.”
Prof. Coons thus defines the self as the capacity of a personal will to respond to the “call of responsibility.” This analysis is an echo of the pagan description of the self: “Sin is ignorance, and to know the good is to do the good.” The interval between the knowing and the doing is connected by the mystical concept of the “will,” which is motivated by the equally mystical concept of the “call of responsibility.”
Kierkegaard, a more insightful existential phenomenologist than Prof. Coons, acknowledged the interval between the knowing and the doing, and concluded that the human will is gripped in a subjectivity not amenable to objective analysis, and therefore concluded that “truth is subjectivity.” Unlike Prof. Coons, Kierkegaard also did not presume an ethical awareness, and therefore placed emphasis on the initial Either/Or—either one chooses to experience the world in ethical terms or one does not, the consequence of failure at this point being existential despair. Kierkegaard placed this initial choice within the realm of human freedom, while Prof. Coons casts it as an unavoidable, enduring obligation (thereby avoiding the vagaries and mysteries of human freedom).
Prof. Coons merely bypasses the watershed of the primordial Either/Or and assumes all people have an ethical awareness: “The specific act that self-perfects—that secures the First Good—is the choice of the Second Good as the reason for specific behavior.” This assertion is a tautology and presumes an ethical awareness. Or, alternatively, there is no “self” until one makes this choice: “Note that the capacity of the self does not will the performance of specific behaviors. What it wills is a subordination to (or defiance of) one’s sovereign obligation to seek and attempt the Second Good.” This assertion presupposes not only the awareness of an ethical universe (Second Goods), but also that such an ethical universe has valid claims upon the individual. Neither of these presuppositions is self-evident. This is not Kierkegaard’s argument, for obvious reasons, for until one apprehends “one’s sovereign obligation,” the “Second Goods” may not appear as good at all, nor may anything in the world appear as a “good,” for the initial distinction between good and evil has yet to enter into an individual existence with any personal relevance.
MacIntyre disputes both the inevitability of the ethical Either/Or (and, by implication, Prof. Coons’ very definition of a “self,” the “sovereign obligation”), and Kierkegaard’s assumption that an individual in the grip of the apprehension would either prefer or choose the good (thus, MacIntyre would grant that an authentic self could choose to be a “Rad-con,” something that Kierkegaard and Prof. Coons would not grant). MacIntyre calls Kierkegaard’s leap into the ethical (and Prof. Coons’ assumption of a “sovereign obligation”) a “criterionless choice,” a choice for which there is no good reason. There has been much debate about this characterization of Kierkegaard as an irrationalist, but Kierkegaard’s position (a position required by the failings of Kant, as aptly pointed out by Prof. Coons), even if irrational, seems preferable to Prof. Coons’ mystical approach, which requires an individual to apprehend the demands and personal claims of an ethical life before one even apprehends the world in ethical terms (or, in Prof. Coons’ terms, one must be a “self” before one makes the decision to be a “self”).
Prof. Coons further asserts that “what is quite impossible to imagine is the self inviting itself.” By this sentence he contradicts the one Christian doctrine that may be empirically verified: the Fall of Man and original sin. Moreover, Prof. Coons’ remarkable assertion raises the question of whether he has ever read Nietzsche, who wrote hundreds of pages asserting not only that a self may invite itself, but that it must, and in doing so must also write the terms of the invitation.
But Prof. Coons ignores Nietzsche, who apprehended the primordial choice (the invitation responsibility), but responded that, once the choice is apprehended, human reason provides no useful guidance to distinguish between good and evil (in other words, Prof. Coons’ Second Goods are essentially just arbitrary preferences, and hence the First Good is nothing more than a seductive illusion, for it provides nothing of any value or relevance; one is, in the end, merely thrown upon one’s own devices). Thus, following Nietzsche, one can view the Rad-cons, not as sprouting from the supposedly rational behavioral or experimental sciences, as Prof. Coons does, but rather as disciples of Nietzsche who merely employ the language of “science” to express this underlying philosophical position.
MacIntyre sees Nietzsche as the primary challenge to Kant and the failings of an ethics based upon human reason, and brings forth Aristotle in response. Prof. Coons stands in opposition to Aristotle, claiming rather alarmingly that we may “eliminate the relevance of human memory to our question,” and “the responsible self requires no memory at all beyond its recognition of the imperative to seek the content of correct conduct (the Second Good).” At this point, Prof. Coons is attempting to outflank the Rad-cons by eviscerating their conception of the “self” as merely the memories of an organism as it travels through life. He assumes that a narrativeless, disconnected individual could apprehend or take an interest in “Second Goods.” Again, he manufactures a “self” out of nothing (Sartre would be proud). But this conclusion is inevitable given Prof. Coons’ earlier assumption that each individual fully apprehends the “sovereign obligation” (that is, the primordial Either/Or) and has a nicely developed human will that employs sweet reason to connect that will with desirable goods.
So, as I understand Prof. Coons, we may dispense with culture, tradition, and family, and merely invent ourselves in any given circumstance, fueled by the First Good which in turn is rationalized by the self-evident rosy prospects of Second Goods. This sounds very much like watered-down paganism (one decides to do good because the good is obvious and anything that is “good” is also desirable to the will), decorated with language derived from the Greeks, Augustine, Aquinas, and Kant. This analysis ignores three obvious hindrances: 1) the fact that the “good” is not always immediately obvious or profitable; 2) the distortion of human will and reason by sin; and 3) the enduring attraction of evil.
Both MacIntyre and Kierkegaard emphasize the importance of memory, both cultural and familial. Kierkegaard invokes the concept of repentance as crucial to taking ownership of one’s self. For Kierkegaard, repentance is more than acknowledgement of one’s past, of merely saying “I’m sorry for what I did and I won’t do it again”; rather, it is taking full ownership of one’s past, which includes certain necessities for which one may not be responsible, including one’s parents, family, geography, culture, nation, and time. Contrary to Prof. Coons, Kierkegaard (and, I assume, MacIntyre) does not believe that an amnesiac can be a fully functioning ethical being.
Even worse (at least for a Christian), Prof. Coons asserts that “the self is that power . . . to commit freely to seek and . . . attempt whatever would be truly right under the circumstances. It is in the exercise of this option to seek that each of us realizes or forfeits his or her own self-perfection (First Good).” Prof. Coons assumes that, once we know what is “truly right under the circumstances,” we have the “power” to commit to do it. (Do I hear St. Paul rolling in his grave?) Socrates, like any pagan, could not have said it any better. But, of course, we do not have such power, nor do we know very often what is “truly right under the circumstances,” and hence Christianity provides a much better description of personal reality than that offered by Prof. Coons. In his universe, both revelation and the grace of God are unnecessary.
Prof. Coons has undertaken an Olympian project. On the one hand, he has to deal with Kierkegaard, Nietzsche, and MacIntyre in explicating either the desirability of or the necessity for an Either/Or (his First Good, the “sovereign obligation” to seek Second Goods). In other words, he must make the case (beyond mere assertion) for an ethical universe subject to rational apprehension, the proposition that such an ethical universe has either abstract or personal authority, and that it has claims upon and personal relevance for any specific individual. Until he successfully negotiates that project, he has no useful definition of a “self,” since he defines the “self” as a will in relation to the ethical. And until he has a useful definition of a “self,” he has nothing to say in response to the perceived challenge posed by the Rad-cons, who are nothing more than Nietzscheans in modern dress, and who have already answered all of these questions in ways quite different from Prof. Coons.
Mark T. Dykstra
Sarasota, Florida
John E. Coons offers a congenial analysis and resolution of the often-vexing modern and postmodern commentary regarding selfhood. One yearns to embrace his view. But I wonder if Professor Coons does not in fact beg the central issue, viz., the status (veracity) of what for him is the primordial experience—“responsibility” (or “invitation”).
