Judges in our own time have shifted radically from the understanding of the Founders

 because they no longer profess to understand what constitutes a "man" . . . 

 the judges have concluded that because there is no "objective" standard of what constitutes a human being, 

the decision will be left in the hands of people with political power. 

And when they flex their power, in reaching a judgment, 

that judgment will be tested by 

no standard of right or wrong

 apart from power itself.  

 

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Moral truths are necessary in evolution of law

By HADLEY ARKES

When I was asked to do a piece for a magazine on the Holocaust Museum in Washington, D.C., I asked my wife to come along with me. But she had lost family in the camps, and she was not ready to see the scenes played out in vivid pictures, still and moving. I then asked my friend Alan Greenberg, the architect, to come with me.

As we walked through the museum, we took a turn, suddenly coming upon a scene encountered by many other visitors to the museum: a vast vat filled with shoes. They were the shoes of the victims, collected by the Nazis as they sought to extract anything they could use again or sell. And what came flashing back instantly, at that moment, were the searing lines of Justice John McLean, in his dissenting opinion in the Dred Scott case:

"You may think that the black man is merely chattel, but 'He bears the impress of his Maker, and is amenable to the laws of God and Man; and he is destined to an endless existence' " (Dred Scott v. Sanford, 1857).

He has, in other words, a soul, which is imperishable; it will not decompose when his material existence comes to an end. The sufficient measure of things here is that the Nazis looked at their victims and thought that the shoes were the real durables.

I have several colleagues, in the academy, who have taken as their own signature tune that line from Nietzsche, amplified by Dostoyevsky, that "God is dead" and everything is permitted. They are the people of large natures, with sensitivities cultivated to the most exacting liberal temper, and so they are prepared to engage their sympathies for all species of hurts suffered by the mass of mankind. When the conversation turns, say, to a homeless man in the gutter, they are quick to insist that there is about that man, even in his diminished state, an irreducible human dignity. There is still, about his life, a certain sanctity that commands our concern. And we ask, "Sanctity?" Do they mean, of the sacred? Does that not rather point to -- well, You-know-who?

We find ourselves in a curious situation in which so much of our language of politics and law is rooted in layers of moral understanding and religious persuasion, which have departed from the recognition of most of our people. My colleagues speak firmly of "rights," or injuries done to "persons." They seem serenely unaware that their language here is grounded in understandings that they have professed, at least, to have rejected long ago.

Even these academics would have to concede that they cannot possibly give the same account of the wrong of slavery, or the wrong of the Holocaust, that McLean was in a position to give. Some of those homeless characters, living in the streets, might have broken their own lives, and the victims of racism might be reduced and abased; and yet, McLean could look through it all and see beings who were made in the image of something higher. The modern liberal will proclaim his social sympathy and strike a militant posture in defense of rights, but he can no longer explain why that biped who conjugates verbs should be the bearer of "rights."

The malady I am describing here is not confined to those rare quarters of the academy. Over the past 25 years, the man on the street and the political class have absorbed the moral relativism retailed in the academy. It is a "soft" relativism, a receding from "judgmentalism." As with the academics, they can no longer offer a moral defense of those rights. Worse than that, they have talked themselves into premises quite at odds with the premises of the American Founders. They have talked themselves out of the premises on which their own freedom rests.

Judges in our own time have shifted radically from the understanding of the Founders because they no longer profess to understand what constitutes a "man." The judges, in our own day, profess to be far less certain about the meaning of "nature" and "man." They are more disposed to leave to the "political process" the power to resolve that question of what constitutes a person or a human life.

But in the name of philosophic doubt, the judges have concluded that because there is no "objective" standard of what constitutes a human being, the decision will be left in the hands of people with political power. And when they flex their power, in reaching a judgment, that judgment will be tested by no standard of right or wrong apart from power itself.

Indeed, who is to pronounce on the question if there are no right answers? And who is to say that self-interest may not be a sufficient and defensible ground for the taking of a life, even the life of an innocent being, if there is no ground on which to say that self-interest is any better or worse as a standard of judgment than anything else?

