Front Page Titles (by Subject) 7: Abortion and the American Political Process - In Defense of the Constitution
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7: Abortion and the American Political Process - George W. Carey, In Defense of the Constitution 
In Defense of the Constitution, revised and expanded edition, (Indianapolis: Liberty Fund, 1995).
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Charles Beard’s An Economic Interpretation of the Constitution of the United States, a work that can be credited with sparking the enormous interest that has been shown in Federalist 10,* is perhaps the best example I can offer. Briefly put, Beard quotes extensively from a portion of the essay in an effort to show that Madison was a pre-Marxian Marxist who believed that the basic divisions in society would be economic, between the “haves” and the “have nots.” Yet, Beard was able to accomplish this only by deleting key sentences in the middle of the quoted portion—sentences that clearly indicate that Madison was very much aware of other and, as many analysts would argue, even more potentially devastating sources of division and conflict originating from distinctly noneconomic sources involving passion and opinion. In his Main Currents in American Thought, Vernon Parrington is also guilty of the very same practice, though his elliptic surgery is more precise than Beard’s. And both are also guilty of not pointing out another facet of his theory that does not so readily fit their preconceived notions: Madison also anticipated a “horizontal” conflict between different economic interests, not simply a “vertical” conflict between those with and those without property.
A few words are in order about the last section of my analysis. It was written in 1975 shortly after New York City went bankrupt. I believed—and one has only to read William Buckley’s The Unmaking of a Mayor to see why—that a major contributing cause of this bankruptcy was the practice of pandering to virtually every identifiable interest in the city.** I could also see that politics at the national level was alarmingly similar to that of New York, particularly after the enactment of the Great Society programs. While New York could turn to the national government for relief, the question arose in my mind, “Where can the national government turn once it runs out of money?”
Madison recognized that this conception was not without its difficulties. In his final reflections on the nature of our union (“Notes on Nullification”), he acknowledges the argument that this middle-ground position, implying as it does a division of sovereignty between the national and state governments, may be theoretically untenable. Interestingly enough—by way, it would seem, of pointing up the disparity between theoretical speculation and practice—his response to this charge takes the form of pointing out that an understanding of the operations of our system depends on an awareness of this middle-ground principle or position. More significantly, at least from the viewpoint of the values and ends to be served by a division of powers between state and national authorities, he adds: it behooves “all ... who are friends of a Government based on free principles to reflect, that by denying the possibility of a system partly federal [confederal] and partly consolidated [unitary], and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of liberty on the face of the Earth.” *
As sensible and moderate as this position might seem, Hamilton’s position was attacked by certain Antifederalists who argued that this doctrine would provide an opening for the judiciary to usurp almost unlimited power. “Brutus” was among the more forceful in his attack: “They [the courts] will give the sense of every article of the constitution that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. From this court there is no appeal.” * Over the years Brutus’s contentions have gained credibility from the parallel charge that Hamilton wanted a strong judiciary to protect the privileged from the rampaging majorities. Indeed, an enduring revisionist theme, shared by some conservatives as well, is that the Court was designed to be the final bastion against majorities intent upon regulating property rights. In this regard, it is commonly noted that when the Court, after its turnabout in the mid-1930s, no longer could be counted upon to perform this function, conservatives and liberals switched sides on its relative virtues.
At the heart of the new constitutional morality stand the twin pillars of judicial supremacy and rights, the more fundamental of which is rights because without them the avenues for judicial supremacy would not be open, not at least under the guise of republicanism or constitutionalism. But clearly ours is not a “rights tradition” in the sense the American Civil Liberties Union (ACLU), most academics, and the modern courts would have us believe. And even the adoption of the Bill of Rights soon after ratification does not alter this fact, for how else could Madison, its “father,” see fit to declare that these rights could not “endanger the beauty of the Government in any one important feature, even in the eyes of its most sanguine admirers”?** And, in all of this, there is true irony because the Antifederalists, who championed the cause of a bill of rights, sought to limit the authority of the national government vis-à-vis the states. At that time they were unable to secure the passage of amendments that would effectively limit the national government, and today it is the application of the Bill of Rights through the Fourteenth Amendment that has served to further nationalize our system.
Here, by way of introduction to this historical analysis, a few comments relative to the broader theoretical concerns that arise from the conventional argument advanced for substantive due process are called for. In defending substantive due process, as I have remarked, it is fashionable to speak of legislatures passing unreasonable, evil, and oppressive laws, laws that are offensive to our sense of justice or decency. Now this argument—at least in the abstract—presupposes that there is a fundamental agreement on a wide range of values so that, for example, the conditions that constitute injustice can be readily discerned. Indeed, I would argue that it is precisely this presumption that renders the argument so appealing to many. But if there is such a consensus over right and wrong, just and unjust, why would the representatives act contrary to these consensual norms? On what grounds are we justified in assuming that legislative bodies, consisting of individuals elected by and accountable to the people, would be inclined to pass laws of this character?* To believe, as judicial activists are wont to do, that legislatures are in constant need of judicial oversight because of their propensities to pass unjust and oppressive laws clearly brings into serious question the underlying justifications for republican government and suggests that, if it is justice we seek, perhaps some other form of government would be more suitable.
Abortion and the American Political Process
While the following and concluding selection was prompted by the Court’s abortion decision (Roe v. Wade), it draws together much of what I have said about the principles of our older constitutional morality by showing how the operations of the new morality simply supersede them. Roe v. Wade and subsequent Court decisions relating to abortion are prime, but by no means the only, examples that can be used to dramatize the extent to which we have abandoned the traditional morality. Beyond this, I attempt to identify what I believe to be the basic theoretical foundations of the new constitutional morality, an effort that necessarily involves going beyond the context of American institutions to a brief examination of modern Western thought.
Nothing has occurred since this piece was written to change the thrust of my argument. However, there are some points that I would emphasize more today and others that I would add. The first of these relates to the fact that there is, indeed, a new constitutional morality; that it is not the figment of the imagination of those who, like myself, do not particularly like to see the Court exercising positive, lawmaking powers and then attaching their pronouncements to some constitutional provision thereby rendering them irreversible through the ordinary political processes. The enormous powers of the Court in this regard are not lost upon some astute observers of our system who now contend that the most important issue at stake in presidential elections is deciding who will fill the vacancies that may arise on the Court. It is entirely conceivable, if not probable, that a President can have more impact on the long-term direction of the nation through his appointments to the Court than he can through the exercise of any other of his constitutional powers or functions. This is one measure of how far the new constitutional morality has taken us from our traditional moorings.
In this respect I would emphasize the dangers inherent in formulating policy in this fashion. The Court as an institution is simply not suited for this task. Unlike the Congress, it has no reliable means to gauge the relative intensity of the interested parties, what the reactions will be to any given pronouncement or, inter alia, what obstacles are likely to arise in its execution. And once having embarked on a path, it can pull back or reverse itself only at great cost to its own prestige and the principle of the rule of law. Moreover, leaving aside the legitimacy of these activities, its members are ill equipped for such tasks because legal training scarcely provides the breadth of knowledge in fields such as philosophy, history, the sciences, and social sciences necessary for this mission.
These shortcomings, it is true, might or might not lead to serious consequences. But, taken together with the fact that the Court can act unilaterally, they all point to the potential for the kind of precipitous action that leads to factious policies. To put this another way, the character of the extended republic almost insures prolonged debate and deliberation before the national government can undertake any comprehensive program. And, even with this, as Publius notes, there still is no guarantee that factious majorities might not on occasion prevail. To this issue, Publius speaks in terms of probability; that given the numerous and diverse interests in the republic “seldom” would a factious spirit overtake a majority. But with the Court none of those conditions or factors associated with the extended republic comes into play. In a sense, then, the Court resembles the pure democracy that Madison detested, the more so as ideology grips a majority of its members, because impulse and opportunity for action so readily coincide.