The status of commonsense experience is perhaps the fundamental question of our era. On this matter Prof. Coons appears more dogmatic than reasonable. Granted, he logically dismantles the reductionist accounts of the experience of responsibility offered by positivism and behaviorism. But this service falls short of establishing the veracity and authority of that experience. What is lacking is a positive demonstration, or argument. One wonders whether, to remedy this omission, Prof. Coons endorses the following statement: any attempt to question the authority of common sense (specifically, the experience of responsibility) is itself an act of responsibility; hence, any denial that the self is at heart the experience of responsibility is an instance of performative contradiction; and, therefore, the self stands as Prof. Coons describes it. If not, what alternative does he offer for his foundation?
Jon M. Fennell
Naperville, Illinois
Matthew F. Rose’s review essay on Colin McGinn’s intellectual autobiography is marred by a number of claims about “analytical philosophy” that are misleading, ill-informed, and offensive (“The Disconsolate Philosopher,” January). Chroniclers of the movement caution that analytical philosophy is not best identified with any specific doctrine or issue. However, Mr. Rose thinks that “the basic . . . analytical question” is whether the world’s ordering is just in our minds, ideal rather than real. To be sure, many analytical philosophers, like most philosophers since Kant, have treated this question. Still, it is worth noting that G. E. Moore, usually regarded as one of the founders of the analytical movement, devoted several major essays to arguing against idealism, not for it.
Mr. Rose sometimes talks as if we would do better not to argue or even entertain such questions, which he thinks “simply could not have occurred” to early Christians (what does Mr. Rose make, one wonders, of the philosophical skepticism that enthralled the young Augustine?), but, more sensibly if not consistently, he also endorses what he calls the “‘Let’s-Not-Be-Crazy’ objection” to idealism. To be sure, that last is good advice, but why think the early analysts disagreed?
Similarly, Mr. Rose imagines that analytical philosophers “belie[ve] that ideas do not . . . really exist, at least [not as we] . . . think.” Again, some analytical philosophers did deny ideas’ existence. (Think of mid-twentieth-century reductionist behaviorists and late-century eliminative materialists.) Nevertheless, most analytical philosophers were roughly within the empiricist camp (W. V. O. Quine’s criticism of what he called empiricist “dogmas” were meant to reform the movement, not repudiate it), and if we call the contents of experience “ideas” (as many still do), it makes little sense to endorse empiricism while disowning ideas.
Mr. Rose’s own claims could profit from analytical rigor. He claims, for example, that, pace the analytical philosophers, to be meaningful language needs to be “intrinsically christic, . . . liturgical, and doxological.” Maybe he can make good on these aperçus; maybe he can even understand them. To explain them to the rest of us, though, he’ll need the clear exposition, rigorous argument (sometimes including technical logic and syntax), narrow focus, and commitment to accuracy over edification that many take as largely definitive of the analytical philosophy Mr. Rose decries.
Mr. Rose would like the test of a philosophical position to be “how it gets about. . . . Does it give you a reason to get out of bed? Can you take it places?” He thinks this follows from the truism that philosophy is made for humans, and it seems to be on that basis that he sneers that it takes “alchemy” to make “the stuff of logic and linguistics into an intellectual life well lived.” However, as the subtlest medieval philosopher-theologians knew, understanding often requires narrow inquiries, some measure of patience with the unexciting, and emotional detachment. The “legs” a philosophical “idea” chiefly needs are not those Mr. Rose envisages but the ability to remain “standing” under careful dissection of its clearest formulations and logical argumentation. Those, of course, are the qualities and techniques best developed and most valued within the philosophy that proceeds by logical and linguistic analysis.
That philosophy is made for (and by) people no more yields Mr. Rose’s folksy, homespun criteria for the eligibility of philosophical beliefs than does the fact that it is people who make calculus or organic chemistry show that we should form our beliefs in those fields by seeing what “places” we can “take” their hypotheses. There is more to (intellectual) life than logic and linguistics, of course, as there is more than chemistry and calculus, and more than Patristics and divinity school. That hardly shows that a career devoted chiefly to one or another of these can only be part of an intellectual life ill lived.
Mr. Rose condescendingly allows that the analytical philosophy of religion developed by Alvin Plantinga, Richard Swinburne, and others associated with the Society of Christian Philosophers “has won them praise in many quarters.” He prefers the narrative theology of Hans Frei and George Lindbeck. I’ll leave it for others to judge the merit of these theological developments. What is obvious is that they are not competitors with analytical philosophy, not even with analytical philosophy of religion. Moreover, this is not a zero-sum game, where valuing the theologians requires disparaging the philosophers. Christian analytical philosophers are scorned by the obtuse for their abstruseness and abstraction, derided for their technical vocabulary, and accused of “scholasticism.” While ignorant and unjust, such charges are, in a way, fitting. For the same complaints were (and still are) leveled at all the great thinkers, not just ancient and modern, but also those in between.
Some of my friends and colleagues find insight in recent writers who have eschewed the analytic philosophers’ commitments. On rare occasions, I have glimpsed insights there as well, especially in Emmanuel Levinas and Edmund Husserl. Those facts notwithstanding, it is only a slight exaggeration to say that—construing “analytical philosophy” broadly, as demarcated by its clarity, rigor, and willingness dispassionately to elaborate dry and even technical analyses and arguments—all the best philosophical writing of the century just ended could be considered “analytical.” In logic and language, yes, but also on God and religious faith, and, significantly, including Jacques Maritain’s and Ralph McInerny’s most important work on Aquinas, Alexius Meinong’s and Max Scheler’s on value and emotion, K. Anthony Appiah’s on race and racism, and much else. Your readers are ill served if Mr. Rose leads them to ignore this work and, perhaps worse, to expect things to be different in the century just begun.
J. L. A. Garcia
Cambridge, Massachusetts
Matthew F. Rose replies:
My concern, as any attentive reading of my review essay would reveal, was not with analytical philosophy simpliciter, but as it shaped and, I believe, distorted Colin McGinn’s intellectual career through philosophy of language and mind. I faulted Mr. McGinn not for being an analyst, but instead for what I believed to be a lack of proportion and humanness in a philosophical life, and for the high-handedness and insularity that can follow from an unbalanced philosophical mind. I am grateful to Professor Garcia for helping to alert us again to these dangers.
Vastly more important than Prof. Garcia’s defense of the analytical tradition (much of which I find unobjectionable) is his ridiculing as “folksy” my suggestion that Christians, as a general rule, should affirm the findings of philosophy as much as is in keeping with the basic claims and practices of Christology and doxology. My interpretation was guided by the “rule of charity” crafted by early exegetes such as Origen and Augustine: an interpretation of any text or philosophy that cannot lend itself to the increase of love of God and neighbor is not a true one. It is the same rule that guided Cyril in his treatment of Plato, Ambrose with Seneca, Ricci with Confucius, and will continue to serve Christians in the century to come, long after Prof. Garcia has digested Appiah’s lessons on race.
That this loose, indeed gracious, philosophical rule should be so deeply unfashionable and controversial to Prof. Garcia speaks volumes, in my opinion, about the misguided nature of much contemporary Christian philosophy and apologetic. Does Prof. Garcia mean to suggest that Christian reflection must first meet non-Christian epistemological criteria before it can undertake its task? Must theology first win permission from secular standards of what counts as reasonable? (If so, I fear Prof. Garcia must be counted among the “cultured despisers.”) The trinitarian and ecclesial criterion of truth that Prof. Garcia mocks as “homespun” is nothing more than the belief that for Christians all metaphysical validation depends, in the end, on the redemption of our humanity in the community which proclaims Christ as Lord. As Augustine wrote of Christ and his Church in one of his greatest “analytical” flourishes: “I am in all languages. Greek is mine, Syrian is mine, the languages of all people are mine; for I am the unity of all peoples.”
An Unfair Review?
