It is a standard legal aphorism — albeit one typically ignored by legislators — that "hard cases make bad law." As Oliver Wendell Holmes, Jr. commented in his dissenting opinion in Northern Securities Company v. The United States (193 U.S. 197 (1904)), "Great cases like hard cases make bad law. For great cases are called great, not by reason of their importance . . . but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." We see this especially in court cases like The State of Tennessee v. John Thomas Scopes (1925) — "the Scopes Monkey Trial" — and Roe v. Wade (410 U.S. 113 (1973)) that were deliberately used as "test cases" to change a law through judicial action rather than the legislative process.
We can expand on Justice Holmes's comment by adding that bad assumptions, like hard cases, make bad law. How it is possible for a court to create law and to understand what happened in the Roe v. Wade decision, we first have to understand the basis of law assumed by the framers of the U.S. Constitution, how that has been changed and then — perhaps a task much harder than most people are willing to undertake — realize that Roe v. Wade was not an isolated instance. Roe v. Wade is, instead, the logical result of the development of a line of thought that has plagued humanity from the beginning of the idea of law itself. Understanding this is of primary importance if the Pro-Life movement is to make any lasting advances that can be sustained on a foundation of the natural law.
The Pro-Life movement has been hamstrung from the very beginning by a number of assumptions. Ironically, many of these assumptions are based on the same flawed understanding of law that led to the decision in Roe v. Wade. These assumptions take for granted the bloated role of the State, distorted concepts of human dignity and sovereignty, even the complete separation of morality and law that the Pro-Choice movement also accepts without question.
These assumptions affect the awareness of man as a political animal. This, in turn, influences our understanding and definition of the exercise of natural rights of life, liberty and property, and the application of those rights within the common good. Our understanding of man as a political animal and the natural law affects especially our acceptance of the "analogously complete" capacity of each human being to acquire and develop virtue — "pursue happiness" — and thereby become more fully human.
Thus, where the Pro-Choice movement bases a large part of its justification for its position on the decision in Roe v. Wade, the Pro-Life movement concentrates on overturning Roe v. Wade and, in part, agitating for the adoption of a constitutional amendment to guarantee the natural right to life. Not considered is the fact that our constitutional history as related by William Crosskey demonstrates the futility of a constitutional amendment to oppose special interests championed by the United States Supreme Court.
There are many reasons why a constitutional amendment would not have the desired effect, especially in the prevailing climate of legal and moral positivism. Some of these have to do with the nature of law itself, others with the nature of politics. In no particular order, some of the major reasons are:
Misguided or Poorly Formed Public Opinion. No law, custom or tradition will be effective unless what constitutional scholar Albert Venn Dicey described as "public opinion" is behind it. Regardless of the justice or injustice of a particular law, custom or tradition, people must accept the law and be prepared to obey it, for whatever reason. Otherwise a law may have no effect, have a different effect than what was intended, or even have the opposite effect of what was intended. If the public as a whole has a poorly formed conscience or moral sense, this will be reflected in the laws that are accepted.
Expanded Role of the State. One of the "four pillars" of a just society in terms of the natural law is a limited economic role for the State. The more a society subordinates anything that is true in order to reach a political goal, the more unjust a society becomes, and the more the coercive power of the State is employed in an effort to maintain the status quo. Paradoxically, the more the State interferes to maintain the status quo or impose a false or superficial solidarity, the more quickly the social order degenerates as a result of violating the fundamental principles of subsidiarity and solidarity. Looking to the State to pass a law in order to impose a desired result is often self-defeating. Even when successful the effort undermines essential human dignity and violates the sovereignty of the human person by unnecessarily or unjustly restricting human liberty.
Rejection of Free Markets. A free market is essential to maintaining individual human sovereignty and thus securing and protecting human dignity through the exercise of liberty and private property, that is, freedom of association and contract involving the free exchange of marketable goods and services. By "free market," however, we do not mean a market in which "anything goes," but a market that all are free to enter and participate in as consumers and producers, and where the rules are clear, understandable, and enforced without prejudice. Misunderstanding this principle or interpreting it as promoting a "law of the jungle" environment sets the stage for what is effectively anarchy and "might makes right," or fascism in a misguided effort to bring order out of chaos.
Misunderstanding of Private Property. Understanding private property is crucial to recognizing and protecting essential human dignity and the sovereignty of the human person. Many people confuse "property" — ownership — with what is owned. On the contrary, property is, one, the natural right that every human being has to be an owner, and, two, the socially determined bundle of rights that define how an owner may use what he or she possesses, and (depending on the needs of the common good) what and how much can be possessed, as long as limitations do not unjustly or unnecessarily infringe on the underlying natural right to be an owner. Distortions of property that assert absolute exercise, or that the right to be an owner is not inherent (absolute) in the human person equally undermine private property as the chief support for the natural rights of life and liberty.
Alleged Economic Necessity. One of the strongest motivators for accepting even an unjust law is the need to make a living. In this respect, it is noteworthy that David Christy, author of Cotton is King (1855), one of the most persuasive defenses of chattel slavery in the American south before the Civil War, was a former abolitionist. While Christy continued to abhor slavery as an institution, he defended it on the grounds of economic necessity. Christy contended that the economic survival of the United States and the British Empire depended absolutely on the continuance of slavery in order to secure adequate supplies of American agricultural products, especially cotton, to support the industrial revolution. The modern wage system and concentrated ownership of capital, whether in private hands (capitalism) or the State (socialism) are justified on similar grounds, predominantly the need to secure adequate financing for new capital formation out of past savings.
All of these reasons — and more — demonstrate the degree to which the idea of the natural law has decayed in our society. Each one represents a more or less successful effort to undermine the natural law by subverting a common sense understanding of one or more natural rights, especially life, liberty, property, and the acquisition and development of virtue (pursuit of happiness), and making something other than truth the justification for changing the law or the social order.
The acquisition and development of virtue, especially, and somewhat paradoxically, is critical. It is a natural right itself to develop more fully as a person by acquiring and developing virtue — "pursuing happiness." The exercise of the right to acquire and develop virtue, however, necessarily implies the right to exercise the other natural rights, especially life, liberty and property. This is because exercising rights is the means by which human beings acquire and develop virtue. Thus, unless the right to develop more fully as a person is recognized and protected as the reason for even having rights at all, the probability is high that the exercise or even existence of life, liberty and property will either be denied or distorted.