What can be done about this state of affairs? In addition to what I say about this matter in what follows, I am convinced that “judicial self-restraint,” which is frequently mentioned as a remedy, simply will not serve the purpose. None of the justices, including those who have advocated this doctrine by way of chastising their activist colleagues, has ever consistently adhered to this doctrine. We cannot expect the judges to abide by this standard any more than we can count on the members of the news media to police themselves when it comes to matters of propriety and national security. And the justices’ task is made doubly difficult given the political agenda associated with the new morality, since the temptation arises so frequently to abandon the principle of judicial restraint and strike a blow for “good” over “evil.” Nor will the fact that the Court’s composition and outlook change—at least that of the majority—over a relatively short period of time (a new justice is appointed on the average of once every 2.5 years or so) serve to keep the Court within its bounds. A change of personnel simply does not go to the heart of the problem. The potential for judicial usurpation remains.
Ultimately, it seems to me, Congress must fashion a permanent remedy either through legislation, or more probably in the form of an amendment.* Limiting the jurisdiction of the Court or recourse to the impeachment process—remedies consonant with the older morality—are at best piecemeal solutions that would provide only temporary relief. The fact is that we look in vain to the Founders for a lasting solution to our problem because, as we have seen from Hamilton’s commentary, they simply did not envision the emergence of a new morality that would justify the present role and power of the Court. Put otherwise, impeachment, given their understanding of the system, would be a deterrent and an appropriate remedy for wayward justices precisely because there was a consensus about the proper role of the judiciary. Now, however, thanks to the new morality, this consensus no longer exists and so their remedy is no longer viable. Under the older morality, the justices would never on any consistent basis undertake “active resolution,” not so much, we may surmise, because they would be impeached and removed from office, but rather because they understood the role of the Court to be pretty much that described by Hamilton. But, again, thanks to the new morality, this situation no longer obtains.
What seems clear from this is that, whatever form the remedy takes, its end must be that of effectively delineating the Court’s role relative to the other branches. What is also abundantly clear is that the political constellation of forces at this point in history is such that any remedy will be a long time coming. The constitutional crisis to which I refer will be with us for quite some time even though morally and constitutionally monstrous decisions such as Roe v. Wade do serve to hasten the day of reckoning.
The solution to the abortion question that I offer, written as it was in 1976, may seem completely outdated to many, if for no other reason than that the political landscape has changed. Now the “right to life” forces have turned the tables and are seeking legislation from a seemingly sympathetic Congress that would codify Roe v. Wade. This, I should note in passing, is an interesting development because the move toward legislation derives in part from the realization that Roe v. Wade is not sufficient to legitimize abortion “rights,” any more than the Dred Scott decision legitimized slavery. Moreover, what is apparent is that Congress, from all indications, is not so sympathetic to abortion “rights” as initially thought; that, contrary to expectation, it would place more restrictions on abortions than the Court.
But be that as it may, my solution is not so outdated as it might seem to be at first glance. In the first place, there is an excellent possibility that resolution of this controversy will, indeed, come through national, not state, regulation. The Court, in effect, has acknowledged that it stepped out of line with its Roe decision, all of which strengthens Congress’s hand. And once the issue is placed in the political realm for resolution, the pro-lifers will have won a strategic victory of immense significance. Even if the initial legislation caters to the abortionists, subsequent Congresses will have to face enormous pressures to restrict abortion. And unless the nation has lost all of its moral sensibilities, the people will not long endure a policy of abortion on demand that terminates over 1.5 million pregnancies (or about a third of all pregnancies) each year.
Finally, as I argue, Congress should use Section 5 of the Fourteenth Amendment rather than the commerce power in resolving this matter. That it is more sensible to use Section 5 is, I think, readily apparent. Beyond this, though, the Congress would be sending the Court a message, namely, that Congress bears primary responsibility for interpreting the terms of the Fourteenth Amendment.
ABORTION AND THE AMERICAN POLITICAL CRISIS
The abortion controversy mirrors a far wider battle that is taking place in the Western world. The issue clearly involves religious, philosophical, ethical, legal, economic, and, inter alia, political considerations of the most fundamental nature, involving the very roots of the Judeo-Christian tradition.1 But here I mean to note only those aspects of it that clearly pose serious challenges to our own republican institutions and procedures.
For the Founding Fathers the central problem of the strengthened national government that they established via the Constitution was this: how could the effects of factions be controlled? For them the word “faction” had a far deeper meaning than we normally attach to it today. It did not refer simply to interest groups in the society, or even to those who had organized to seek change in our political and social structures. Rather, the term referred to those who sought to operate outside the accepted moral and ethical principles that provided the cohesion necessary for the society to operate at all; it connoted a selfish group that sought immediate gratification of its interests at the expense of the long-range interests of the society. These characteristics of faction are embodied in Madison’s well-known definition:
By a faction, I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community (10:43–44).
Factions, of course, could plague any form of government. But it was well recognized, as Madison put it, that factions are the source of the “diseases most incident to republican government” (48), the very form of government that the Constitution embodied. Because the “latent causes of faction are sown in the nature of man” (44), and men possess the liberty to pursue their ends, no matter how selfish or ignoble, factions are necessarily found in abundance in republican forms. Moreover, according to Madison’s line of reasoning, it would be both impractical and unwise to take those steps necessary to eliminate factions. This would involve the elimination of liberty, an element essential to factions. Yet, to do this would be tantamount to the “annihilation of air . . . because it imparts to fire its destructive agency.” Thus, eradicating liberty is too high a price to pay to avoid the ills of faction. To reduce all men to the same interest, another method of eliminating factions, would be impossible because “different opinions will be formed” so long “as the reason of man continues fallible and he is at liberty to exercise it.” What is more, to reduce men to the same interests runs counter to the “first object of government,” which is to protect the “diversity in the faculties of men” (44).
Here, let us briefly discuss the solution to the problem of factions which Madison, the purported “father” of our Constitution, was foremost in articulating both in the Philadelphia Convention and in The Federalist.2 The very extensiveness of the new republic, a given factor, played a critical role in his thinking. Extensiveness meant that there would be numerous and diverse interests, a condition not to be found in small territorial democracies, and that the people would not make decisions directly. Rather, elected representatives of the people would have to assemble to conduct the affairs of state. These two factors, which are the concomitants of extensiveness, would serve to control the effects of faction. How and in what ways? Because, first, in electing representatives, the attention of the people was likely to focus on individuals “whose wisdom may best discern the true interests of the country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations” (47). Thus, factious proposals would stand little chance of success in our national councils of decision making.
Second, the multiplicity and variety of interests would serve to make the task of any faction securing majority support extremely difficult. Factious proposals would seldom “force” themselves into the national political arena. For one thing, among the variety of interests it would be difficult to find a “common motive” for united action, and even if a common motive did exist, extensiveness would make it “difficult for all who feel it to discover their own strength.” For another, “where there is a consciousness of unjust or dishonorable purpose, communication is always checked by distrust in proportion to the number whose concurrence is necessary” (48). Beyond this, we may note, any concerted campaign by a factious majority would take time. This would allow the people time to deliberate, so that, unlike pure or direct democracies, there would be far less likelihood that a majority would succumb to unreflective passion and the appeals of a demagogue.
These, in brief, were the factors that Madison felt would operate to control the effects of a majority faction. In his words, in our extended republic “and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good” (51:269). But if Madison believed that majority factions would seldom rule, he was certain that minority factions would never be able to impose their will on the entire nation. All that he writes concerning the dangers of minority factions is the following:
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution (10:45).