Joshua Mitchell’s disparaging review of Michael Zuckert’s fine book Launching Liberalism: On Lockean Political Philosophy (January) does a serious disservice to readers of First Things. Professor Mitchell arbitrarily dismisses the possibility that Zuckert can uncover “a single, unified Lockean political philosophy,” on the ground that “most scholars remain unconvinced” by the claim. Similarly, he rejects Zuckert’s demonstration of the fundamental opposition between Locke’s teaching and the biblical one because “most scholars now believe that Locke was a nominal Christian of some sort.” To refute a book like Zuckert’s, which sets out in part to challenge a scholarly “consensus,” it hardly suffices to cite the mere fact of that consensus.
Nor might the unwitting reader of Prof. Mitchell’s review realize that Zuckert responds (in his closely reasoned essay on “Locke and the Problem of Civil Religion”) to Mitchell’s query of “why else” if he were not a believing Christian Locke would devote his last years to composing such books as The Reasonableness of Christianity and Paraphrase and Notes on the Epistles of St. Paul. As Zuckert explains, Locke endeavors in these works to reinterpret Christianity so as to harmonize it with his liberal teaching, albeit at the cost (Zuckert argues) of ultimately undermining the religious attitude itself. Nor, finally, does Zuckert’s suggestion of the absurdity of Locke’s representing the otherwise obscure Sir Robert Filmer’s patriarchalism as the only alternative to consent-based government indicate “baffle[ment]” on Zuckert’s part. Locke himself initially disparages Filmer’s book, and (as Zuckert demonstrates) under the guise of refuting Filmer in fact takes on the far meatier (but riskier) enterprise of challenging the biblical understanding of humanity.
Whether Zuckert’s argument is correct or not, it behooves a reviewer to engage the argument rather than dismiss it on the basis of his own premises or a supposed scholarly consensus. Needless to say, Prof. Mitchell offers no evidence to support his claim that Locke—whose library itself attests to his broad learning in classical and modern philosophy—“assumed that . . . the biblical historical horizon was the only justifiable point of departure for reflection on matters political.” Ultimately, Prof. Mitchell takes Locke no more seriously than he does Zuckert, preferring to confine him within a “range of categories and understandings” that only a modern scholar like Mitchell (rather than Locke himself) is capable of grasping.
Nor would one ever realize from Prof. Mitchell’s account that Locke himself calls attention (e.g., in his First Treatise) to the need to “sweeten” a harsh political teaching so as to accommodate the prejudices of vulgar readers. In other words, the notion that Locke might have veiled the extent of his unbelief is hardly an invention of “Straussians.” But for Prof. Mitchell there’s no reason to believe that Locke “rejected and subverted” Christianity in a surreptitious manner because he never “deign[ed] to announce it”—which would seem to mean (contrary to his own acknowledgment that the fact of esoteric writing by some political thinkers “is beyond question”) that there is never a ground for attributing an esoteric teaching to any writer. (Why write esoterically if one is obliged openly to “announce” the point of one’s esotericism?)
Launching Liberalism is a major contribution to the understanding of Locke and of the foundations of liberal modernity. Those who care about such matters should read it for themselves rather than rely on Prof. Mitchell’s unfortunate caricature of it.
David Schaefer
Professor of Political Science
Holy Cross College
Worcester, Massachusetts
Joshua Mitchell’s review of Michael Zuckert’s recent collection of essays devoted to John Locke, Launching Liberalism: On Lockean Political Philosophy, in my judgment unfortunately failed to do even minimal justice to this fine book and its author. In a long (by First Things’ standards) review, we are not nearly adequately told the full contents, the main themes and theses, much less the main evidence and arguments, of Zuckert’s work. Instead we are presented a straw-man Straussian, a willful (mis)reader of Locke, who pigeonholes Locke into a preformed set of grandiose (and highly dubious) generalities concerning Judaism, Christianity, modernity, and philosophers. In order to render some justice to Zuckert and for the sake of the curious reader who otherwise might miss out on an intellectual treat, let me report a few relevant facts that Professor Mitchell’s review omitted.
Zuckert has been working on Locke and liberalism for well over twenty-five years. He has produced a wide-ranging, but remarkably focused and impressive body of work dealing with these matters, including two previous well-received books, Natural Rights and the New Republicanism (1994) and The Natural Rights Republic (1996). His recent book takes its place within this corpus and expressly refers to it. At the service of this scholarship, he deploys remarkable philosophical, and as need be theological, learning, sensitivity, and acumen.
In this work, the issue of “Lockean hermeneutics” has been a central concern. Part One of Launching Liberalism, for example, examines Locke’s own discussions of kinds of “discourse” and ways of “writing,” and a wide range of Locke scholarship, both within and especially without “the Straussian fold,” dealing with these issues. He takes both Locke and those who purport to expound him with genuine intellectual seriousness. He comes, at the very least, to reasoned conclusions carefully drawn and put, which to my knowledge have yet to be refuted, least of all by Prof. Mitchell. Reading Prof. Mitchell’s review, one would have no idea of just how scrupulous Zuckert is in his scholarship. From Prof. Mitchell, we never receive even a hint of the ample and varied evidence Zuckert points to and the careful inferences he makes to come to his conclusion (not “presupposition,” as Mitchell would have it) that Locke wrote in a manner to conceal somewhat his deepest and fullest thought.
Locke, it is admitted on all sides, concerned himself mightily with (in the Spinozistic formulation) the “theological-political” problem, the great question of whether biblical faith or philosophical reason should ultimately guide men’s common (and individual) lives. Now Zuckert, in addition to writing on, and as a means to understanding, Locke’s scriptural exegesis (of both Hebrew Scripture and the New Testament), has written extensively on Protestant scriptural politics. In his two earlier books, Zuckert carefully surveyed a great range of Protestant theological-political thinkers, from the patriarchs Luther and Calvin on the Continent to John Milton and others in England, from American Puritans to their eighteenth-century successors, the New England divines. It is simply wrong to maintain that Zuckert has generic, undifferentiated notions of the relevant Scriptures and scriptural religions, or to imply that he is ignorant of their traditional, authoritative interpreters (and the latters’ conflicts). Part Two of Launching Liberalism represents, admittedly inadequately, these extensive researches with three entries, one devoted to “Locke and the Old Testament,” another to “Locke on Christianity,” and, given Catholicism’s relatively greater reliance on reason and natural norms in establishing political fundamentals, another to “Aquinas, Hobbes, and Locke on Natural Rights.”
The last confrontation takes us to the core of Zuckert’s Locke-interpretation. Zuckert’s Locke is a modern natural rights thinker. As such he broke, wittingly, with the premodern scriptural and Aristotelian traditions, as well as Reform theology, and he followed in the footsteps of Descartes and Hobbes. This was Leo Strauss’ view, but it is held by others (including informed readers in Locke’s own day) and is not uniquely “Straussian.”
What distinguishes Zuckert’s Locke is how thoroughly he thought through Cartesian-Hobbesian epistemological and anthropological principles to come to a view of man as self-owner. Modern reason does not, and cannot, find evidence in nature and history to credit the biblical account of God’s providential care for humankind. Left on his own in an indifferent, hostile universe, Zuckert’s Locke thought through the character of that strange, bereft being, man. Because of his admittedly mysterious capacity of “self-consciousness,” he “owns” himself—after all, one’s thoughts and volitions, one’s pleasures and pains, and hopes and fears, are “one’s own”—and he has the ability, and hence the responsibility, to “create” himself, to adopt rational goals and appropriate means, and to pursue them in tandem with others or by himself. Of this central Lockean teaching and Zuckert’s meticulous and illuminating discussions of it, we hear not one word from Prof. Mitchell. Since it is the single most important philosophical, political, and theological position and argument pursued in Zuckert’s book, it is a scandal not to have it brought to the reader’s consideration.
Paul Seaton
Fordham University
Bronx, New York
Joshua Mitchell replies:
I repeat what I said in my review: “Launching Liberalism is unlikely to convince any who are not persuaded by the suppositions on which Zuckert bases his analysis.” I can only thank Professor Schaefer and Mr. Seaton for making the point more forcefully than I, an outsider to the Straussian world, could have possibly made without their assistance.
