In the previous posting in this series we discovered that the Supreme Court of the United States seems to have contradicted itself in the decision it rendered in Roe v. Wade. Further, the basis for the decision seems to have been in conflict with the philosophy of government espoused by the Founding Fathers of the American Republic.
The problem, of course, is obvious. The justices in Roe v. Wade took a substantially different view of the Constitution than did the framers of the Constitution, even as they cited original intent. As far as the Founding Fathers of the United States were concerned, all rights come from individual people organized as a political entity. The Constitution, consistent with the political philosophy embodied in Thomism and Roman law, is a revocable grant of rights from the people to the federal government. That is, rights are presumed to flow from the people to the State. Thus, under true "original intent," the presumption must be that the fetus has a natural right to life, which right overrides any derived or statutory right a woman — or man — might have to choose abortion.
The Supreme Court in Roe v. Wade clearly took a different view of sovereignty: that rights flow from the State to the people; that the State, not people, is the ultimate sovereign. Under this orientation, people have only those rights that the State has decided to grant them. Everyone and everything becomes, ironically as expressed by the United States Supreme Court in Pierce v. Society of Sisters (268 U.S. 510 (1925)), "a mere creature of the State."
This is a complete reversal of the political philosophy on which the United States was founded, as well as a flat contradiction of essential precepts of moral philosophy. As Pope Pius XI expressed it, "Only man, the human person, and not society in any form is endowed with reason and a morally free will." (Divini Redemptoris, § 29) That is, only the human person, not human creations including any and all forms of society (even the State and the U.S. Supreme Court) has the morally free will and the correlative capacity to acquire and develop virtue — "pursue happiness" — and thus the natural rights that necessarily accompany the human condition.
Parallels between the Court's reasoning in Roe v. Wade and that of the German judiciary under the Third Reich are almost too obvious even to mention. Binding and Hoche's 1920 pamphlet, Permission to Destroy Life Unworthy of Life (Die Freigabe der Vernichtung Lebensunwerten Lebens) comes forcibly to mind. Further, if we accept the Court's reasoning, then the 14th Amendment does not include homosexuals, Jews, communists, and a host of other possibly unpopular or socially dangerous groups in the definition of "person." After all, the framers did not mention such individuals or groups specifically in the Amendment, and clearly did not have them in mind when framing the Amendment. A strong case can be and has, in fact, been made that equal protection of the law does not extend to such mental, social, or physical defectives: "the unfit."
Even Irving Fisher, the man declared by Nobel Laureate Milton Friedman to be "America's greatest economist," published a tract in 1909 on the advisability of instituting a program of "national hygiene," including forced sterilization of defectives and other measures eventually adopted by the Nazis. ("National Vitality, Its Wastes and Conservation." Vol. 3 of the Report of the National Conservation Commission issued in 1909 as Senate document no. 676, 60th Congress, 2d Session.) Using the rationale of the United States Supreme Court in Roe v. Wade, it would be a relatively simple matter to do what the German judiciary did under the Third Reich and redefine anyone categorized as social, mental, physical, or economic undesirables as non-persons, and dispose of them.
The problem, of course, then becomes what to do about this situation. That is what we will look at in the next posting in this series.