THE Global Justice Movement Website

THE Global Justice Movement Website
This is the "Global Justice Movement" (dot org) we refer to in the title of this blog.

Tuesday, February 14, 2012

Raw Judicial Power XXI: Roe v. Wade, Effects

Public reaction to Roe v. Wade was immediate. The decision was widely seen, as dissenting Justice Byron White put it, as an exercise of "raw judicial power." The Supreme Court's decision seemed to many people to be a new philosophy of jurisprudence and understanding of the role of the State, even a revolution. The ruling was so contrary to public opinion that it could only have been forced on a nation with an almost inherent respect, even reverence for its own laws and traditions, and where the great mass of people had lost virtually all ability to act directly on the common good through the disappearance of widespread ownership of capital.

Still, given the violence that often characterizes fundamental social change in other parts of the world, the generally peaceful acceptance of such a profoundly flawed decision in the United States is a virtual anomaly. Other laws that went against the public conscious, such as the Fugitive Slave Act of 1850 and the Volstead Act (Prohibition) were widely flouted. Only the fact that no one was forced to go against his or her conscience kept the public outcry within bounds — that and the concurrent decay of the principle of subsidiarity, in consequence of which many (if not most) people felt completely helpless in the face of an obviously unjust situation.

The principle of subsidiarity involves resolving issues through social action and the formation of associations by individuals at levels "below" that of government rather than by force of arms or other coercion. It was noted by de Tocqueville as the chief characteristic of political life in the United States. Its decay has the unfortunate effect of obscuring the fact that the decision in Roe v. Wade was actually a logical development of a chain of events that began as an effort to preserve the archaic institution of chattel slavery, and continued to preserve outdated assumptions about financing new capital formation that, seemingly inevitably, concentrated ownership of capital in a small private elite or State bureaucracy.

Paradoxically, even though rooted in the principle of subsidiarity, however distorted, the chain of events barely outlined in this blog series culminated in the belief that only the State has the power — and thus the right and duty — to control every aspect of life for both individuals and groups. This belief grew apace as America shifted from being a nation of owners, to being a nation of wage workers following the Civil War as a result of the loss of the opportunity to own landed capital was not replaced with the opportunity and means — access to capital credit — to own industrial and commercial capital.

Without the buffer of institutions between them and the government, people became increasingly dependent on the State and isolated from one another in furtherance of their personal survival. The habit of organizing for the common good faded, and, in many cases disappeared altogether, except in a collective sense under State authority as socialism took greater hold through State manipulation of the monetary and financial system.

As people lost the power over their own lives through loss of ownership of capital, the State took over more and more of the business of daily life, and the feeling of individual helplessness increased. The idea that the State is made for man, not man for the State was necessarily discarded. The human person (recognized as such only when expedient for the State) became, ipso facto, a "mere creature of the State," recognized and protected as a person only as an expedient insofar as it advanced the interests of the State.

The primary institutions that traditionally intermediated between the individual and the State — religion and the family — began to be perceived as threats to the all-encompassing power of the State. Cloaked under the issues of "separation of Church and State," and "Gay Rights," both religious society ("Church") and domestic society ("Family") have been targets of abolition by redefinition, just as the natural rights to life, liberty and property have been eliminated by "re-editing the dictionary." It seems not to occur to anyone in power that the First Amendment clearly states that Congress shall make no law respecting establishment of religion, not "shall only make punitive laws"; the First Amendment is a recognition that religious society is distinct from civil society over which the State exercises its power, not a declaration of war.

Keeping in mind the politicization of the Church of England after Henry VIII declared himself head of the Church of England and established religion as a branch of the government, the intent of the First Amendment is to keep religious society qua religious society safe from government interference and from being used by the government to carry out mandates in civil society. Purely religious rights and matters do not come under the purview of the State. Nor can the State legitimately require that people or institutions — even civil institutions — act against the dictates of a well-formed conscience.

Further, as religion is the primary interpreter and teacher of natural law in any society, the State's abolition of natural rights in civil society cannot justly be applied to religious society however expedient it may be politically. The State can only intervene in religious society when civil rights, not religious rights, are violated, just as the authorities of religious society have the right to intervene in civil affairs when actions by the State threaten religious rights.

Similarly, domestic society — the Family — is, under common law, distinct from civil society; "a man's home is his castle," the "Castle Doctrine," is a recognition of this separation of civil and domestic society. As long as the civil rights of family members are not violated, the State has no right to intervene in domestic society. It doesn't seem to occur to anyone in the "same sex marriage" controversy that marriage is a domestic right, not a civil right.

The State may regulate marriage to a degree, e.g., require a license or forbid bigamy or polygamy in the interests of the common good or to protect individuals. The State, however, lacks the competence to redefine marriage, abolish it, or to regulate it out of existence. The claim that marriage is a civil right protected under the penumbra of rights allegedly "granted" by the State under the Fourteenth or any other Amendment reveals a profound misunderstanding of the Constitution, the role of the State, and even society itself, to say nothing of the political philosophy on which the United States is based.

No civil court can rule that a ban on same sex marriage is unconstitutional, because the State has no competence under the Constitution (the highest civil law) to define marriage, an institution in domestic society. Any constitutional amendment defining marriage in any form would, in effect, extend State power even further than before by granting the State a power it never had. The most any such amendment could do would be to declare that the Congress shall make no law affecting the definition of the family or marriage, or words to that effect.

Thus, what quickly became the Pro-Life movement in the wake of Roe v. Wade was caught off guard by a profound yet seemingly unnoticed fundamental shift in the general understanding of essential human dignity and the respective roles of individuals and the State, and in mistaking Roe v. Wade for the cause, rather than an effect of the breakdown of the culture. The Pro-Life movement has been struggling ever since to secure the high political ground as well as the high moral ground. Not understanding or appreciating the relationship between economic power and political power, however, the Pro-Life movement has stressed the necessity of conforming human positive law to the natural law, but without the effective power to do so. The movement as a whole has ignored or viewed as a diversion efforts to secure political power through implementing and maintaining the principles of economic justice.

Since the entrenched philosophy that led to Roe v. Wade takes for granted certain economic — and thus political — assumptions, downplaying or even ignoring the importance of a Pro-Life economic agenda has been both a tactical and a strategic disaster for the Pro-Life movement. Even worse has been the fixed belief that the State necessarily controls the whole of society, and that the only real quarrel is which draconian measures best meet the material needs of the citizens, not which arrangement of the social order best conforms to the demands of human dignity.

This virtual "State worship" has led to otherwise charitable religious people giving in to what can only be described as "Welfare Blackmail" and viciously attacking anyone who would reduce the role of the State and put both political and economic sovereignty back in the family and the individual. Within the framework dictated by the Supreme Court since the Dred Scott case, the State is viewed as necessarily all-powerful. Efforts to decrease the role of the State are thus believed to represent a serious danger to material wellbeing.

After all, the reasoning appears to go, the only possible alternatives for social and economic development are capitalism and socialism. Private individuals — as the capitalists themselves sometimes aver — are motivated solely and exclusively by greed; "greed is good," as the late Nobel Laureate Milton Friedman declared in an interview with Phil Donohue. That being the case, only the State can be trusted to control economic and social life and ensure an acceptable material standard of life for everyone. If abortion is the price the nation must pay in order to secure State control and thus the material welfare of its citizens, the cost is high, but unavoidable — at least until "we" can seize control of the State and force "our" views on everyone else the way "they" have forced theirs on "us."