This past Friday the Alabama Supreme Court overturned a DeKalb Circuit Court summary judgment in favor of defendants who maintained that a wrongful-death action could not be maintained because an unborn child is not viable. Pro-Life activists are hailing the decision by Justice Thomas Parker as a great victory, and a further erosion of the U.S. Supreme Court's ruling in Roe v. Wade. As technology advances, the issue of viability of the fetus becomes in many cases irrelevant. As one commentator put it, "What stays constant is that at the moment of conception the child is a human being."
There's the problem. In Roe v. Wade the Supreme Court did not deny that a fetus is a human being. Logically and legally the Court could do no such thing. They could equivocate and feign ignorance of a self-evident fact, claiming that they did not know whether a fetus is a human being, but they could not deny that fact outright. "Being" is the quality or state of having existence. The fact that a fetus exists from the moment of conception is not the issue. Abortion is a meaningless act if there is nothing there to abort.
What the justices could do and did was deny that, whatever a fetus happens to be, it is not a person, and therefore not entitled to protection under the law. "Person" is a legal and social concept, where "being" is a simple statement of fact. What Roe v. Wade did was make personality dependent on something other than mere humanity or being. This is similar to what the Court did in Scott v. Sandford in 1857 when Justice Roger Brooke Taney declared in his opinion that,
"It is difficult at this day to realize the state of public opinion in regard to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence, and when the Constitution of the United States was framed and adopted; but the public history of every European nation displays it in a manner too plain to be mistaken. They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far unfit that they had no rights which the white man was bound to respect."
The ruling in Scott v. Sandford upheld the presumed principle of the natural inferiority of blacks, whether slave or free, maintaining, in effect, that members of "that unfortunate race" may be human beings, but they are not human persons. Only persons have rights. When the natural law is jettisoned, it is entirely "logical" to take the position that Dred Scott or a fetus may be a human being, but he is not a human person.
Thus, it seems evident that, however encouraged people in the Pro-Life movement may be about the decision by the Alabama Supreme Court, it really changes nothing. The probability is that, given the U.S. Supreme Court's orientation toward legal (and moral) positivism, the argument would not be admitted.
As became clear in the recent blog series on "Raw Judicial Power" when analyzing the U.S. Supreme Court's re-writing of the Constitution beginning with Marbury v. Madison in 1803, but reaching its nadir with Scott v. Sandford in 1857, the Slaughterhouse Cases in 1873 and Roe v. Wade in 1973, the Court can make the words in any part of the Constitution mean anything they want in any set of circumstances. As William Crosskey observed regarding the ruling in the Slaughterhouse Cases, the opinion was so vaguely worded as to allow the Court to make decisions 180 degrees from one another, using the same precedent — and the ruling in Slaughterhouse as it pertains to the meaning of "person" in the 14th Amendment is the basis for Roe v. Wade.
In their book The Basic Symbols of the American Political Tradition (1970), Willmoore Kendall and George Carey maintained that Congress has the power to reverse any decision of the Supreme Court and put it back in its place, but it simply does not do so. Perhaps the object lesson of how the Court was able to effectively nullify the 14th Amendment — specifically intended to overturn Scott v. Sandford — and use the same reasoning in Slaughterhouse, giving the Court power over the other two branches of government is too graphic a reminder of their own, self-imposed impotence.
The Congress can amend the Constitution all it wants, and other courts can hand down decisions to their hearts' content, but until the Court — and, before it, the people and the other branches of the government — reorient themselves and their philosophy toward "virtue" (in the Aristotelian sense), nothing is going to happen except pendulum swings between whichever group holds power at the moment. As John Adams noted, "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." The history of the decisions of the Supreme Court demonstrates the truth of Adams's observation in the most graphic manner possible.
The problem is that the United States has fallen victim to the very thing against which Alexis de Tocqueville warned as being the single greatest danger to democracy in America: false notions of equality. As de Tocqueville concluded the second volume of Democracy in America (1840),
"Providence has not created mankind entirely independent or entirely free. It is true that around every man a fatal circle is traced, beyond which he cannot pass; but within the wide verge of that circle he is powerful and free: as it is with man, so with communities. The nations of our time cannot prevent the conditions of men from becoming equal; but it depends upon themselves whether the principle of equality is to lead them to servitude or freedom, to knowledge or barbarism, to prosperity or to wretchedness." (Alexis de Tocqueville, Democracy in America, II.4.viii.)