A knowledge of only the essentials of this underlying theory is enough to make the victory of the pro-abortionists by means of a Supreme Court fiat appear incredible. What is evident is that none of the hurdles associated with the extensive republic was even confronted, much less jumped, in their successful “campaign.” At no point did the people have the opportunity even to deliberate over an issue of such profound moral and philosophical import. The pro-abortionists had not tasted victory for their position in any such manner in even one of the fifty-one jurisdictions composing the nation. Nor did the elected representatives of the people at any level have any input into that policy that is now national in scope. The evidence is irrefutable: if the American system had operated in a manner even approximating what Madison and the Founders had anticipated, the pro-abortionists would never have achieved a victory of such dimensions.
Clearly the victory for abortion on demand manifests the breakdown of the traditional American political order. It did not cause the breakdown; it is, however, the most vivid and incontrovertible evidence of that collapse. A faction, and a minority faction at that, was able to impose its will upon the entire nation as constitutionally binding.3
At the political level the explanation for this breakdown is easy to come by. We can best begin by observing that over the last several decades the Supreme Court has increasingly assumed the function of a supreme legislative body. Through its interpretation of the “equal protection” and “due process” clauses of the Fourteenth Amendment, it has increasingly exercised control over matters and concerns that were formerly regarded as within the domain of the states.4 For instance, through the process generally known as “selective incorporation,” it has used these clauses of the Fourteenth Amendment to nationalize the major provisions of the Bill of Rights so that they are now fully applicable to the states. This alone has fundamentally altered our original constitutional ground rules because the Bill of Rights was not intended to apply to the states.5 On the contrary, it was looked upon as a curb on the powers of the national government vis-à-vis the states.6 Moreover, and what is more important, the Court’s interpretation and use of the Fourteenth Amendment, whether in the process of selective incorporation or scrutinizing state laws to see if they conform with the “equal protection” and “due process” clauses, have served to render it an institution of immense powers, far beyond anything dreamt of by the Founding Fathers.
Certain vital issues that in the past evoked controversy concerning the Fourteenth Amendment and its purpose are now, sad to say, regarded as “water under the bridge.” For example, it is highly doubtful, to say the least, that the drafters of the Fourteenth Amendment intended that it be used (as it has been used) to reduce the states to little more than subordinate principalities under the thumb of the Supreme Court. Rather, common sense, the language of the amendment, and its historical context would strongly suggest that its purpose was to guarantee the newly freed slaves the same due process and equal protection accorded the white citizens of the various states, particularly those that had formerly composed the Confederacy.7 Nevertheless, as important as this issue may seem in terms of the drift of the American system, it is, as we have said, passé. The course of events and ideological factors seem to preclude serious discussion of this issue today.
Where we do continue to find controversy is in regard to the interpretation the courts have given to the principal clauses of the Fourteenth Amendment, as well as the Bill of Rights. And, more frequently than not, such controversies involve legal mumbo jumbo that makes it difficult to see the forest for the trees. The basic issues involved center around the fundamental principles of our system of government and are best understood in this light. It is not difficult to see that reasonable men will come to a parting of the ways at some point over the meaning of equal protection and due process. Nor is it difficult to see that, if one adopts a liberal or expansive interpretation of these concepts, the way is opened for greater judicial control over the states. Of course, and largely for the same reasons, the Court’s interpretation of the Bill of Rights also affects the latitude of state discretion.
Against this background, what is abundantly clear is that modern courts—most especially the Warren Court—have seen fit to read their ideological preferences into the meaning, and hence the requirements, of equal protection, due process, and the Bill of Rights. Long-standing rules of constitutional interpretation were scrapped to advance the goals normally associated with secular liberalism.8 For the most part, in these endeavors the Court was content to nullify state practices that it deemed inconsistent with its constitutional interpretations. However, with the desegregation cases, the Court took upon itself the authority to enunciate positive public policy. In the Warren era it began, in effect, to tell the states: “The laws you have on the books are not only unconstitutional but this is what you must do in order to conform with the Constitution.” Now the courts, at every level, are in the business of playing a positive, not negative, role; of commanding specific changes that are presumably the outgrowth of mandates embedded in our constitutional language.9 Few today, even defenders of the Court, will deny it is legislating. And one has only to look at Boston’s Judge Garrity to see clearly the culmination of this process, which comes, in my judgment, to nothing less than judicial tyranny.
In all of this, of course, the Court has far exceeded the role marked out for it by the Founders. Evidence that the Founders intended judicial review is, at best, very scanty. We do find in Alexander Hamilton’s Federalist 78 a reasoned argument for judicial review—but of a kind and type totally unlike that which we have described. The Court, Hamilton enjoins, is to follow “strict rules and precedents” (406). The Court’s power of judicial review extends only to laws whose provisions violate the “manifest tenor” of the Constitution (402). And, according to Hamilton, it should exercise its veto power over legislation only when there is an “irreconcilable variance” (403) between the provisions of the law and the “manifest tenor” of the Constitution. Finally, Hamilton maintains, the Court should always exercise its “JUDGMENT,” not “WILL” (404). The exercise of “WILL” he deemed the particular prerogative of the legislative branch.
To appreciate fully the morality that Hamilton urged upon the Court, as if he knew that even severely limited powers of judicial review would be a matter of intense controversy, we should bear in mind his perception of the relationship of the Court to our other institutions. In this context he writes that the Court is “beyond comparison the weakest of the three departments of power,” and the general liberty of the people can never be endangered” (402) by the Court; it possesses neither “FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments”; and, in this vein, the Court “can take no active resolution whatever” (402). In sum, Hamilton takes pains to assure us, we have nothing to fear from the Court, even one vested with the power of judicial review.
Today, of course, Hamilton’s conception of the judiciary and its power, as sensible as it is in the context of a limited republican government, is also passé. What we have in its place is a theory of judicial supremacy, a theory that, remarkably enough, is supported by most of our elected leaders, who accept the notion that the Court is the final arbiter as to the meaning of the Constitution. We need not concern ourselves with detailing how it has come to pass that this doctrine has gained ascendancy. What is important are its ramifications. In the first place, we see that, as the Court successfully expands the scope of its domain, the latitude for deliberative self-government diminishes. Put otherwise, matters that were formerly considered to be within the realm of the political processes as outlined above now fall exclusively under judicial control, including both factious and nonfactious matters. Second, this new morality concerning the role of the Court both strains our credulity and serves to thwart our normal political processes.
In sum, the doctrine of judicial supremacy combined with the newly found legislative powers of the Court rests upon the notion that the Court can divine from our Constitution answers to a myriad of perennially perplexing problems—and very small ones as well. The Court seems to be somehow free from the doubts and anxieties that plague mere mortal men when it pretends to answer such questions as: when does life begin? At what stage in the development of the fetus can we say there is “life”? What are the proper structures and processes of our representative institutions? What does representation mean? What ought to be considered in determining the “representative” character of our elected decision-making bodies? How should states finance their schools? What is an equitable tax structure for this purpose? What represents religious intrusion into our publicly financed educational institutions?10
Natural Rights Theory and the Constitutional Decline
Yet this transformation of our basic constitutional division of powers could not have come about unless it had been supported and abetted by a theory, a rationale, or an ideology. Such is demonstrably the case. We are currently witnessing the full effects of a secular, scientific “humanism” that finds it roots in the natural rights philosophy.