A word, first, about what my review intended to accomplish and to whom it was addressed. Readers of First Things are less interested in arcane debates within the field of political philosophy than We Scholars (Nietzsche’s phrase) are. For such arcane debates we have any number of widely read journals. FT is a different sort of venue, whose readers are interested in broad issues of belief, citizenship, and the public forum within which such issues can be considered. The first task of a reviewer in such a venue, I assume, is to establish the intellectual tradition to which the book under consideration is indebted, assess its strengths and drawbacks, and indicate to what it is responding, etc. Since Michael Zuckert himself sought to defend—indeed, to revitalize—a trajectory of thought that has emerged out of the teaching and writing of Leo Strauss, it seemed fitting to provide readers of FT with a candid assessment of that tradition, of the historical problem it sought to address, and of the respect in which Zuckert’s project accords with that tradition.
My criticism of Launching Liberalism stems from what I take to be a grave error, largely endemic to the Straussian tradition, though in varying degrees, but certainly central to Zuckert’s book, viz., that of not only trying to avert the peril of historicism by recourse to authorial intent, but by asserting that authorial intent can be known through an esoteric reading of the canonical writer in question, in this case, Locke. Such an assertion, I claimed, presupposes the existence of such unities as “Christianity,” “Judaism,” etc., on the basis of which the locutional asymmetries between the author’s writings about these supposed unities and the essence of these unities themselves purport to provide the key to deciphering the author’s intention. My critics are in a roil about my treatment of Launching Liberalism, but take away their indignation and ask whether they have in any way addressed the central claim of my review. About this they have nothing to say. And they have nothing to say because they, too, share the presuppositions of which I am dubious.
There are other ways to address the dilemmas posed by historicism; and I am in an odd position criticizing Zuckert, and even my critics, when in many respects I share their dubiety about where we find ourselves at the beginning of the twenty-first century. But, as readers of FT will surely appreciate, I think it much more promising to attend to canonical writers with a view to understanding the reality toward which their words actually point rather than involve ourselves with textual acrobatics of the sort that concern those who are interested in parsing out authorial intention. Regardless of the ethical concerns that may animate such a project, in the final analysis Straussianism becomes just another brand of postmodern “text-play” if the meaning of its most important insight—namely, the difficult relationship between text and truth—is degraded to the point where the text is all that matters.
A Note on Arthur Peacocke
Regarding the review by Edward T. Oakes of Robert Pennock’s book Intelligent Design Creationism and Its Critics: Philosophical, Theological, and Scientific Perspectives (Briefly Noted, January), I found myself puzzled by this statement: “[I]n the reconcilers’ camp, embarrassments abound, as in Arthur Peacocke’s insouciant discernment of divinity in Darwinian ‘process.’”
It seems to me that Peacocke’s position is just such as we should expect from a science-theism “reconciler.” Why it might be embarrassing or “insouciant,” I can’t fathom, unless Father Oakes dismisses the possibility of God’s immanence and continuing creative activity in the world. That the process of change should itself be the general instrument of Divine Providence offers no threat—that I can see—to belief in a Creator God. Peacocke makes clear, in Paths from Science to God (2001), that he is not making a case for pantheism: “These processes are themselves God’s action [and] are unraveled and revealed by the sciences: they are not themselves God . . . but are in themselves God’s creative activity.”
Harry Hogan
Washington, D.C.
Edward T. Oakes replies:
When facing the challenge of Darwinian naturalism, three mistakes must be avoided. First, one should not directly challenge the fact of evolution (in the proper sense of that word, meaning “descent with modification”), since genetics has now verified the evolutionary hypothesis. For that reason, creation “science” is a total nonstarter. Second, one should not seek to refute the (admittedly improper) extrapolations of evolutionary theory in the work of such Darwinian bulldogs as Richard Dawkins and Daniel Dennett by using the same tiresome and jejune positivism they use, for then the argument descends to fossil dating or how flagella got attached to bacteria and the like. This is the mistake of the advocates of Intelligent Design. The third and final error is to challenge such shopworn positivism using a metaphysics of wishful thinking. Such is the error that the Jesuit paleontologist Pierre Teilhard de Chardin blundered into when he relied on the (largely unacknowledged) Bergsonian idea of élan vital. And such too, in my opinion, is the fatal weakness of the work of Arthur Peacocke. Although his theory does not seem so reliant on Bergson as does Teilhard’s, the result is the same: a string of quite vapid and utterly unverifiable asseverations on the workings of some Spirit God hovering over the whole affair of evolution. (Mr. Hogan’s quote from the Peacocke oeuvre perfectly captures the tone of this kind of rhetorical theism.)
The only way out of this problem is a proper and irrefutable metaphysics, one thoughtfully provided by St. Thomas Aquinas with his logical axiom of posse sequitur esse, which literally means “possibility follows being” but which can perhaps be more usefully paraphrased as “if something exists, it must be possible for it to exist.” Seemingly noncontroversial, indeed tautological, the principle can refute what is false in naturalism: because Homo sapiens emerged from the process of evolution, the universe always had the potential, even from the first moment of the Big Bang, for bringing man forth. And with the additional doctrine of creation (easily defendable on other grounds, since the universe can hardly account for itself), we know that God created the world both with the potential for, and with the actuality of, human life, since we are here.
Yes, there is a Providence (Mr. Hogan has no quarrel with me there). As Jesus teaches, each hair on our heads is counted, and not a sparrow falls but that God knows it. Fortunately, Our Lord did not then go on to explain how God goes about making hair grow or sparrows fall from the sky. For those who need to know such things, they are there to be explored—and, with the right gifts of scientific training and intelligence, even to be explained. But to eschew such exploration, or to ride piggyback on later scientific explanations born out of that exploratory curiosity, by claiming that a sparrow falls because God makes it to fall is the philosophical error called “occasionalism,” an error that in my opinion lurks behind the airy lucubrations of Teilhard de Chardin and Arthur Peacocke.
Child Abuse and Abortion
Candace C. Crandall’s overview of the failure of legalized abortion to achieve any of its goals is lucid and comprehensive (“Thirty Years of Empty Promises,” January). Although she mentions that the statistics for abuse against children who resulted from “unplanned” pregnancies are not decreasing, and she does note some social stigma being attached to a woman’s history of abortion, she omits one other significant association between child abuse and abortion. It is well known that the most significant risk factor for a woman to abuse her children is for her to have been herself abused as a child. But a little further down on the list of such risk factors is for the woman to have had one or more abortions. In other words, to have had an abortion to decrease the risk for child abuse is to increase the risk for the surviving children to be abused. To desensitize mothers to violence against their children before they are born is to desensitize them to violence against their children after they are born.
Pasquale Accardo, M.D.
Richmond, Virginia
Abortion and the Constitution:
A Discussion Continued
When we use a concept, do we mean to include all individual instances that come fairly within the terms of that concept? Or do we mean to include only those particulars about which we are thinking at the moment we articulate the concept? The former seems to be the view of Nathan Schlueter, for he argues (“Constitutional Persons: An Exchange on Abortion,” January) from evidence that the framers of the Fourteenth Amendment had in mind a concept of “person” encompassing all human beings to the conclusion that since unborn children are human beings, they fall rightly within the protection of that Amendment. Robert Bork seems to take the latter view, arguing that the framers of the Amendment did not specifically have in mind unborn children, so they get no protection even conceding their humanity. (The framers did not have “Robert Bork” specifically in mind either, one might point out.)
While it is possible for us to be ruled either by concepts themselves (Schlueter) or by miscellaneous particulars (Bork), the former stance founds human community on reason, the latter on arbitrary will—as Humpty Dumpty explained to Alice. The first seems to me immensely preferable, although I would agree with Judge Bork that it is better to be ruled by the historically fixed particulars envisioned by eighteenth-century framers than by the changing whims of a contemporary court.