Kendall and Carey make the same point, although they tend to muddy the water by giving too much weight to modern understandings of the false notions of equality, neglecting the obvious Thomist understanding as it applies in the "analogy of being" of equality of opportunity or capacity for virtue. Whatever your specific frame of reference, however, people today seem to have forgotten that the State is not the source of all good. The demand has grown, from Coxey's Army in 1894 to today's "Occupy" movement, that the State guarantee everyone an adequate material standard of living, imposing an acceptable equality of results by whatever means deemed necessary.
This is directly contrary to the role the State is intended by nature to play. The State is the primary (but not sole) guardian of the common good, not each individual's personal good. The common good, properly understood, is that network of institutions within which people, as special creations of God, acquire and develop virtue, thereby becoming more fully human — and the State a more perfect union to enable people to pursue their personal good within the limits imposed by membership in a free society.
Consistent with the belief that, contrary to the precepts of the natural law and Catholic social teaching, the State, and the State alone, is the guarantor of all individual goods ("the State is the sole intercessor available to the poor," as one misguided enthusiast put it), and the sole guardian of the common good, leads directly into decisions such as Roe v. Wade.
Worse, the fixed belief that all good comes from the State makes people susceptible to "Welfare Blackmail." People begin to accept abortion and intrusive State control of every aspect of their lives as the presumably necessary price for material benefits conferred by the State. The misguided enthusiast cited above (we'll grant him anonymity for obvious reasons), has, in fact, while proclaiming himself to be "Pro-Life," criticized others for agitating against abortion when war, poverty, and lack of adequate wages abound.
That the demand that the State take care of everyone's material needs and impose an equality of condition — especially economic condition — involves the complete economic disenfranchisement of ordinary people through the effective abolition of private property is either ignored (by the capitalists), or viewed as a positive good (by the socialists). This is why the popes have harshly criticized capitalism, but condemned socialism outright. While both the criticism and the condemnation were necessary and salutary, the ease with which both have been widely misunderstood, reinterpreted, or ignored by Catholics and non-Catholics alike suggests that what is needed at this point is the explication of principles that, when applied in a consistent and logical manner, will lead to something above and beyond both capitalism and socialism.
Absent that, the popes can claim all they like that widespread direct ownership of capital is a moral and social necessity, but it will have no effect. People will continue to reinterpret what the popes say in light of discredited economic theory that, for example, asserts contrary to established fact that the only way to finance new capital formation is by cutting consumption and accumulating money savings. The legal, social and economic "experts" will simply continue to ignore or suppress papal teachings on the grounds that it contradicts what they have chosen to accept as economic dogma.
Without private property in capital, however, we cannot hope to reverse the current trends in this country or around the globe. "Power," as Daniel Webster observed, "naturally and necessarily follows property." Ownership of capital is also the means by which we interact in society in a meaningful way — as far as Aristotle was concerned, a nominally free person who owns no capital is a masterless slave. Ownership of capital — and, as Leo XIII observed, we have that right by nature itself — not a declaration by the Supreme Court or Congress, makes us "persons," at the same time that it vests us with the power to protect that very personality and the other rights of life and liberty that necessarily accompany it.
This is why we at CESJ advocate Capital Homesteading as a Pro-Life economic agenda. By vesting ordinary people with ownership of capital, "the rest of us" gain the power necessary to reverse the social and political trends that led to Roe v. Wade — and, incidentally, eliminate the debt that threatens to enslave future generations even more than is the case today. Not until we have a society characterized by widespread direct ownership of capital will the Pro-Life movement make any headway. The Congress can pass all the laws it wants, the Constitution can be amended, but until ordinary people are vested with the power that ownership brings, and thus the means of acquiring and developing virtue, the Court, the president and even Congress will continue to interpret the Constitution and even the role of the State in a way that furthers the goal of false equality against which de Tocqueville warned.