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Brave New World: The Challenges of Overturning Roe v. Wade

With Anthony Kennedy’s retirement, and the feeble and decrepit Ruth Bader Ginsburg presumably not much longer for this world, the Catholic Right is now in a time of great temptation. The first vacancy will most likely be filled by the solid originalist Brett Kavanaugh, and a following appointment could allow the forces of reaction to do some real damage. Rare are the times that the Right even has the opportunity to be tempted, so feckless have they been in standing up to Leftist perversion, yet now it is not only possible but even probable that the most egregiously illegal decisions made by the Court over the course of Kennedy’s term will be overturned. Not only this, but the experience of the despicable and craven appointees like Sandra Day O’Connor, David Souter, and Kennedy himself, has given conservatives a fighting spirit, and a desire to see the Court not only stand in the way of leftist advance, but actually lead an assault of its own.

Thus, we see in pieces like Matthew Schmitz’s recent article in the Catholic Herald the call not only to overturn Roe v. Wade, but to go even further and say that the Constitution positively forbids abortion. This position has support amongst many politically minded Catholics, namely the “integralists,” those Catholics who wish to entrench politics in Catholic principles and bring our strange republic back to the wellsprings of Christendom. The Left has for decades been using a perverse idea of natural law to force its changes through the judiciary. Why should the Catholic right not use the Supreme Court to enforce real Natural Law, now that the power may exist?

It’s worthwhile, first, to take a step back and look where we are. The response to Kennedy’s retirement is a fascinating glimpse into the totemic cult we call constitutional jurisprudence, for our obsession with the judiciary, and our almost universal acquiescence to the power which those nine old fools largely usurped for themselves without the least opposition, is one of the most fascinating characteristics of the American empire. Even the most supposedly hardheaded analysts have come to imbue the Constitution with almost mystical qualities, and the Court justices with a kind of shamanistic authority that can change the very makeup of our nation itself. This is in fact required of anyone who wants to avoid the obvious truth: that Americans live under a tyranny of judicial officers, a tyranny to which every other branch of government at every level, state and federal, has bowed, and blessed under specious deference to “rule of law.”

The primary modus operandi of this tyranny lies in the Fourteenth Amendment. This came about primarily in two ways: first through incorporation, or the notion that he rights guaranteed in the Bill of Rights were not particular to the federal government, but applied against the states as well. The Establishment Clause of the First Amendment, for example, did not prevent Massachusetts and Connecticut from having state churches at the time of the Constitution’s ratification. The process of incorporation, applied as haphazardly as it was, and based on such a spurious reading of the text as it is, has been the greatest silent coup ever effected on a supposedly free people.

The other way was through substantive rights, arising out of the Fourteenth Amendment’s Due Process and Equal Protection clauses. It was through specious readings of these provisions that we have achieved our current abortion regime.

One could argue about the exact logical contortions the Court used to get to this point, but it doesn’t actually matter. As Raoul Berger proved beyond any reasonable doubt, the Fourteenth Amendment was meant to do nothing more than put into the Constitution the Civil Rights Act of 1866, which guaranteed ex-slaves the most basic rights of national citizenship while making sure the black man’s rights to own property and enter into contract were not unduly constrained by the states. This was no little task, and it constituted a large part of the social transformation of the South. But it was far different from the Amendment conjured up by later courts, which banned racial discrimination in private contracts, required desegregation of schools, and ultimately legalized homosexual marriage.

There is little chance that any Court will roll back incorporation, illegal as it is. Yet there is a chance—a very good one—that Kavanaugh can be part of the majority that undoes Roe v. Wade and some of the other most egregious and unpopular policy prescriptions of the past sixty years. There was never any legal justification of Roe, and there is no defensible reason to retain the illegal holding.

But as noted above, there are a number of well-meaning conservative people who want to go a step further and find in the Fourteenth Amendment an absolute prohibition on all abortions. One suspects that social conservatives’ disappointment in President Trump’s failure to appoint Amy Barrett arose out of this feeling. In Machiavellian terms, this makes sense. The opportunity to wield power has arisen, so why not take it? Wasn’t this the lesson of Donald Trump’s election, that the right was no longer going to play according to the old terms of legalism and procedural scrupulosity? And so why shouldn’t the Fourteen Amendment’s guarantee of “life, liberty, and property” ban the very practice of abortion wholesale?