While we cannot explore all the aspects of the relationship between the natural rights school of thought and our contemporary malaise, certain features do merit our attention. We should note at the outset that the preposterous fiction underlying the natural rights dogma, specifically that of autonomous individuals in a state of nature, reflects a mind-set that regards the state as an artificial but omnipotent construct. Far-reaching consequences flow from this conception. First, let us consider the image of the autonomous individual who is viewed apart from the complex organic whole of society. His duties and responsibilities to others in the order of things are almost nonexistent. Beyond this, the individual becomes a moral universe unto himself; the rationalism imputed to him is the source of rights. Thus, the individual is not subordinate to any higher or transcendental order not of his own making or derived from his own private stock of reason.11
Second, that a state can be born out of the consent of such atomistic individuals also provides us insight into the nature of the resultant political order. The state now becomes the chief repository of reason, itself cut off from any transcendent order or higher moral law. It must, initially at least, build itself on the lowest common denominator of the interests and values of those individuals that compose it. As such it possesses no higher purpose; its actions, laws, and such have as their foundation no more moral force than that which the consenting act of individuals can bestow upon it. It follows that the state, like the individuals composing it, is at sea without a rudder. In this context, to quote the late John Courtney Murray, the state is “simply an apparatus of compulsion without the moral function of realizing an order of justice; for in this view there is no order of justice antecedent to positive law or contractual agreement.” 12 And this situation leads us straightway into the morass of moral and ethical relativism.
Third, we should note that such a state eventually becomes all-pervasive. In terms of the natural rights theory it is the supreme authority precisely because it can lay a claim, superior to that of any subsidiary associations within the state, to embodying the collective will of all individuals. Consequently, and somewhat paradoxically, while there is a relativism with regard to individual values (the opinions of each autonomous individual are equal), there is an absolutism with respect to the state’s function; namely, the full power to enforce the rights that it decrees.
These, we suggest, are the main roots of the secular, scientific humanism that has served to undermine our constitutional order. But to make the picture complete we must deal with certain theoretical developments.
The secularism of the natural rights school bears the characteristics of a religion that has dictated the direction of its modern development.13 Because there is no transcendent moral order, the chief functions of the state become those of providing for material gratification. Science figures predominantly in this process for two reasons. First, science is the area that is presumably value-free, where, unlike the moral realm, findings, holdings, and the like are free from subjectivism. Thus science provides an objective yardstick in an otherwise relativistic world. Second, insofar as material gratification is the principal end of the state, scientific techniques can be of use. For instance, crude utilitarianism is a feature of natural rights philosophy, and what could be more natural than the refinement of a “felicific calculus” such as that set forth by Bentham? And this is precisely what has happened. The most recent and exhaustive effort in this direction is Rawls’s A Theory of Justice,14 a tedious and rather feeble philosophical defense of the secular welfare state. Understandably, his concern is with “primary goods” and their distribution. Not surprisingly, the primary goods are material goods, and we are led to believe that not only can human wants and needs be determined on a more or less universal basis, but also various levels of need can be established to insure optimum collective or aggregate gratification.
This development assumes great significance because those who “properly” use felicific calculus to meet the evident wants and needs of the people best fulfill the functions of the state. With this we come up against an interesting but logical inversion of the older natural rights philosophy: the best state is not one run by the people without any regard for a transcendent or higher moral law; rather it is one run for the people by those best able to calculate optimum material gratification.
Ramifications of Decline: Present and Future
We know that the vast majority of the American people have never consciously accepted this secular, scientific humanism in the terms we have set it forth. Very few, indeed, have probably ever given much thought to the intellectual and theoretical grounds that seem to dictate the direction of our governmental policies and the changes in our constitutional order. Indeed, probably few are aware of any such direction or shift. But who would deny that the concerted movement in manifestly predictable directions is not guided by a theory or philosophy, no matter how dimly perceived by the general public?15 The symbols, clichés, slogans, and assumptions of our public discourse make it abundantly obvious to me that we are traveling down the path to oblivion marked out for us by the natural rights theorists.
This account of their theory, sketchy as it is, helps to provide a deeper understanding of what has happened within the American system, as well as the directions it is likely to take. Consider, for instance, only the following:
(a) The elitism spawned by the developments we have traced is a proximate cause for the “realignment” of the intended decision-making authority in our system and of our constitutional rules relative to such decision making. In this context, the Supreme Court is just as capable (probably more so) of making correct calculations as the legislature. After all, legislative deliberation might result in a variety of nonmaterialistic considerations being brought to bear. Moreover, in the last sixty years, the Court’s pretense to neutrality finds a warm nesting place among the dogmas of secularism.
(b) The excessive concern for individual rights, apart from the social context in which they are asserted, is also traceable to the natural fights philosophy. The appeal to the state is understandable enough, for, in terms of theory, it is the only agency that is capable of dispensing rights. The result is an omnipotent state busily conferring fights upon individuals without regard to the impact of this on intermediate institutions or associations (the family, churches, schools, voluntary associations, and the like) that are essential for the cohesion of the state. Such intermediate groups have no place in the natural rights philosophy, whose very thrust is, rather, toward homogeneity of the citizens under the all-embracing state.
The process of rights conferral feeds back upon itself. As it tends to break down the intermediary associations, as the individual comes to find nothing between him and the state, the demand for new, more elaborate, and unheard-of rights grows and grows. Little wonder, then, that modern secularist thinking places such emphasis on our Bill of Rights. Yet, our Bill of Rights is essentially negative: it prescribes those things that government should not do. Only through such contortions as those we have witnessed in recent decades can the Bill of Rights meet the positive demands of the secularists. But it is doubtful that until the Ninth Amendment16 is uncorked—something that I believe is imminent—the Bill of Rights will be able to provide the source of all the rights emanating from the secularists. In any event, we can safely predict an expanded role for the Courts in the years ahead.
(c) We can anticipate in the future far more turmoil than we have as yet witnessed within our society. And this no matter whether our constitutional order is restored to its proper moorings of deliberative self-government, or continues on its present path. A restoration would involve severe “withdrawal” symptoms for a large part of our population that has grown accustomed to the dispensations of the state, principally the courts. On the other hand, a continuation of the present trend will involve a dragging of feet or disobedience by those who don’t like to be ordered about by fiats that are not the product of the deliberate sense of the community.17
Problems and Complexities: Consensual and Political
I have so far focused on certain political and theoretical aspects of our present crises that are highlighted by the abortion controversy, and that indicate quite clearly a breakdown in the American consensus, not merely a breakdown in the consensual process of the political order. A considerable portion of our population, that is to say, knowingly or unknowingly accepts and acts upon a theory that postulates the overriding end of the state to be maximum material gratification, individual or collective. Another sizeable proportion of the population adheres, again knowingly or unknowingly, to an older, but more vigorous and complex tradition that acknowledges a higher moral law. This older tradition, around which there was almost universal consensus at one time in our history, holds that the matter of “rights” is a very serious and tricky business once one gets around to acknowledging the complexity of society which is a very fragile organism. It holds that fulfilling the stated purposes of our Preamble—for instance, those of justice, securing the blessings of liberty to ourselves and our posterity, and domestic tranquility—is demanding; that there are no a priori answers to be derived from any baseless theory of natural rights for resolving the inevitable conflicts between the values and goods a society cherishes.
At base, then, there is no single solution to the cleavages in our public consensus. All one can do is to expose repeatedly and with clarity the secularists’ basic theory and presumptions in the hope that such a shallow and barren philosophy, once exposed, will fade away.
Other matters, admittedly less important but of immediate concern, are involved in the abortion controversy. One such issue comes down to how to rectify the Court’s decisions; more specifically, whether recourse should be had to the amendment process. Some antiabortionists hold that such an amendment, taken along with the busing, reapportionment, and prayer amendments, would “clutter up” the Constitution with matters not truly of constitutional status and that, moreover, once it becomes common practice to amend the Constitution every time the Court renders an unpopular decision, the stability of the constitutional order would be undermined. Another, and in our view more compelling, argument against the amendment procedure is that such a course of action would signify by clear implication that (a) the Court possessed the power to rule authoritatively on these matters, and (b) the Court’s decision represents a correct reading of the Constitution. Else, why amend?