Professor Schlueter, however, misses one strong argument that the word “person” in our Constitution is intended to encompass all human beings: our original Constitution referred even to slaves as “persons,” as in the “three-fifths of all other persons” clause found in Article I. Of course, the Constitution did so for the express purpose of singling out such persons for discrimination, under an assumption of black inferiority. But this is precisely the point. In 1787, the word “person” was used in a way that included every human being, even slaves often thought childlike and otherwise inferior. There is no sign that the Fourteenth Amendment used “person” with anything less than the same universality as the original Constitution. Blacks are described as persons despite the fact that they were still thought inferior by many. A concept that included only “fully developed” human beings (“persons in the whole sense,” the status required for constitutional protection according to Justice Harry Blackmun in Roe v. Wade) would not have reached those the Amendment was meant to defend.
Richard Stith
School of Law
Valparaiso University
Valparaiso, Indiana
Nathan Schlueter’s assertion that no Justice of the Supreme Court “has atempted to make, or even respond, in their opinions, to the unborn person interpretation” is simply incorrect. Justice Byron R. White, in his dissenting opinion in Thornburgh v. American College of Obstetricians (1986), wrote the following:
However one answers . . . the legal question whether the fetus is a “person” as that term is used in the Constitution, one must at least recognize, first, that the fetus is an entity that bears in its cells all the genetic information that characterizes a member of the species Homo sapiens, and distinguishes an individual member of that species from all others; and second, that there is no nonarbitrary line separating a fetus from a child, or, indeed, an adult human being.
For White, these observations led him to conclude that the abortion decision was incorrect because it deprived the fetus of his life, and no “person” can be deprived of life without due process of law.
Robert Bork is absolutely correct in classifying Harry Blackmun’s opinion in Roe v. Wade as an example of a Justice putting his personal philosophy ahead of his duty to support the Constitution. Most scholars agree on that point. But a similar charge against Nathan Schlueter is misplaced. The Constitution does use the word “person” in both the Fifth and Fourteenth Amendments, whereas the word “abortion” never appears anywhere in the Constitution.
Judge Bork’s treatment of the Fifth and Fourteenth Amendments, and his analysis of the meaning of the word “person,” which word both those Amendments contain, is sophistry at best.
Bork says that because the Fifth Amendment’s list of prohibitions can apply only to individuals “who have been born,” the word “person” cannot then imply the unborn. That is a non sequitur, since the word “person” is self-contained, and is not defined by the activities so listed. Moreover, the Fourteenth Amendment uses the following phrase: “All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside.” Certainly, any judge may conclude that that Amendment also functions to define the meaning of the word “person” in the Fifth Amendment and, unless one supposes that the Fourteenth Amendment makes personhood, birth, and citizenship simultaneous events, a judge is perfectly free to infer that the events enumerated are sequential: personhood first, birth second, and citizenship third. In the latter case, “person” would then clearly signify the unborn in both Amendments.
The third paragraph of Article VI of the Constitution demands that all federal and state judges “shall be bound by oath or affirmation to support this Constitution.” Please note that there is no requirement in the oath to support the Supreme Court. Beyond cavil, the two obligations are not the same.
Conscientious and conservative judges, both state and federal, should have rebelled against the abortion decision in Roe. To a man, they should have refused to enforce its perfidious holding as the act of an irresponsible and runaway Supreme Court. Such a rebellion would have compromised the Court’s moral authority—of course—and would have brought about the chaos of a constitutional crisis. But the oath such judges take to support the Constitution would have justified the rebellion. And, given the choice between chaos and treachery, the honorable decision is for chaos.
John Manning Regan, Sr.
Rochester, New York
In “Constitutional Persons: An Exchange on Abortion,” Nathan Schlueter correctly observes that recognition of the “personhood” of the unborn child is central to the dispute in Roe v. Wade.
It’s curious that in refusing to recognize the unborn baby’s “personhood,” the United States Supreme Court, always so careful to protect our nation from “an establishment of religion,” established ancient paganism (supported by medieval philosophers’ ignorance of embryology) as the legally recognized foundation for American law.
The Roe decision was based on the primitive pre-scientific concept of biology propounded by Aristotle and accepted by St. Augustine and St. Thomas Aquinas. To these philosophers and to all ancient people, the “seed” is merely a dead “thing,” an “inanimate object,” until God at some point “infuses” into it a soul.
In Footnote 22 of Roe, Justice Harry Blackmun wrote that “Aristotle’s thinking derived from his three-stage theory of life: vegetable, animal, rational. The vegetable state was reached at conception, the animal at ‘animation’ [quickening], and the rational soon after live birth.” Blackmun then emphasized that St. Augustine “made a distinction between embryo inanimatus, not yet endowed with a soul, and embryo animatus [quickened].”
It is important to note that throughout his meandering discussion, Justice Blackmun was fixated on this concept of “quickening,” the moment when a mother first feels her baby move. In fact, in his leisurely stroll through history, Blackmun mentioned “quick” or “quickening” over twenty times. So American constitutional law is based on St. Augustine’s De Origine Animae written sixteen centuries ago.
Under post-Roe American law, unborn babies, having only “the suggestion of personhood,” can be destroyed up to the moment of birth, just as any other inanimate “object” can be destroyed. But the Constitution does protect “persons”—such “persons” as those protected in the Court’s Sierra Club v. Morton decision, written just eight months prior to Roe v. Wade.
In the Court’s Sierra opinion, Justice William Douglas specified who, in American law, can be considered persons:
The ordinary corporation is a ‘person’ for purposes of the adjudicatory process. . . . So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern life. . . . The problem is to make certain that the inanimate objects . . . have spokesmen before they are destroyed. . . . All forms of life will stand before the court—the pileated woodpecker as well as the coyote and bear, the lemmings as well as the trout in the streams.
Under current American constitutional law, swampland and pileated woodpeckers are “persons.” Preborn human babies are not.
Joseph Collison
Pro-Life Director
Diocese of Norwich
Norwich, Connecticut
It would seem that Robert Bork is missing the point entirely regarding the Fourteenth Amendment and the language of the Constitution. The Fourteenth Amendment does not mention blacks or Negroes, yet it was ratified explicitly to redress a grievance against them. According to Judge Bork, were these blacks then nonpersons according to the law prior to the ratification of the Fourteenth Amendment? Or does the law—as text on paper and not something written on our hearts—supplant itself in some sort of progressive morality controlled by the whims of a democracy? Was the Negro a “person” prior to the Fourteenth Amendment or not? Are the unborn “nonpersons” due merely to the fact that they were not addressed in a textually specific manner in the Constitution? Blacks are not specifically mentioned in the Fourteenth Amendment, yet there is no question that they are understood to fall under the umbrella which covers all those considered “people.” The Constitution always included blacks in its definition of a “person” despite the historical practice of slavery to the contrary. Law is not merely rational thought empty of moral reasoning. It is indeed moral reasoning that guides the law and it is moral reasoning that tells us that life, whether unborn, severely retarded, or decrepit, is worthy of protection under the law.
Shawn Smart
Fredricksburg, Virginia
Robert Bork argues that even if the unborn are included in the usage of “person” by the Fifth and Fourteenth amendments, abortions are not forbidden because “abortions are killings by private persons. Without some additional constitutional action, there is no way around this other than to say that what the state fails to forbid, the state affirmatively orders.” Few will deny that this conclusion is untenable, but there is a much simpler justification in the Fourteenth Amendment: “[No State shall] deny to any person within its jurisdiction the equal protection of the laws.” Because every state protects from murder those born, the unborn ought to be equally protected from murder. The state is not held responsible for every individual act, but in areas where the state protects some persons from a type of private injustice, the state must protect all persons from that private injustice.
Considering the matter more broadly, Judge Bork correctly states that “Mr. Schlueter’s solution is to have the Supreme Court declare all abortions violations of the due process clauses, and then have Congress enforce the ruling by legislating under section five of the Fourteenth Amendment.” Judge Bork then argues that even if Professor Schlueter’s constitutional argument is correct, it is irrelevant because its implementation would require a “judicial and social consensus antagonistic to all abortions so broad and intense as hardly to require such drastic action by Congress and the Courts. Roe would be jettisoned and state legislatures would outlaw abortions.” Judge Bork fails to see the possibility that Congress might one day be pro-life at the time some states are not fully pro-life. In that situation, Congress would pass laws protecting the unborn in states that are slow to comply with the new Supreme Court ruling.
