Archive: Contempt of Court
The Supreme Court’s Lawless Law Invites Lawlessness
By Richard John Neuhaus
The following is excerpted from an address delivered in late June to the National Right to Life convention in Milwaukee.
I want to spend some time revisiting the 1992 Planned Parenthood v. Casey decision, not only because it supports and expands the lethal logic of Roe v. Wade but because it so clearly exemplifies the nature of the crisis that is upon us. I am struck by the fact that, since Casey, some very careful and thoughtful people are raising questions about the moral legitimacy of our constitutional order. Perhaps that is not surprising, for the five justices in the majority claim that their decision must be followed if the legitimacy of the court, and of law itself, is to be maintained. Similarly, the four justices dissenting recognize the ominous character the question engages, comparing the decision with the infamous Dred Scott decision of 1857 that tried to write human slavery into the Constitution.
The questions raised by Casey are every bit as solemn as those pondered by Lincoln at Gettysburg. If the interpretation of the present court majority finally prevails, it may well be that thoughtful citizens will conclude that this constitutional order is an illegitimate regime, and that they are absolved from obedience to its laws. Perhaps this grand political experiment—what the Founders called a novus ordo seclorum, a new order for the ages—has turned out to be a failed experiment. Experiments do fail, empires do collapse, republics do decay, and democracies, too, can bring about their own ruin.
Nonetheless, I believe that we—as individuals and as a movement—should do our best to resist the conclusion that it is all over with the American experiment. Our purpose is to recall America to its constituting truths. We must persist in believing, so long as it is believable, that the lethal logic of Roe v. Wade is an aberration; that it is neither a true account of the Constitution nor of the people that we have become. And yet, as hopeful as we must be, we cannot deny the solemnity of the questions that have been raised.
The Casey decision is a decision which comes down on one side of the culture wars in America. More than for politics, for law, for economics—the great battle is for the culture. What do we mean by the culture?
For some time now we have been engaged in a war over the culture, which is nothing less than a war over what kind of nation, what kind of people, we will be. It is not a war of our choosing. The war was declared—it is daily and exultantly redeclared—by the proponents of myriad revolutions who presume to know better than we how we ought to live; and they do not hesitate to employ the power of the state to enforce conformity to their designs. For some time now we have been two nations: one concentrating on rights and laws, the other on rights and wrongs; one radically individualistic and dedicated to the actualized self, the other communal and invoking the common good; one viewing law as the instrument of the will to power and license, the other affirming an objective moral order by which we are obliged; one given to private satisfaction, the other to familial responsibility; one typically secular, the other typically religious; one elitist, the other respectful of the common sense of common people.
Of course that description is drawn with broad strokes, but it roughly describes the lines of the culture war in which we are engaged. The reality is evident enough to anyone who attends to the increasingly ugly rancor that dominates and debases our public life. And, of course, for many Americans the lines of the culture war run through their own hearts. As the Casey decision makes evident, the lines also run through the Supreme Court. But the five justices who made up the Casey majority leave no doubt about where they stand. The decision is a clear declaration of belligerency on one side of the culture wars.
The decision endorses the radically individualistic notion of the self-constituted self. The abortion liberty is necessary, we are told, in order “to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” I am told that among constitutional lawyers this is called “the mystery passage” of the decision. The justices wax theological about the mystery of human life in total disregard of precisely that: the mystery of human life. For the court, the mystery of human life is to be defined by the individual; for most of us, the mystery of human life is discovered as a gift. For the court, authentic personhood requires freedom from any encumbering community; for most of us, to be a person is to be a person in community.
When I said that the court waxed theological, I did not mean it simply as a figure of speech. Although the three authors of the majority opinion—Kennedy, O’Connor, and Souter—seem to be blithely unaware of it, they are proposing the establishment of what might be called a state religion. Religion is commonly defined as that activity which deals with “ultimate concerns.” It is hard to get more ultimate than the “concept of existence, of meaning, of the universe, and of the mystery of human life.” In most religions—Judaism and Christianity, for instance—the self is understood in relationship to other realities—in relationship to community, normative truth, and even to revelation. The court, however, recognizes no other reality than the isolated individual defining his or her reality.
Permit me to be entirely candid: The Supreme Court’s depiction of the self, of community, and of what is meant by ultimate meaning is incompatible with Christianity, Judaism, Islam, and every tradition that espouses normative truth. Not incidentally, it is also incompatible with the actual experience of almost everybody on earth. In effect, although not in name, the Supreme Court is proposing a religion. For those of us who already have a religion, it is obviously a false religion. As distressing as this state of affairs may be, we should not be entirely surprised by it.
It has been said that if you can justify abortion, you can justify anything. There is a deep truth in that. If you set out to justify the attack on something so primordial, so given, so foundational to human community as a mother’s love and responsibility for her child; you have to come up with a new explanation of fundamental reality, a new worldview, and finally a new religion. The Supreme Court of the United States has come up with the Religion of the Sovereign Self.
To be sure, it is not really a new religion. It is the belief to which human beings have been prone since the disastrous afternoon in the garden, when humanity began its long and bloody march through history singing, “I did it my way.” The creed of the autonomous self was promulgated by the radical secularists of the Enlightenment, and is still preached by their disciples today. Against that creed, the founders of this nation declared, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness.”
In one of the most stunning passages of a stunning decision, an imperial court argues that, since it has chosen sides in the culture wars, the American people are obliged to submit to its decision. Listen to the court: “Where, in the performance of its judicial duties, the court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe … its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
Let it be clear beyond doubt that we, together with millions of other Americans, do not accept the so-called mandate of this court. Neither do the four dissenting justices accept it. They call it an “Orwellian” decision and invite a comparison with Nazism in which our court, as Fuhrer, demands the obedience of the Volk. The court says that citizens will be “tested by following” its decision. Suddenly it is not the court, but the American people who are on trial. Perhaps it is even contempt of court to hold this decision in the contempt that it deserves. If that is the case, let the record show that we are in contempt of court.
We as a country have been this way before. Remember that at the time of Dred Scott, all three branches of government were in the hands of the pro-slavery forces. (And it is perhaps encouraging to remember that James Buchanan was a one-term president.) Before and after he became president, Lincoln strove for the overturn of Dred Scott. He failed, and war came. There will not be a civil war like the last one, but the destructive effects of alienation and anger are already evident in our society as a result of law that is divorced from constitutional text, moral argument, and democratic process. The ever fragile bonds of civility are unravelling. Lawless law invites lawlessness.
The four justices dissenting from Casey are not alarmists, but they are raising an alarm. Those who refuse to listen bear responsibility for the consequences. The justices wrote: “Against [this decision] are the twin facts that the American people are not fools.” It is in large part up to those of us who are assembled here to make sure that the American people will not forever, will not for long, be denied democracy or treated like fools.
Richard John Neuhaus is the editor-in-chief of First Things: A Monthly Journal of Religion and Public Life (156 Fifth Avenue, Suite 400, New York, NY 10010), and the author of several books including The Naked Public Square and Freedom for Ministry.
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