The argument to the effect that the Constitution would somehow be trivialized by the abortion amendment comes with ill grace from the pro-abortionists. Having won their case through the constitutional legerdemain outlined above, they now seek to close off the only possible remedy given the fact the Court has nailed its decision to the Constitution. In the first instance, it was the pro-abortionists and their kin on the Court who closed off all avenues for rectification save that of amendment.
But the theoretical considerations noted above relative to the clear presumptions involved in seeking an amendment are very weighty. To take the amendment route is to accept the liberal secularists’ view of the Constitution, its order and processes.18 We would, in sum, be playing ball in their park and under their rules. And the consequences of this can only be disastrous because their order is, in reality, no order at all: it holds to no principle, save that of imposing its will through processes that pose the least resistance. And that is why we have witnessed in the last several decades the abandonment of federalism in any meaningful sense of that word, a totally outrageous reformulation of the scope of judicial powers, and continued reversals of field with respect to the constitutional powers and prerogatives of the executive. Moreover, we know very well that when it suits their purpose they will once again change the rules.19
The case for a “human life amendment” is of course based upon the best of motives and it may seem crass and inhuman to allow these constitutional considerations to preclude a course of action that would put an end once and for all to the ethically monstrous policy of abortion on demand. However, there is another possible remedy that both utilizes our existing constitutional processes and joins the abortion issue with constitutional restoration. Specifically, Section 5 of the Fourteenth Amendment20 expressly empowers the Congress through legislation to enforce the provisions of that amendment, the most important of which are found in Section 1: “nor shall any State deprive any person of life, liberty, or property without due process of law.” Thus, Congress can, through a simple statute, incorporate the provisions of a human life amendment. This would be step one. Having done this, one of two possibilities would present itself. First, the Court might accept the congressional act, thereby abandoning its position. This possibility should not be underestimated, given an expression of congressional feeling and the fact that modem courts have shown a truly ingenious capacity to reverse fields.
The second alternative, of course, is that the Court would declare the congressional act unconstitutional. At this point the congressional recourse must be the impeachment process with the end in mind of clearing the Court of those justices who refuse to budge from their abortion-on-demand position. Here the issues would be joined: is Congress going to allow the Court to persist in a policy that permits the wanton murder of millions, a policy that contravenes Congress’s constitutional prescription?
We hasten to add that we do not lightly recommend such a course of action, which would force a constitutional “showdown” of the first order. Such showdowns are to be avoided at almost any cost.21 But the costs involved in allowing a continuation of the abortion-on-demand policy, by any known ethical standards deserving of the name, scarcely leave any alternative. Moreover, the repeated and successful assaults by the judiciary on our constitutional order, its abortion decisions being only among the most recent, must at some point be emphatically turned back. And, while we are under no delusions about the possibilities of achieving success through the means suggested here, the chances of procuring a constitutional amendment are scarcely any better. What is more, to the extent that constitutional action along the lines set forth here is even contemplated—be it only a group of, say, thirty to fifty representatives—the message is bound to be heard by a wider audience; the very terms of the ensuing debate will not only bring into focus the salient issues (moral and constitutional), but also put the pro-abortionists on the defensive and force them to do what is nigh unto impossible for them, namely, to set forth coherently their own moral and constitutional theories.22
Finally, in this connection, we must emphasize that the matter of abortion, contrary to what certain antiabortionists might contend, is a national, not a state or federal matter.23 The very nature of the issue involved must preclude even one state permitting abortion on demand, a probable result of any policy that would overturn the Court’s decisions only to the extent of returning us to the status quo ante. In this respect, the pro-abortionists have unwittingly performed a service for the antiabortionists: having thrust the issue into the national arena, they have highlighted the need for a remedy that is national in scope. Anything less than this would be a Pyrrhic victory.
This is not to suggest that we should scrap federalism or refuse to recognize the legitimate role of the judiciary in our system of government. Great care must be taken in curbing the Court and in formulating a coherent and prudential theory of state-national relations.24 These matters clearly call for thought of the highest order. In saying this, we end where we began: the abortion controversy brings into focus the full range of our civilizational, as well as constitutional, crises. That our political order would sanctify abortion on demand as a constitutional right reflects the depth of these crises. And from this we know that the task of restoring our moral and constitutional order will not be easy.
Students interested in the American political tradition will find an abundance of primary materials, most of which have been put into collections that are readily available. These primary materials are indispensable for a full understanding of many issues and questions that have arisen concerning the origins of our constitutional system, such as: what values were uppermost in the minds of the Founders? What is the relationship between these values and the constitutional forms and processes? What was the intended relationship between the branches of government? What were the anticipated spheres of authority for the state and national governments? At still another level, these materials are important for discovering the sources of the institutions and values that have played an important role in our tradition and for tracing the evolution of these institutions and values over the course of our history.
Among the more important of these collections is The Records of the Federal Convention of 1787, edited by Max Farrand, rev. ed., 4 vols. (New Haven: Yale University Press, 1937). This collection contains Madison’s notes of the proceedings of the Philadelphia Convention, as well as the partial notes of other delegates, and the correspondence, speeches, and writings of the delegates after the Convention that bear upon the meaning of the Constitution. A new volume that replaces the original fourth volume of Farrand is Supplement to Max Farrand’s the Records of the Federal Convention, edited by James Hutson (New Haven: Yale University Press, 1988). The Debates in the Several State Conventions on the Adoption of the Federal Constitution, edited by Jonathan Elliot, 5 vols. (Philadelphia: J.B. Lippincott Co., 1836), contains notes of the Philadelphia deliberations, important documents relating to constitutional interpretation, and the available debates of the state ratifying conventions. It has been reprinted by the Lippincott Co. (1891) and Burt Franklin (1974). James McClellan and the late M. E. Bradford have produced two volumes (II and III) of a projected seven-volume undertaking to revise and enlarge the original Elliot volumes. Volume II, The Federal Convention of 1787 (Richmond: James River Press, 1991) offers interesting biographical information on each of the delegates to the Philadelphia Convention. III, Debates in the Federal Convention of 1787 as Reported by James Madison, provides an extensive and highly useful index to the Philadelphia deliberations. A widely used one-volume collection of official documents relating to the Philadelphia Convention and its deliberations is Documents Illustrative of the Formation of the Union of the American States, edited by Charles C. Tansill (Washington, D.C.: Government Printing Office, 1927).
The Founders’ Constitution, edited by Philip B. Kurland and Ralph Lerner, 5 vols. (Chicago: University of Chicago Press, 1987), provides historical materials relating to the major themes of the Constitution, as well as a wide variety of materials that bear upon the meaning of each section of the Constitution and Bill of Rights up to 1835. For an exhaustive survey of the English and colonial sources of the Bill of Rights, see The Roots of the Bill of Rights, edited by Bernard Schwartz, 5 vols. (New York: Chelsea House, 1980). The definitive documentary history relating to the formulation and adoption of the Bill of Rights is Creating the Bill of Rights, edited by Helen Veit, Kenneth Bowling, and Charles Bickford (Baltimore: Johns Hopkins University Press, 1991).
Colonial charters, early state constitutions, and related documents are found in The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the United States of America, edited by Francis N. Thorpe, 7 vols. (Washington, D.C.: Government Printing Office, 1907). A readily available source of colonial charters, acts, orders, and regulations is Foundations of Colonial America, edited by W. Keith Kavenagh, 6 vols. (New York: Chelsea House, 1983). For materials relevant to the revolutionary period and beyond, see Sources and Documents Illustrating the American Revolution, 1764–1788, and the Formation of the Federal Constitution, 2nd ed., edited by Samuel Eliot Morison (Oxford University Press, 1965).