Judge Bork sees little hope for the overturn of Roe in the near future, and considers a ruling of the Supreme Court in line with Prof. Schlueter’s reasoning to be even more unlikely. Judge Bork thus concludes that “Schlueter’s argument will never be more than a curiosity.” We may happily concede this fact if it is admitted that the pursuit of the truth is no more than a curiosity. Either way, there is always hope of changing the hearts and minds of Americans by reasoned argument, and by the grace of God.
Josh Cole
Bedford, Indiana
Robert Bork errs in suggesting that “apparently no one, including Lincoln” ever imagined that the pre-Civil War Constitution could be used to ban slavery. But several abolitionists made precisely such an argument, most notably Lysander Spooner (author of the 1845 book The Unconstitutionality of Slavery).
A more significant error is in Judge Bork’s three-part argument: a) the Fourteenth Amendment prohibits only state action; b) “abortions are killings by private persons”; and c) the Constitution therefore says nothing about abortion unless one takes the drastic step of arguing that “what the state fails to forbid, the state affirmatively orders.”
It is this last step that errs. The Fourteenth Amendment does apply to state action, true, but it requires that states provide to all persons the “equal protection” of the laws. While in modern times the term “equal protection” has become synonymous with “equal treatment,” the original word “protection” obviously implies that the states are required to “protect” persons. And when one asks from whom or what people need “protecting,” the answer, all too often, is “each other.”
Which was exactly the case as to blacks in the mid-nineteenth century. The Ku Klux Klan was running rampant, and southern states were refusing to “protect” black persons from violence on the same terms as whites. There is absolutely no question that the framers of the Fourteenth Amendment intended, among other things, to remedy this failure of the states to “protect” black persons from other private citizens. There was no need to show that the southern states were “affirmatively order[ing]” the KKK to harm blacks; it was enough that the states merely failed to “protect” blacks “equally.”
Congress’ intent is also made clear by its actions after ratifying the Fourteenth Amendment in 1868—e.g., the enactment of the Enforcement Act of 1870, then the Ku Klux Klan Act of 1871, and the Civil Rights Act of 1875. All of these laws created civil rights protections against the actions of private individuals. In fact, every member of Congress who voted for the Fourteenth Amendment and was still sitting in Congress in 1871 also voted for the Ku Klux Klan Act.
As Judge Bork will no doubt point out, the Supreme Court took a very different view of the Fourteenth Amendment, striking down the laws to which I have just referred in the 1870s and 1880s. But Judge Bork has never been one to let bad precedent and clearly erroneous interpretation stand in the way of a proper construal of the Constitution’s original meaning and intent—has he?
Stuart Buck
Dallas, Texas
The demise of Roe v. Wade, and the establishment of justice for preborn humans in America, will come from exposing the culprit—legal positivism.
The solution is not political, Antonin Scalia and Robert Bork notwithstanding. Justice Scalia’s position, which says in essence, “I don’t care if abortion is legal or illegal . . . just throw out Roe and let the voters decide the legality of abortion in the democratic process,” constitutes blind adherence to the bogus notion of legal positivism.
For starters on a sound approach, I recommend George Weigel’s article on “Moral Clarity in a Time of War” in the same January 2003 issue as “Constitutional Persons: An Exchange.” He says: “Nothing human takes place outside the realm or beyond the reach of moral reason. Every human action takes place within the purview of moral judgment.” That is true, and neither the current illicit abortion license (said to be constitutional) nor Scalia/Bork’s “Let the voters decide” is a valid exception to Weigel’s dictum.
Like it or not, induced abortion must be gauged by, and ultimately vanquished by, appeals to right reason and objective morality. Justice based upon such norms would comply with God’s moral law. The fact that America is not a theocracy does not exempt us from compliance with objective moral norms.
I am not saying a natural law solution will be easy. The rebuttal will be “Whose natural law?” as Oliver Wendell Holmes retorted. However, such jaundiced taunts should not deter a right reason/morality-based solution. Tearing preborn babies apart can’t be squared with right reason and a civilized rule of law.
Richard J. Traynor
Maine Right to Life
Augusta, Maine
I am a pathologist and have been involved in pro-life activities for several years. Science is quite clear—the life of a human being begins at conception. To argue otherwise is simply unscientific. The real issue surrounding abortion, as is discussed in “Constitutional Persons: An Exchange on Abortion,” is which human beings are persons with rights. This is a frighteningly familiar question. Jesuit priest Robert Spitzer offers a clear answer. Every being of human origin must be considered a person because that is the only objective criterion available. Once exceptions are made, it simply becomes the subjective imposition of the will of the strong over the weak.
I have found First Things’ concept of judicial usurpation of politics most compelling. I am not a lawyer, but would it really be an act of raw judicial power to find that all human beings are persons with constitutional rights? If a state were influenced by Peter Singer and passed a law allowing mothers to kill their children under the age of one year, would Robert Bork claim this is constitutional because the Constitution is silent on the killing of one-year-olds? We all should recoil from the idea that a human being must possess certain attributes in order to qualify as a person—not only for the sake of justice, but also for self-interest. Who knows who’s next?
James E. Brown, Jr., M.D.
Metairie, Louisiana
Nathan Schlueter replies:
Robert Bork’s polemical reply in the January issue to my article defending the unborn person interpretation of the Fourteenth Amendment generates considerable smoke from surprisingly little fire. Having conceded the plausibility of the restoration interpretation, I had expected from so eminent a scholar—for whom I bear considerable respect—a straightforward effort to refute my central arguments, rather than the collection of ad hominems, sloppy metaphors, and incomplete arguments he offers instead. One would think the unborn person interpretation had at least as much plausibility from an originalist perspective as Judge Bork’s defense in another place of the decision in Brown v. Board of Education. In any case, the argument is certainly not “absurd,” having been embraced by a federal district court in Steinberg v. Brown, as well as by several distinguished law school professors, including Charles Rice and Gerard Bradley of the University of Notre Dame Law School. If Judge Bork is correct, he will have to make a much better case than he has thus far.
Judge Bork attempts to score an early point by calling my argument “a curiosity” which is “entirely irrelevant to the future course of the law.” In response I will only say that I would not have expected to find someone who has made—and, in some respects, lost—a career defending judicial integrity advocating expediency as a valid consideration in constitutional interpretation. My primary purpose was not to promote a pro-life strategy. It was to explore a disturbing failure on the part of pro-life scholars and advocates to get things right on the Constitution and abortion. Whether the unborn person interpretation will ever be recognized by the Court, I cannot know any better than Judge Bork, his claim to the contrary. Stranger things have certainly happened.
Although the legal issues in this debate can be quite complex, the dispute boils down to two fundamental questions. First, does the term “person” in the Fourteenth Amendment include all human beings, and therefore unborn children? Second, do the protections of the Fourteenth Amendment extend to private wrongs against persons?
As to the first question, I urge Judge Bork to explain why the term “any person” in the Fourteenth Amendment is expansive enough to include corporations—and, as Mr. Collison trenchantly points out, even swampland and pileated woodpeckers—and yet too narrow to include human beings in the womb. What rational difference between born and unborn human beings justifies the exclusion of the latter from this otherwise expansive legal category?
Judge Bork tries to get around the plain text of the Amendment by flawed textual arguments. The declaration of citizenship in the opening clause of the Fourteenth Amendment is limited to born persons, but the due process and equal protection clauses are not so limited. (The distinction between the rights of citizens and the rights of persons was standard during this time, and remains in our constitutional law today.) His argument on the double jeopardy clause is odd, to say the least. The double jeopardy provision of the Fifth Amendment applies no better to newborns than to unborn persons, and in either case the point has no relevance to the due process or equal protection clauses of the Fourteenth Amendment.