A part of the desire to find a prohibition against abortion in the Fourteenth Amendment likely arises out of fear. The pro-life movement is entering uncharted territory, and many of its weakness, hidden by the Court’s usurpation and the outlandish nature of our abortion laws compared to the rest of the world, are about to be exposed. If and when the Court strikes down Roe, the abortion issue will return to the states. Pro-lifers are likely to find that many of their erstwhile allies and their political support, while content to rail against late-term abortions, will not be as dependable when his state adopts an abortion law like, say, France’s, where abortion is prohibited after ten weeks. The abortion issue is a largely non-political, fringe issue in Western Europe because a compromise has been struck where neither side feels all that much guilt about getting most of what they want. How many American pro-lifers will remain once the issue arrives before legislatures and voters, when “respectable” people start wondering if civil peace isn’t worth more than a clump of cells? A reversal of Roe without a larger prohibition may expose the American pro-life movement as weak, and ultimately as fraught with cowards as any other cause on the Right.

But a Court finding a positive prohibition on abortion is not likely and, I would say, undesirable. The reason for this is simple: The Fourteenth Amendment was not meant to address abortion. The argument would seem to end there, for remember, our infallible Constitution (and even more infallible amendments) are merely trumped up statutes—policy prescriptions put down in plain English. Rather, even avowed originalists look at the Constitution as if they were the Church Fathers, poring over the prophets of old for confirmation of a coming messiah, as if the Fourteenth Amendment were written by the moral and intellectual exemplars of their day rather than a gang of frauds and fools.

Joshua Craddock has recently made the argument that the Fourteenth Amendment’s protection of “persons” did not include merely “walking around people,” as Justice Scalia once put it, but all biological humans, including those still residing in the womb. Craddock’s argument is convincing. Yet it does not take us all the way where we need to go if we wish to prohibit abortion based on the language of the Constitution. Simply arriving at a definition of what a “person” is for purposes of the Fourteenth Amendment does not answer what kinds of rights adhere to personhood, and in particular what legal rights inhered to unborn children, and which might conceivably require protection as a result. As Craddock notes, there was no absolute consensus among the states in 1868 as to when an unborn child’s right to life absolutely applied, or what remedy must apply to those who aimed to deny these rights. Even if we resolve to read the words of the Amendment in the most liberal fashion, we could not come to a consensus as to what those words actually prescribe.

To put it another way: The definition of “property,” as used in the Fourteenth Amendment is not ambiguous. Yet the rights inhering to property have changed drastically since 1868; for example, the right to exclude was greatly contracted by the Civil Rights Act of 1964. So while we can define our term, property, based on the original meaning of the text, we are still left searching for a reason why the rights inhering to property should be those same rights that inhered in 1868. In sum, even if we accept the definition of “property” or “person” from 1868, there is no reason to accept that the rights afforded to property and person have (or should have) remained in stasis without any other indication from the text. Craddock’s attempt at “originalism” cannot solve the problem he sets out to; even if we agree on a definition of personhood, attempting to assign the bundle of rights that existed to such persons 150 years ago (rather than 25, or 50, or 100 years ago) would be just as arbitrary as making up the law wholesale.

Any future court which finds a ban on abortion in its text will be no less dishonest than the revolving door of fools and frauds who have consistently found a right to slaughter their children within that short text. The reason for this is simple: the Constitution does not address abortion, and it does not address abortion for the same reason it does not address murder or rape. These were issues left to the states to enforce and regulate. It may very well be that the authors of the Fourteenth Amendment would have approved of a general ban on abortion, but we have no dispositive proof of this. The Fourteenth Amendment was not written to address abortion, and for anyone to claim that it was—whether to adopt a pro-abortion cause or one against abortion—is reading far beyond the clear intent of the amendment, and partaking in a kind of judicial alchemy, or a kind of usury, a creation of something out of which there was nothing before.

Maybe this call for restraint comes off as cowardice, an adherence to old forms which the Left has long abjured. But Catholics who support an aggressive policy need to consider their obligations, and the state of matters as they are. There is a more fundamental reason why Christians cannot succumb to the temptation of wielding the Fourteenth Amendment to promote meritorious policy causes at the expense of the text.