Important for understanding the political thinking of those opposed to the adoption of the Constitution is The Complete Anti-Federalist, edited by Herbert J. Storing, 7 vols. (Chicago: University of Chicago Press, 1982). Aside from being the most comprehensive collection of Antifederalist writings, Volume I contains a lengthy essay titled, “What the Anti-Federalists Were For.” The best thought of the Antifederalists is also available in single volumes: The Essential Antifederalist, edited by W. B. Allen and Gordon Lloyd (Lanham, Maryland: University Press of America, 1985) and The Anti-Federalist, An Abridgement (of the Storing edition), edited by Murray Dry (Chicago: University of Chicago Press, 1985).
An interesting collection that highlights the issues dividing the Federalists and Antifederalists during the ratification struggle is The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification, edited by Bernard Bailyn, 2 vols. (New York: Library of America, 1993). For the most extensive collection of political sermons, speeches, and pamphlets of the formative years of the republic, see American Political Writing during the Founding Era, 1760–1805, edited by Charles S. Hyneman and Donald S. Lutz, 2 vols. (Indianapolis: Liberty Fund, 1983). Interesting, but far less comprehensive, is Pamphlets on the Constitution of the United States, 1787–1788, edited by Paul Leicester Ford (New York: Da Capo Press, 1968).
Many shorter one-volume works present the significant writings of major individuals, primary materials that concern important constitutional issues, and official documents. Comprehensive works of this nature that span our history include: Documents of American History, edited by Henry Steele Commager, 7th ed. (New York: Appleton-Century-Crofts, 1963) and Free Government in the Making, edited by Alpheus Thomas Mason and Gordon E. Baker (New York: Oxford University Press, 1985). Other edited works contain the writings of notable individuals of the founding period. The American Heritage Series (New York: Liberal Arts Press), under the general editorship of Oskar Priest, has published: Alexander Hamilton: Selections Representing His Life, His Thought, and His Style, edited by Bower Aly; The Political Writings of John Adams, edited by George A. Peek, Jr.; The Political Writings of Thomas Jefferson, edited by Edward Dumbauld; and Thomas Paine: Common Sense and Other Political Writings, edited by Nelson F. Adkins. More comprehensive works along these lines are: George Washington: A Collection, edited by W. B. Allen (Indianapolis: Liberty Fund, 1988) and The Mind of the Founder: Sources of the Political Thought of James Madison, edited by Marvin Meyers (Hanover, New Hampshire: University Press of New England, 1982). The political thought of this era in another domain is found in Political Sermons of the American Founding Era: 1730–1805, edited by Ellis Sandoz (Indianapolis: Liberty Fund, 1991).
Debates over the meaning of key provisions of the Constitution in the first Congresses are presented in A Second Federalist: Congress Creates a Government, edited by Charles S. Hyneman and George W. Carey (Columbia: University of South Carolina Press, 1967). A very useful one-volume compilation that brings together the entire Congressional debate over the Fourteenth Amendment, as well as over the less controversial Thirteenth and Fifteenth, is The Reconstruction Amendments’ Debates, edited by Alfred Avins (Richmond: Virginia Commission on Constitutional Government, 1967).
The interpretive literature dealing with the American political tradition has swelled enormously in the last thirty years as historians and political scientists, no longer preoccupied with seeking causes and motivations in the realm of economic and social “forces,” have increasingly turned their attention to discovering the values, ideals, and theories that have shaped the foundations of our constitutional order. Differences in emphasis, focus, or approach form the basis for categorizing interpretations, so that it is now customary to speak of schools of thought concerning the theories and values that have shaped our political tradition. The differences between these schools of thought are so significant that some despair of ever achieving scholarly consensus concerning the sources and nature of our constitutional heritage. The reason for this despair should be evident even from our brief survey.
Since the publication of Bernard Bailyn’s The Ideological Origins of the American Revolution (Cambridge: Harvard University Press, 1967), emphasis has been placed on the role that the values of “classical republicanism” played in the years leading up to and immediately following independence. Two significant works that advance this view in distinct ways are J. G. A. Pocock’s The Machiavellian Moment (Princeton: Princeton University Press, 1969) and Gordon Wood’s The Creation of the American Republic (Chapel Hill: University of North Carolina Press, 1969). Pocock writes of the “Machiavellian moment” in the American tradition that appeared at the time of the Revolution, a moment when the classical republican virtues—e.g., the practice of sublimating individual wants and desires to the common good—prevailed among the citizenry. For his part, Wood sees the abandonment of the classical republican values, which were dominant at the time of the Revolution, with the adoption of the Constitution.
The classical republican approach is, in general, a more elaborate variant of the progressive depiction of our Founding (see the Introduction to this book). One cannot help but note, for example, that classical republicanism clearly bears a very close relationship to the model of French radicalism presented by Vernon L. Parrington, a construct greatly influenced by Rousseau’s theories and concepts. Moreover, like the progressive approach, the classical republican portrays the Constitution as a retreat from the loftier and more humane values that inspired the Revolution, paralleling in this regard James Allen Smith’s view of the Constitution as a “reactionary” document, designed to thwart the “democratic” aspirations of the people. Both, in other words, advance the proposition that there is a radical discontinuity in the American political tradition.
In two important respects, the classical republicans stand in sharp contrast to those generally known as “Straussians” —students and scholars profoundly influenced, either directly or indirectly, by the teachings of the late Professor Leo Strauss. First, despite differences among Straussians over how Locke’s writings should be interpreted, they regard his teachings concerning natural rights and the consent of the governed, rather than the values of classical republicanism, as central to the American Founding. They find these teachings set forth in the Declaration of Independence, particularly the second paragraph whose formulation of rights, “life, liberty, and the pursuit of happiness,” closely parallels Locke’s “life, liberty, and property.” Consequently, some Straussians view our Founding as influenced primarily by “modern” political philosophy, whose ends are not so lofty or ennobling as those set forth in classical thought. For a range of Straussian perspectives on this score, see Thomas Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: University of Chicago Press, 1988); Harry V. Jaffa, How to Think about the American Revolution (Durham, N.C.: Carolina Academic Press, 1978); and certain essays, particularly that by Martin Diamond, in The Moral Foundations of the American Republic, 2d ed., edited by Robert H. Horwitz (Charlottesville: University of Virginia Press, 1979). Second, the Straussians view the Constitution teleologically, as an instrument designed to secure and advance the values and principles of the Declaration, particularly equality, inalienable rights, and consent of the governed. In this regard see Walter Berns, Taking the Constitution Seriously (New York: Simon and Schuster, 1987) and the collected writings of Martin Diamond, As Far as Republican Principles Will Admit, edited by William A. Schambra (Washington, D.C.: AEI Press, 1992).
Scholars who consider the philosophers of the Scottish Enlightenment as the major influence on the founding era form still another school of thought. Garry Wills, in his Inventing America: Jefferson’s Declaration of Independence, endeavors to show how Scottish thought determined the content and character of the Declaration of Independence through its influence on Jefferson. In Explaining America: The Federalist (New York: Doubleday and Co., 1981), a work dedicated to Douglass Adair, Wills argues that both Hamilton and Madison, as authors of The Federalist, also reflect this Scottish influence. For the works of Douglass Adair, see Fame and the Founding Fathers: Essays by Douglass Adair, edited by Trevor Colbourn (New York: W.W. Norton, 1974).