Judge Bork claims that “there is not the slightest scintilla of evidence for the proposition that the Amendments were designed to protect all human life.” The proper question, however, is not whether the framers intended to include unborn human beings as persons, but whether they intended to exclude them as persons. He conveniently ignores my quote from John Bingham that the Amendment was intended to cover all human beings. Perhaps I should have mentioned that Bingham drafted the first section of the Fourteenth Amendment, and so may have been privy to its scope and meaning. I didn’t do this, however, because, as I stated in my article, my primary purpose was to rely on Justice Antonin Scalia’s jurisprudence of “original meaning” (what the words of the text mean to those to whom the text is publicly promulgated) rather than Judge Bork’s jurisprudence of “original intent” (what the framers of that text subjectively intended the words to mean), a subtle but important difference. Judge Bork’s originalist standard would seem to require for the unborn person interpretation some overt reference to it during the legislative or ratification debates. This, I propose, is an unreasonable expectation. As Professor Stith cleverly observes, the framers of that Amendment didn’t mention Judge Bork either, as they did not mention the poor or the elderly, and yet surely its provisions cover all of them.
Having provided considerable evidence that the people of that time would have understood the word “person” to include unborn children, I had expected a stronger refutation of this point than that the criminal laws of the various states and territories differed in how they protected unborn children. As early as the thirteenth century Henry de Bracton (often regarded as the “Father of the Common Law”) expressed the common law teaching that anyone who causes an abortion of a quick fetus “commits a homicide.” This law was imported with the rest of the common law into the American colonies, and remained as standing law after independence from England. In 1803 England—apparently without controversy—enacted the first statutory change to the common law on abortion by passing the “Crimes Against the Person Act” (note the word “person” in the title of the act), which prohibited abortion throughout pregnancy and provided the death penalty if the woman was “quick with child.” The quickening distinction was dropped in 1861. States in the U.S. slowly but steadily followed suit, such that by 1860 70 percent of states had statutes criminalizing abortion, and by the end of the century every state had criminalized abortion through all nine months of pregnancy. Considering this history, I repeat that the burden is on Judge Bork to show why the framers of the Fourteenth Amendment intended to exclude unborn human beings from Fourteenth Amendment protection.
Judge Bork’s attempt to refute my analogy of the unborn person interpretation to the commerce clause reveals a fatal flaw in his position. According to him, the commerce clause represents a “principle”—“to keep trade open between the states.” And so “interstate movement of trucks” clearly falls within the principle. But he notably neglects to state the principle embodied in the Fourteenth Amendment. Does it represent a limited effort to protect newly liberated blacks from the odious “black codes” of the South, or does it represent an effort to protect all persons from hostile or indifferent state governments? The latter interpretation is supported, not by my moral passion, as Judge Bork would have it, but, as I show in my article, by the text of the Amendment and the historical context of its drafting. Which brings us to the second question: Do the protections of the Fourteenth Amendment extend to private wrongs against persons?
Inexplicably, Judge Bork virtually ignores my reliance on the equal protection clause. Yet what more “discrete and insular” minority is deprived of the equal protection of the laws than unborn children subject to abortion? Or what “rational basis” (United States v. Caroline Products, Co.) could a state have for protecting the right of mothers to have their children killed in the womb? Would declaring the right to life as “fundamental” (Skinner v. Oklahoma) be a raw exercise of judicial activism? Judge Bork correctly notes that the Fourteenth Amendment did not outlaw armed robbery, but he misses the point that disparate prohibition or enforcement of prohibitions against armed robbery (say, excluding racial or socioeconomic minorities from protection) might very well involve a violation of the equal protection clause.
Similarly, Judge Bork misrepresents my position on state action to say that “all private action is state action.” I never did, or would, subscribe to such a ridiculous claim. There are certain actions a state may do by virtue of being a state that a private individual could never do (e.g., collect taxes), and vice versa (marry). But this does not mean that some private actions do not involve state action. The Court ruled in De Shaney v. Winnebago County that the state was not liable under the due process clause for failing to protect a child from his abusive father. But what if the state protected the right of fathers to abuse their children? We are back again at the principle embodied in the Fourteenth Amendment. In fact, those who framed and ratified the Fourteenth Amendment clearly intended for it to reach private action, as evidenced by the Civil Rights Acts of 1866, the Ku Klux Klan Acts of 1870-72, and the Civil Rights Act of 1875. It is important to note that although most—though not all—of these acts were eventually struck down by the Supreme Court, they were passed by large majorities of the very same people who sent the Fourteenth Amendment to the states for ratification. Without entering into the debate over congressional versus judicial enforcement of the Fourteenth Amendment, I’m very curious to know how Judge Bork would treat a congressional statute prohibiting abortion, pursuant to its section five power.
Finally, in regard to Judge Bork’s parting salvo that my criticism of Antonin Scalia marks the onset of fanaticism, let me make clear that I have great admiration and respect for Justice Scalia, and that I do not agree with much of the “Justice Scalia is not Catholic enough” crowd. However, as Aristotle says, “It is sacred to honor truth above friendship.” In this respect, Judge Bork simply misunderstands my point about “value judgments,” a term which has roots in Friedrich Nietzsche’s philosophy of nihilism. That Judge Bork was persuaded to change his position on abortion through rational arguments indicates precisely the point I was making, that one’s proper opposition to abortion is not a “value judgment,” but the rational recognition and affirmation of an objective metaphysical truth and moral law.
I would remind Judge Bork that true fanaticism is marked by intense, uncritical devotion to a cause or ideal, and encourage him to consider whether the shoe may be on the other foot when he proclaims any criticism of the regnant pro-life constitutional doctrine as “attacking one’s friends” and “the onset of fanaticism,” especially when his defense of this position requires him to discover a truly absurd equivalency between a constitutionally protected “privacy right” to abortion (Harry Blackmun) and constitutional protection of unborn persons (myself).
Each of the correspondents above makes important contributions to this debate. Given my limited space, I will reply here only to Mr. Regan’s claim that Justice Byron White both responded to and even embraced the unborn person interpretation. I wish he was right, but in fact, it is Mr. Regan who is “simply incorrect” on this matter, and the fact that he misreads Justice White on this critical point indicates precisely why the restoration argument is so bankrupt. Mr. Regan correctly quotes Justice White in Thornburgh, and so one would expect him to make the obvious inference (as Mr. Regan does) that unborn children are persons protected by the Fourteenth Amendment. But Justice White does not do so, or even entertain the idea of doing so short of his conditional statement at the opening of the paragraph Mr. Regan cites. Instead, Justice White places himself firmly in the restorationist camp of Justice William Rehnquist (who signed on to Justice White’s opinion), leaving the matter of abortion up to state regulation. That this is Justice White’s position is clearly affirmed by Justice John Paul Stevens’ comments on Justice White’s dissent. Why Justice White and others fail to make what would seem the obvious conclusion on abortion and the Fourteenth Amendment, of course, is the subject of my article, and it has yet to receive a reasonable and fair explanation.
Robert H. Bork replies:
The responses to my argument that neither the Fifth nor the Fourteenth Amendment makes abortion unconstitutional advance a number of contentions to the contrary. None of them, I think, has merit.
We may begin with arguments about the proper method of construing a legal text, which is what the Constitution is. John Manning Regan calls my analysis “sophistry at best” but is kind enough to refrain from saying what he thinks it is at worst. The standard mode of interpreting a document that uses the same term repeatedly, as the Constitution does the word “person,” is to conclude, absent a clear textual or historical indication to the contrary, that the term has the same meaning in all its appearances. Either that standard canon of construction or Mr. Regan’s new free-form version must be abandoned. There is absolutely no support for Mr. Regan’s assertion that the word “person” in the due process and equal protection clauses is “self-contained,” i.e., independent of its obvious meaning throughout the rest of the Constitution. Nor does he offer any reason why self-containment would lead to his desired conclusion. Mr. Regan suggests that because the Fourteenth Amendment states that “All persons born or naturalized in the United States . . . are citizens of the United States and of the State wherein they reside,” a judge is “perfectly free to infer that the events enumerated are sequential: personhood first, birth second, and citizenship third.” Birth and citizenship, however, being clearly simultaneous, the claimed sequence is destroyed. The natural reading makes all three statuses simultaneous.
