Raw Judicial Power V: The Nature of Law

The fixed idea today is that passing a law or handing down a court decision makes it so. Supporters of abortion endlessly chant the mantra, "It's perfectly legal," even though that declaration and the orientation behind it are flawed on many levels. The problem is that the orientation that the judiciary can somehow create law instead of being restricted to interpreting and applying the law is legal positivism at its finest — or worst, depending on your orientation.

This surfaces another problem, one with which the Pro-Life movement has failed — in some cases refused — to deal with. A proper understanding of the decision in Roe v. Wade reveals the "soft underbelly" of the Pro-Choice position: the idea that the State in the person of the Supreme Court, the Congress or the President can decide on basic issues of right and wrong, that is, the natural law, and thus what comprises a law or court decision that is consistent with the Constitution of the United States, a document based on the natural law.

This shifts power away from both individuals as themselves and organized into groups in an exercise of personal sovereignty and freedom of association, to what is effectively an all-powerful State. Inalienable rights become alienable by the simple expedient of redefining basic terms, and are viewed as bestowed by the State as expedient or prudent, and not because they inhere absolutely in each human being.

Nevertheless, as we saw in the previous posting in this series, human positive law — if it is to be considered just — is necessarily grounded in what our study of human nature and our reason reveal to be right or wrong: the natural law. The chief precept of the natural law is that good is to be done, and evil avoided. Aristotle defines "good" as that which is in conformity with nature. Thus, anything that goes contrary to nature, especially if it violates humanity's natural rights to life, liberty (freedom of association/contract), property and the pursuit of happiness, must be construed as wrong, regardless how many or how strong the proponents advocating the change. Might does not make right.

As Harry V. Jaffa pointed out in his book on the Constitution (Original Intent and the Framers of the Constitution. New York: Regnery Publishing Company, 1994), and as William Winslow Crosskey took as his thesis in his monumental Politics and the Constitution in the History of the United States (Chicago, Illinois: University of Chicago Press, 1953), no one, including the U.S. Supreme Court, can interpret the Constitution — constantly cited as "the law of the land" by supporters of Roe v. Wade — without knowing what the words mean . . . and, especially, what the framers of the Constitution meant by those words. In spite of that, as Crosskey related, the constitutional history of the United States has been a long chronicle of ongoing efforts to subvert the original intent and accepted definitions of terms in the U.S. Constitution from the system envisioned by the Founders, to what is politically expedient or desirable to advance special interests.

The subversion of the U.S. Constitution by the very body established as its chief defender has been an absolute disaster. The whole idea of the proper role of the State and man's place in the State is turned on its head. Rather than the government existing for the benefit of the people and by the consent of the governed, each human being becomes "a mere creature of the State." Each human being has only such rights as the State chooses to recognize (and is thus a person only to that extent), and even, as Hilaire Belloc pointed out in The Servile State (1912), is permitted to exist — when permitted to exist — only on such terms as the State dictates.

Rather than work for the restoration of the U.S. Constitution on terms that would effectively overturn Roe v. Wade by making it obviously in violation of our natural right to life, the Pro-Life movement has allowed itself to be diverted into using the same legal philosophy, even the same judicial weapons as the Pro-Choice movement. If one court decision can take away the right to life (so they appear to reason), then another court decision can give it back.

On the contrary — overturning Roe v. Wade would do absolutely nothing if the Supreme Court of the United States continues to abrogate the natural law basis of the Constitution and assert its alleged power to decide what a person is. In natural law, all human beings are de facto persons as a result of the inalienable rights possessed by each human being. It is the possession of rights — not a court decision or even a constitutional amendment — that makes someone or something a person.

Neither the courts nor the legislature, nor even a presidential decree creates a natural person — and all human beings are automatically natural persons by the mere fact of their humanity. The natural personality of each human being is a fact established by definition, and cannot be taken away by redefinition, even though totalitarian political philosophy would have it so. Nor can personality be subject to a popular vote.

Thus, the tactic that the Pro-Life movement should be pursuing (not that there should be any diminution in the protests and demonstrations), is to prove that, in Roe v. Wade and other court decisions, the U.S. Supreme Court has violated the chief precept of the natural law: good is to be done. Given that the reason for life is to acquire and develop virtue and so develop more fully as human beings, this necessarily bases law on morality, that is, that which is good. The natural law written in the hearts of all men dictates what is good, thus the basic precept of the natural law is good is to be done, evil avoided.

Man being by nature a political animal, the State is made for man as an assist to the acquisition and development of virtue. Man is not made for the State. Therefore, anything that subordinates a natural right to political or economic expedience is a direct attack on the natural law, and thus undermines the very justification for having the State in the first place.

Consistent with the laws and characteristics of social justice (William J. Ferree, S.M., Ph.D., Introduction to Social Justice. New York: Paulist Press, 1948), the way to overturn Roe v. Wade is not to work directly on the decision itself, but on the "environment" — the legal philosophy — that made the decision possible. Restoring the original intent of the Constitution is more than merely passing laws or handing down court decisions. It is a matter of our whole approach to life and politics. If that remains unchanged, and the natural law continues to be rejected as the basis for society and government, all the court decisions, laws, or even constitutional amendments will not do one bit of good.

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