The most interesting, informative, and heuristic accounts of the foundations of our political tradition, in my judgment, are to be found in works outside these schools of thought, works whose approaches are far more eclectic. This category includes Forrest McDonald’s trilogy: We the People: The Economic Origins of the Constitution (Chicago: University of Chicago Press, 1958); E Pluribus Unum: The Formation of the American Republic, 1776–1790 (Indianapolis: Liberty Fund, 1979); and Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, Kansas: University Press of Kansas, 1985). The final volume evaluates and places in perspective the economic and political theories that shaped the minds of the Framers. Two excellent works that explore the contributions of the classics, Christianity, and medieval thought to our political tradition are Ellis Sandoz, A Government of Laws: Political Theory, Religion, and the Founding (Baton Rouge: Louisiana State University Press, 1990) and Russell Kirk, The Roots of American Order (La Salle, Illinois: Open Court, 1974).
Other notable works deal primarily with the organic political experiences of Americans in endeavoring to secure self-government with ordered liberty. Among these are: Willmoore Kendall and George W. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1970); Donald Lutz, The Origins of American Constitutionalism (Baton Rouge: Louisiana State University Press, 1988); and Andrew C. McLaughlin, The Foundations of American Constitutionalism (New York: New York University Press, 1932). The works of M. E. Bradford stress the evolutionary, and distinctly non-ideological, character of our constitutional development: A Better Guide than Reason: Studies in the American Revolution (La Salle, Illinois: Sherwood Sugden, 1979) and Original Intentions: On the Making and Ratification of the United States Constitution (Athens: University of Georgia Press, 1993). Other approaches, while focusing on the American experience, find the roots of our institutions in Western thought and practice, primarily in the English tradition. James McClellan’s Liberty, Order, and Justice (Washington, D.C.: Center for Judicial Studies, 1989) is a lucid account of the evolution of our constitutional principles from the English tradition. An earlier and noteworthy effort in this genre is C. Ellis Stevens, Sources of the Constitution of the United States Considered in Relation to Colonial and English History (New York: The Macmillan Co., 1929). Also of great interest in this connection are the essays in Magna Carta: Ancient Constitution and the Anglo-American Tradition of the Rule of Law, edited by Ellis Sandoz (Columbia: University of Missouri Press, 1993).
Turning to the Supreme Court, there are several books that are critical of its interpretations and activism. These include Christopher Wolfe’s The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law (New York: Basic Books, 1985). Wolfe critically analyzes the arguments of major noninterpretivists, comparing their positions with the traditional view of judicial review. Gary L. McDowell has written two books highly critical of the Court’s expanded role and its use of equity powers. See Curbing the Courts: The Constitution and the Limits of Judicial Power (Baton Rouge: Louisiana State University Press, 1988) and Equity and the Constitution: The Supreme Court, Equitable Relief, and the Constitution (Chicago: University of Chicago Press, 1982). Robert Bork’s Tempting of America: The Political Seduction of the Law (New York: Free Press, 1990) presents a lucid explanation of the “originalist” position regarding constitutional interpretation. Three works by Raoul Berger deal with the effect of judicial neglect of original intent in critical areas: The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989); Federalism: The Founders’ Design (Norman: University of Oklahoma Press, 1987); and Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard University Press, 1977). L. Brent Bozell’s The Warren Revolution (New Rochelle, New York: Arlington House, 1966) is one of the first works to challenge the supremacist presumptions of the modem Court. As noted in the text, the pioneering effort in exploring the implications of modem judicial supremacy is Charles S. Hyneman’s The Supreme Court on Trial (New York: Atherton Press, 1963).
For views that differ significantly from those of the preceding authors regarding the Supreme Court and its role, see Laurence Tribe, Constitutional Choices (Cambridge: Harvard University Press, 1985) and Michael Perry, The Constitution, the Courts, and Human Rights (New Haven: Yale University Press, 1982).
The Constitutional Convention and its proceedings have been the subject of a number of highly readable works. Among the more popular of these is Clinton Rossiter, 1787: The Grand Convention (New York: Harcourt, Brace and Co., 1966); Catherine Drinker Bowen, Miracle at Philadelphia (Boston: Little, Brown and Co., 1966); and Carl Van Doren, The Great Rehearsal (New York: Viking Press, 1948). A shorter work that stresses the frictions and compromises at the Convention is Max Farrand, The Framing of the Constitution of the United States (New Haven: Yale University Press, 1913). A scholarly and legalistic work that provides a day-to-day account of the proceedings and traces the origins and meanings of the constitutional provisions is Charles Warren’s The Making of the Constitution (Boston: Little, Brown and Co., 1937).
Recent works on The Federalist include Securing the Revolution: The Federalist Papers and the American Founding, edited by Charles R. Kesler (New York: Free Press, 1987). This volume consists of illuminating essays on various aspects of The Federalist, principally by Straussians. In The Political Theory of “The Federalist” (Chicago: University of Chicago Press, 1984), David F. Epstein focuses on Publius’s quest for a republican government and the sources that influenced his thinking. George W. Carey, The Federalist: Design for a Constitutional Republic (Urbana: University of Illinois Press, 1989) focuses on Publius’s understanding of republicanism, federalism, the separation of powers, and constitutionalism. Of use to students of The Federalist is Concordance to THE FEDERALIST (Middletown, Connecticut: Wesleyan University Press, 1980) by Thomas F. Engeman, Edward J. Erler, and Thomas B. Hofeller.
Robert A. Rutland, The Birth of the Bill of Rights (Chapel Hill: University of North Carolina Press, 1955) traces the development of rights under the post-revolutionary state governments. A book that is somewhat dated but whose appendices are extremely valuable for understanding the character of the rights proposed by the ratifying conventions is Edward Dumbauld’s The Bill of Rights and What It Means Today (Norman: University of Oklahoma Press, 1957). Insightful and informative essays on the original understanding of the provisions of the Bill of Rights, along with the interpretations given to them today by the modern courts, are contained in The Bill of Rights: Original Meaning and Current Understanding, edited by Eugene Hickok (Charlottesville: University of Virginia Press, 1991).
Among the excellent works that historically and analytically explore the principles underlying the American Constitution, see M. J. C. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967); William B. Gywn, The Meaning of the Separation of Powers (New Orleans: Tulane University Press, 1965); S. Rufus Davis, The Federal Principle: A Journey Through Time in Quest of a Meaning (Berkeley: University of California Press, 1978); K. C. Wheare, Federal Government, 4th ed. (Westport, Connecticut: Greenwood Press, 1980); and Federalism: Infinite Variety in Theory and Practice, edited by Valerie Earle (Itasca, Illinois: F. E. Peacock, 1968).
For a more general survey of our constitutional development, see Alfred H. Kelly, Winfred A. Harbison, and Herman Belz, The American Constitution: Its Origins and Development, 6th ed. (New York: Norton, 1983) and Andrew C. McLaughlin, A Constitutional History of the United States (New York: D. Appleton-Century Co., 1935). Comprehensive works dealing with American political thought include: Charles E. Merriam, A History of American Political Theories (New York: The Macmillan Co., 1928); Francis Graham Wilson, The American Political Mind (New York: McGraw Hill, 1949); and A. J. Beitzinger, A History of American Political Thought (New York: Dodd, Mead, and Co., 1972).
The text of this book was set in a type called Times Roman, designed by Stanley Morison for the London Times, and first introduced by that newspaper in 1932. The Times was seeking a typeface that would be condensed enough to accommodate a substantial number of words per column without sacrificing readability and still have an attractive, contemporary appearance. It is one of the most popular typefaces in use for book work throughout the world and quite justifies the claim made for it of being the most important type design of the twentieth century. Stanley Morison has been a strong forming influence, as typographical advisor to the English Monotype Corporation, as director of two distinguished English publishing houses, and as a writer of sensibility, erudition, and keen practical sense.