All political arguments are theological arguments stripped of real significance. And the most fundamental questions about legal interpretation parallel the most fundamental questions of the faith. Recall that the Islamic idea of God is not the Logos, whom we know in Christ. To the Muslim, God’s Will is not based on reason, but by the mere fact that God’s will is His will. In simplified terms, Catholics believe that God could create a stone so large that He could not move it, where a Muslim believes God is liable to change the rules of reality whenever He wishes. The Muslim conception of God is as a capricious tyrant. The Christian knows that his God is the Logos, the order of the universe, the great Idea apart from all corruption wrought by the Fall. Islam, of course, means submission; the Christian too must submit to the will of God, but as Our Lord taught us, the yoke is light precisely because by our submission, we better unite ourselves to The Way and the order of the universe.

Attempts at finding protections for babies in the Constitution may be facially commendable. But the very notion of the Constitution as a “living document,” one whose text can change meanings based only on the subjective perception of its interpreters, is inimical to any Christian project in deeper way than any individual law. At worst it suggests the fact that words on a page cannot express meaning, and that any kind of definition or measurement is impossible ab initio. And so in blatantly imposing Catholic concepts on a document that is not in any way, shape, or form a Catholic document, we are challenging not only the meaning of the text, but the power of words themselves.

There is also the question on how the public would justly respond. The idea that government requires the consent of the governed to be legitimate is a whiggish concept, of course. But if the claims Catholics make about Natural Law are true, it should not be that difficult to gain the consent to be ruled. To impose Catholic social teaching on a population raised from birth to believe contraception and abortion are rights granted to them by the Constitution will be perceived as tyrannical, and given what the Fourteenth Amendment actually says, she will be right. More broadly, there is no chance for any change in our abortion regime without a complete moral recrudescence. But this cannot occur without a general acknowledgement of objective moral law. But there will never be anything approaching a consensus on the law “written in the hearts of men” if we cannot even discern the plain meaning of laws written in plain English on the page. There are higher principles than even life and death, and giving words their plain meaning is one of them.

For this reason, any Christian serious about the objective nature of reality and law must respect legal text for what it is, not for what they might like it to be. As commendable as is the zeal of Schmitz and Craddock, their ultimate goal would undermine the very legitimacy, based in reason, which they must seek in order to have a genuine Catholic polity. Whether Catholics and integralists like it or not, they have a duty and obligation not to usurp powers they don’t have; in fact, a failure to recognize this will only make the Natural Law appear to the great majority of people no less arbitrary than the edicts of bloviating moss-head Justice Kennedy and his compeers.

There has probably never been a more efficacious mediocrity than Anthony Kennedy. There have been many feckless royals and bureaucrats, but they usually operated by delegating authority to competent subjects. Kennedy, owing to our corrupt constitutional system, was able to be the despot without even the personal stamina it takes for monsters to rise to a place of power. The “mystery passage” in Casey v. Planned Parenthood is not only evil, but is the stupidest thing ever written. That a legal precedent can claim that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” is so inane that it threatens the very notion of thing-ness; it is so vacuous that to contemplate it is to hover beside the evisceration of selfhood and intellect, to succumb to a kind of idiotic nirvana; to even say it aloud is embarrassing, but to the man who knows this hackwork has been used to murder millions of babies, who can look at the empty words without a snarl? Kennedy was wholly beholden to forces bigger than himself, forces that he was too stupid to understand, as brainless as a pop song, as faceless as a corpse, as scrupulous as a middle manager, and ultimately a pathetic nothing who forced a generation to partake of his nihilism—those not snuffed out owing to his empty attempts at higher consciousness and weak poetry.

Kennedy will leave no distinct trace in the judiciary; he was merely a dead cell in our empire based on lies and treachery, the anti-Logos of liberalism. The only antidote to this is adherence to the truth, that which is seen on high in the Logos, but is lived in calling things as they are. Perhaps it’s a credit to Kennedy that the Justice was blind to what a fool he was, but if Christians are really intent on burying his wicked legacy, they must act zealously with the restraint Kennedy never could.

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