If there are no moral truths, no ground of right and wrong, law itself turns simply into a system of power, without the least pretense of finding a moral justification for itself. The professors in the law schools know that the law is about power, and they insist that there are no "foundations" for moral judgment. Their aspiration then is to become possessed of political power, or the powers of the law. And once possessed of that power, the object is to use it for their own ends, without moral inhibitions, or without at least those fairy tales that were offered in the past to the gullible as "the moral law."

Americans have come to talk themselves out of the premises of the American Founders and Lincoln. They have done it even while they have had the impression that that they have been expanding their constitutional rights. In the name of "privacy" and "autonomy," they have unfolded, since 1965, vast new claims of liberty, all of them bound up in some way with the notion of sexual freedom.

Americans . . . have had the impression that that they have been expanding their constitutional rights.  

In the name of "privacy" and "autonomy . . . 

 In the first steps, there was a liberty, for married couples,

but then soon for unmarried people, to have unregulated access to contraceptives.

 Next, the claim of privacy was extended into a private right to end a pregnancy, or destroy a child in the womb, 

at any time in a pregnancy, 

for virtually any reason. 

That same claim of privacy was soon extended to the freedom to end the lives of newborns afflicted with Down syndrome 

or spina bifida. 

After an interval, that same doctrine of personal autonomy was applied to the other end of the scale of age,

 converting it into a claim to assisted suicide. 

In the first steps, there was a liberty, for married couples, but then soon for unmarried people, to have unregulated access to contraceptives. Next, the claim of privacy was extended into a private right to end a pregnancy, or destroy a child in the womb, at any time in a pregnancy, for virtually any reason. That same claim of privacy was soon extended to the freedom to end the lives of newborns afflicted with Down syndrome or spina bifida. After an interval, that same doctrine of personal autonomy was applied to the other end of the scale of age, converting it into a claim to assisted suicide. 

The dismantling of restraints on sexuality has evidently been taken as far more liberating perhaps because it has been taken as a matter of the most irreducible "personal" freedom. And yet these freedoms, celebrated as pre-eminently "personal," have required the assistance of surgeons and counselors, and they have quickly annexed to their cause the demand to have the support of public money, drawn from taxpayers with the coercions of the law.

one of the paradoxes of this new phase in our law that people seem to identify their well-being,

 not with an obligation to preserve life 

or go to its rescue, 

but

with the creation of vast new franchises to destroy human life,

 for wholly private reasons,

 without the need to offer a justification.

It must surely count as one of the paradoxes of this new phase in our law that people seem to identify their well-being, not with an obligation to preserve life or go to its rescue, but with the creation of vast new franchises to destroy human life, for wholly private reasons, without the need to offer a justification.

Each step in liberation has been marked, then, by a further detachment of people from the traditional restraints of the law. The corollary, of course, is that, as restraints have been removed, people once protected by those restraints have been removed from that protection. Vast new liberties come along with vast new injuries -- unless, of course, the victims no longer count.

In any event, there is little doubt that these alterations in our law over the past 30 years have been taken as the hallmarks of a new regime of personal freedom; a freedom so vital to those who savor it that any threat of having it qualified or diminished in any degree is taken as nothing less than an assault on the constitutional order itself.

For them it would seem, 

an America without the right to abortion

 would simply no longer be America. 

They assume

 that each step in the receding of the law has brought 

a deepening of

 their freedom.

For them it would seem, an America without the right to abortion would simply no longer be America. They assume that each step in the receding of the law has brought a deepening of their freedom.

But they seem blithely unaware that, with each step, they have been talking themselves out of the premises of the Founders and Lincoln. And if I am correct, they have done nothing less than talk themselves out of the grounds of their own rights.

As a consequence, we are less able as a people than we were even 25 years ago to vindicate our own rights, or the rights of the people around us, the people who thought they were joined with us in this political community.

This essay was excerpted from "Natural Rights & the Right to Choose" by Hadley Arkes in 2002. Reprinted with the permission of Cambridge University Press.

Archive: Sunday, October 19, 2003  SEATTLE POST-INTELLIGENCER EDITORIAL

http://seattlepi.nwsource.com/opinion/143709_life19.html?searchpagefrom=1&searchdiff=386

 

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