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[* ]On this point see: Douglass Adair, “The Tenth Federalist Revisited,” in Fame and the Founding Fathers: Essays by Douglass Adair, ed. Trevor Colbourn (New York: W. W. Norton, 1974).
[** ]The Unmaking of a Mayor (New Rochelle, N.Y.: Arlington House, 1977).
[* ]The Writings of James Madison, ed. Gaillard Hunt, 9 vols. (New York: G.P. Putnam’s Sons, 1900–1910), IX, 606. Hereafter cited as Writings.
[* ]The Antifederalist Papers, ed. Morton Borden (East Lansing: Michigan State University Press, 1965), 228.
[** ]The Annals of Congress, 1st Congress, 1st Session, April 8, 1789, 441.
[* ]We should not forget in this connection how the reflexive principle, which results from the separation of powers, militates against oppressive, partial, or unjust laws.
[* ]For the contents of such an amendment see Francis Canavan, “A New Fourteenth Amendment,” Human Life Review 12 (Winter 1986). Father Canavan’s amendment would meet the criteria I set forth here for an effective solution to the problem of judicial supremacy.
[1 ]In the forceful and eloquent words of Malcolm Muggeridge: “We can survive energy crises, inflation, wars, revolution and insurrections, as they have been survived in the past; but if we transgress against the very basis of our mortal existence, become our own gods in our own universe, then we shall surely and deservedly perish from the earth.” “What the Abortion Argument is About,” Human Life Review 1 (Summer 1975), 6.
[2 ]For a more comprehensive elaboration of Madison’s solution see Ch. 2 above.
[3 ]Most certainly at the time of the Court’s decision the pro-abortionists were a minority. As Dean O’Meara puts it: “Not until the recent past did a small but clamorous group begin to agitate for abortion on demand. In Roe v. Wade the Court yielded to the pressure of this strident minority.” “Abortion: The Court Decides a Non-Case,” Human Life Review 1 (Fall 1975), 19. Moreover, the polls that purportedly show majority support for abortion have never been worded so as to indicate the full dimensions of the Court’s decisions and the practices that they condone.
[4 ]The relevant section of the Fourteenth Amendment is the first, which reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
[5 ]Justice Marshall’s statement in Barron v. Baltimore (1833), 7 Peters (U.S.) 243 is considered definitive on this matter.
[6 ]This is apparent, for instance, from the controversy surrounding the Alien and Sedition Acts (1798) which prompted the Virginia and Kentucky Resolutions, authored by Madison and Jefferson respectively. The issue at stake was not, as commonly supposed, freedom of speech and press. Rather it was whether the state or national government possessed the power to punish seditious libel. The opponents of the Acts argued that the first amendment precluded any national legislation in these areas. See Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (New York: Harper and Row, 1963).
[7 ]In this regard, it is frequently noted that the very same Congress that passed the Fourteenth Amendment also provided racially separated schools in the District of Columbia. Unquestionably, there is little resemblance between what the framers of the Fourteenth Amendment intended and the various judicial interpretations of it over at least the last sixty years. On this see Charles S. Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963), Ch. 15. See also, Charles Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding,” Stanford Law Review 5 (1949–50).
[8 ]For a detailed and critical analysis of some of the more prominent Warren Court decisions, see L. Brent Bozell, The Warren Revolution (New Rochelle, New York: Arlington House, 1966), particularly Section 2, “The Warren Court in the Dock.”
[9 ]To the best of my knowledge, Charles Hyneman in The Supreme Court on Trial (see note 7 above, p. 185) first made this point (pp. 78–80). Also in Cooper v. Aaron, 358 U.S. 1 (1958), we find an assertion of judicial power unprecedented in our history, namely, that the Court’s interpretation of the Constitution is superior to and binding upon all other branches of government. This cannot be adduced from the language of the Constitution or its recognized principles.
[10 ]For a summary of the concerns over the extent of judicial powers prompted in large part by the abortion decision see “The Power of Our Judges—Are They Going Too Far?” U.S. News and World Report (January 19, 1976).
[11 ]There is, no doubt, reification involved in the modern uses of natural rights theory. These theories were originally useful in helping to describe in a simplified manner the legal structures and the status of the individual. However, what was originally a purely fictional account constructed for purposes of simplified explanation has, in the last century, increasingly assumed the status of reality. See Sir Henry Maine’s Popular Government (Indianapolis: Liberty Fund, 1976).
[12 ]We Hold These Truths (New York: Sheed and Ward, 1960), 321.
[13 ]On this point see John Courtney Murray’s “Law or Prepossessions?” in Essays in Constitutional Law, ed. Robert G. McCloskey (New York: Random House, 1957).
[14 ]John Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971).
[15 ]On this general matter see M. J. Sobran, “The Abortion Sect,” Human Life Review 1 (Fall 1975).
[16 ]The Ninth Amendment states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Once it is unleashed there is no limit to what we can expect, given the number and nature of “rights” asserted in our society at the present time.
[17 ]A good deal of the Southern resistance to Court-ordered integration was, in fact, based on the firm conviction that the courts were acting ultra vires in their pronouncements. We know of many Southerners who during the 1950s staunchly maintained that they would obey a law passed by Congress but not the edicts of the courts. We may assume that this feeling was widely shared, if we judge by Southern compliance with the civil rights legislation of the 1960s.
[18 ]In what follows we diverge markedly from the views expressed by Professor John T. Noonan in “A New Constitutional Amendment,” Human Life Review 1 (Winter 1975). We certainly do not mean to imply that Professor Noonan is a secular liberal.
[19 ]The views of Arthur S. Miller and Ronald F. Howell best illustrate what we are referring to here. “The role . . . of the Supreme Court in an age of positive government must be that of an active participant in government, assisting in furthering the democratic ideal.” And, they continue, “judicial decisions should be gauged by their results and not by either their coincidence with a set of allegedly consistent doctrinal principles or by an impossible reference to neutrality of principle.” And, in the realization of the goals associated with secular humanism, they write, “the judiciary has as important a role to play as any other organ of government. Perhaps even more important than the legislature or the executive.” “The Myth of Neutrality in Constitutional Adjudication,” University of Chicago Law Review 27 (1960), 666.
[20 ]Section 5 reads: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
[21 ]Our position on this is set forth in Willmoore Kendall and George W. Carey, The Basic Symbols of the American Political Tradition (Baton Rouge: Louisiana State University Press, 1970), Ch. 8.
[22 ]Aside from this there is the added advantage that legislation would allow for greater flexibility than a constitutional amendment in making needed adjustments as circumstances might require.
[23 ]For a contrary view see Professor David Louisell, “A Life-Support Amendment,” Human Life Review 1 (Fall 1975).
[24 ]In our thinking about these matters, we must not assume a dogmatic stance towards federalism, as if the Founding Fathers had provided us with neat answers to the relative domain of state-national authority. Quite the contrary. They offer no clear-cut answers, but rather depend upon the prudence and good sense of future generations to make reasonable decisions on this matter. See Federalist 37, 39, and 46. See also, George W. Carey, “Federalism: A Defense of Political Processes” in Federalism: Infinite Variety in Theory and Practice, ed. Valerie Earle (Itasca, Illinois: F.E. Peacock Publishers, 1968). Likewise, we should be most reluctant ever to accept the judicial philosophy of Oliver Wendell Homes, Jr. On this see Walter Berns, “Oliver Wendell Holmes, Jr.” in American Political Thought, ed. Morton J. Frisch and Richard G. Stevens (New York: Scribner’s, 1970).