Shawn Smart points out that blacks were not mentioned in the Fourteenth Amendment but that it was ratified to redress their grievances. Quite so. Everybody knew that at the time, as we know from the fact that the framers and ratifiers talked about it. Nobody even suggested that the Amendment was ratified to outlaw abortion. It passes belief that so major a nullification of many state laws would not even have been mentioned. The silence of the record is deafening and dispositive.
I am grateful to Stuart Buck for pointing out that Lysander Spooner thought the Constitution banned slavery even before the (apparently superfluous) Thirteenth Amendment. I will amend my statement that “apparently no one, including Lincoln,” thought that to read “Lincoln did not think that, and only a constitutional eccentric could have.” It is also true that no one that I know of (unless it was a latter-day Spooner) thought the equal protection clause required states to protect persons from each other. That would mean that the clause mandated the content of all or most of the criminal and tort laws of each state, which is manifestly not the case. In any event, the argument assumes once more that an unborn is a constitutional “person,” which is clearly not true. The Fourteenth Amendment’s purpose to protect blacks from the Ku Klux Klan required, as Mr. Buck says, enforcement by acts of Congress. Whether or not those acts were properly struck down is beside the point. The statutes were thought by Congress to be necessary to enforce the Amendment, and the fact that no federal abortion legislation similar to the statutes Mr. Buck cites was enacted cuts against the notion that the Amendment had anything to say about the unborn.
I am saddened to learn from Professor Richard Stith that the framers did not have me specifically in mind when they framed the Fourteenth Amendment, though what that oversight has to do with the argument is unclear. They clearly had in mind, as the plain meaning of the text shows, the category of the born. That cannot be avoided by the professor’s rather startling description of the majestic phrases of the Fifth and Fourteenth Amendments as “miscellaneous particulars.” You might as well describe the entire Bill of Rights as a grab bag of miscellaneous particulars. To say that there is “no sign that the Fourteenth Amendment used ‘person’ with anything less than the same universality as the original Constitution” in Article I, section 2, is both true and of no help to Prof. Stith’s thesis. Slaves were persons because they had been born; nobody counted a pregnant free woman as two persons or a pregnant slave woman as one and one-fifth persons for purposes of a state’s representation in Congress. (It should be noted in passing that the three-fifths clause was not adopted “for the express purpose of singling out such persons for discrimination.” A slave was already so singled out as definitively as could be imagined. The purpose of the clause was to reduce the number of representatives the slave states were entitled to in the House of Representatives. The slave states wanted slaves counted as full persons.)
Nothing is altered by turning, as Dr. James E. Brown, Jr. does, to the testimony of modern science about when life begins. The question is not what science has to say about conception but what those who made the Fifth and Fourteenth Amendments law understood themselves to be doing. If some of them thought, as was surely the case, that life began sometime before birth, perhaps at quickening, that belief clearly did not make its way into the Constitution and would not, in any event, outlaw all abortions.
Similarly, the Constitution is not altered by appeals to morality. Richard J. Traynor quotes George Weigel’s dictum that every human action is within the reach of moral reason. I could not agree more. Shawn Smart says that “it is moral reasoning that tells us that life, whether unborn, severely retarded, or decrepit is worthy of protection under the law.” Quite so. Dr. Brown quotes Father Spitzer, that “every being of human origin must be considered a person.” (Also quite right, barring a future of genetically designed creatures.) It may be doubted that the egregious Peter Singer will ever persuade a legislature to authorize mothers to kill one-year-old children, but if such a catastrophe were imaginable, it is clear that a year-old child is a “person” within the meaning of the due process and equal protection clauses as an unborn is not.
The difficulty with arguments of the Traynor-Smart-Brown variety is that legal conclusions do not follow automatically from moral propositions. The Constitution does not and could not of itself prohibit every instance of even the grossest forms of immorality. It leaves such matters as bestiality, pedophilia, kidnapping, murder, and treason to laws to be enacted according to the morality and prudence of the American electorate. So it is with abortion. If we cannot convince the American people of the immorality of abortion, it is not only fruitless but wrong to short-circuit the democratic process by pretending that a Constitution that is plainly silent on the matter does the job for us. Majorities are capable of ordering, countenancing, or failing to understand evil actions, but our theory of government is that the cure, in cases where the Constitution does not speak, as it does not here, must lie in the moral education of those majorities.
The judicial rebellion and chaos Mr. Regan advocates is a stratagem that, once tried, would be found irresistible by other judges who found other Supreme Court decisions pernicious. A Court decision that the Constitution forbids all abortions, no exceptions, for example, would quickly incite pro-choice judges (probably a clear majority) to rebellion. Mr. Regan would be left with his chaos and nothing else.
Josh Cole’s argument is that “where the state protects some persons from a type of private injustice, the state must protect all persons from that private injustice.” That raises problems not easily discussed in short compass, but is made irrelevant by the fact that the Constitution does not require a state to classify the unborn as persons. Mr. Cole posits a situation in which the Supreme Court decides that all abortions are violations of the due process clause and Congress is sufficiently pro-life to pass anti-abortion laws. Aside from requiring the Court to engage in blatant distortion of the Constitution, the scenario is theoretically possible though most unlikely.
Prof. Schlueter misunderstands much of what I wrote. When I called his argument irrelevant to the future course of the law, I was, as he surely must know, making a prediction, not advocating expediency as a method of constitutional interpretation. If, as Joseph Collison says, the courts have been extending the concept of “person” to woodpeckers, that hardly justifies them in also being wrong in ways Prof. Schlueter prefers. His argument becomes risible when he says that the “proper question, however, is not whether the framers intended to include unborn human beings as persons, but whether they intended to exclude them as persons.” Obviously, they intended neither; they simply had nothing to say about unborns. John Bingham’s statement advances the argument not at all, unless you start with Prof. Schlueter’s conclusion. The professor has apparently read The Tempting of America and should know that I explicitly disavowed any reliance upon the framers’ subjective intent. What matters is what their words would have meant to reasonably intelligent people of the time. But he claims to have “provided considerable evidence that the people of the time would have understood the word ‘person’ to include unborn children.” I must have missed something; so far as I can tell he offered no evidence of that. He may suppose that his recitation of the common law and statutes about abortion shows something, but it does not. Some abortions were then lawful and, in any event, many things are forbidden or limited by the common law and statutes that are not forbidden by the Constitution.
The equal protection clause adds nothing to the professor’s argument. The question is still what the Amendments meant by “person,” and there he fails to make any showing—textual, historical, or structural—that the term was understood to include the unborn. He expresses curiosity as to how I would treat a congressional statute, adopted pursuant to section 5 of the Fourteenth Amendment, prohibiting abortion. I would treat it as unconstitutional. Section 5 confers the power to “enforce” the provisions of the Amendment. That is not a power to rewrite the Amendment.
I have found this exchange profoundly dispiriting: neither Prof. Schlueter nor the correspondents have standing to chastise Justice Harry Blackmun for Roe, for they have conceded to judges the authority to rewrite the Constitution. That each side thinks the other’s morality wrong justifies neither in that revisionist enterprise. The pro-life forces passed up the chance to get a constitutional amendment overturning Roe so that the issue would return to the states and their citizens. Instead, they insisted upon an amendment completely banning abortion and, predictably, got nothing. Having failed to amend the Constitution, they now insist that they really did not need to accomplish that because such an amendment was adopted well over a century ago.
To judge from this exchange, which I hope is not an adequate sample, the prospects for maintaining (or regaining) the integrity of the Constitution are dismal. Both the cultural left and the cultural right (on this issue, at least as represented by these discussants) are eager to make the Constitution mean things it simply does not mean. The liberal left sees constitutional law as merely cultural politics. Cultural conservatives ought to resist that and fight the culture war where it belongs, in the arenas of moral discourse and democratic politics.
