Tuesday, May 15, 2007

Personal Asides: A Lockean Flaw in Our Polity Which Means all the Difference in the World


The Flaw.

Later on in this website, I discuss the “Roe v. Wade” decision and a great weakness in our polity that could some day have fatal consequences. The weakness is, of course, lack of adherence to an absolute prescription of Natural Law rather than the John Locke version embedded in our documents. The Locke theory upholds Natural Law that squares with the view of the majority. That is the variant of Natural Law that has permeated the system, not the original view of Alexander Hamilton who believed in absolutes. Basically a skeptic in metaphysics, Locke could not attain certainty in moral philosophy, an extension of metaphysics. His moral philosophy, had he worked it out, would have been a barren utilitarianism identical to that of Jeremy Bentham. If one follows Locke, one cannot say for certain what is right or wrong when the majority says otherwise.

This has explained much about the Supreme Court’s rocking from side to side throughout our history. In the Court’s most recent partial birth abortion decision, the sliding scale came down in our favor. Charles Fried, a Harvard law professor who was solicitor general under Ronald Reagan from 1985 to 1989 is a conservative who supports “Roe.” When John Roberts was named chief justice in 2005, Fried testified at the Senate Judiciary committee of what Fried said some time later was Roberts commitment to “clarity, consistency and stability in the law—qualities that includes respect for precedent, essential if a Supreme Court is to be the guarantor of legality under the Constitution and not as unnecessary third political branch of government.”

Sen. Diane Feinstein (D-Calif.) asked if in Fried’s opinion, Roberts would vote to overturn “Roe.” Fried said he thought he would not because the “Casey” decision of 1982 protected governments from imposing an “undue burden” on a woman’s right to choose abortion before what the Court had ruled was the fetus’s viability. Then Fried testified similarly for Sam Alito and gave the same assessment to Sen. Feinstein. But it is clear to Fried now that the Supreme Court is moving toward ditching “Roe.” That is good to a pro-lifer like me but in a nation where absolutes are less than perfect, further indication that our government is based on shifting sands, due to the less-than-perfect application of Natural Law by our founders.

In 2000 in a similar case, the Supreme Court stuck down a Kansas partial birth abortion ban because there was medical opinion that sometimes the procedure was less risky for the mother and that the ban posed an undue burden. The federal ban that followed prescribed that the procedure was never safe for the mother. To Fried, Justice Anthony Kennedy doesn’t come to grips with his own jurisprudence, “going so far as to say that because Congress was acting under its power to regulate interstate commerce, it needed only a rational basis to justify its decision.” He cites the continued tendency of the Court to bob and weave, first with Justice Sandra Day O’Connor who contradicted positions she had earlier agreed-to, like affirmative action and campaign finance. He wonders if the Court is not up to its own tricks, “simply reflecting its changed political complexion, not reasoning carefully and promoting stability and clarity in the law.”

Fried is entirely right. The fault lies more with our founders, brilliant men but most of whom in the age of Enlightenment, relied on Locke. The philosophy of Hamilton was diluted by others who unlike Hamilton did not regard human law in the context of a divine order knowable to man. Some things are always unjust no matter what a majority will say. Locke did not see things that way; as an empiricist he did not believe he could really know the essence or nature of anything.

Because Locke’s uncertainly governs, it’s why all of us pro-lifers want to win the next presidential election. If we had a Court running on the absolute principles of Natural Law as Hamilton envisaged it rather than Locke, we might not be so concerned. But that’s not the way it is…which is the reason why as Mr. Dooley so rightly said, “th’ Supreme Court follows th’ election returns!” .


  1. The later Locke model's( along with Bishop Berkley, Hume and others) control of American political thought, precludes any moral certainties. Runaway Empiricists mated with Rousseau and gave us Jeffersonian radicalism.

    As I recall from my C student understanding of 18th Century thought, the real hair-splitters still have a Locke on the minds of would-be Roger Baldwins.

    Killing a Baby is not that far a strech for them from 'the tree falling in the woods but no one is there to hear it.'

    Progressives control thought with noise; always have always will. Their great shout is always 'intellectual honesty' - whatever the hell they mean by that?

  2. One wonders what would have happened if Roe v Wade was decided the other way and all those aborted babies lived! In one way I believe that the United States became cursed when Roe was handed down. The party the Baby Boom Generation has had is ending fast in the age of Globalization where the world is being economically flattened with the USA leading the charge DOWN.

    Illegal Immigration may not have happened if the country had the additional population of the aborted babies following Roe.

    It is almost as though the United States is now cursed because of this heinous decision!

    I can't help but feeling that the best days of the USA are behind us. Our once great industrial base is now in tatters leading to a greater Communist Militaristic and POWERFUL CHINA and a mega trade deficit for the USA.

    The middle class is now defined by a condo in a tenplex and a low wage job at a discount retailer or fast food joint or a fork lift job at a china import distribution center.

    The Republican Party no longer seems like the Republican Party. It has been infested with Political Correctness and the new age conservatism of Norman Podhoretz and Irving Kristol which has spawned "Big Government Conservatism" and the adventure of ill advised wars.

    Traditional Social Conservatives are
    being painted as extremists even by the likes of Rush Limbaugh who says they fail the "Kook" test. Even HE does not take calls against Abortion as he has purged his show of any discussion of the Right to Life. Traditional Conservatives who stand up for the Right to Life are hit with the RICO laws.

    The Roe decision encapsulated the whole decadent free love era of the 1960's that has led broken families and rampant sexual disease like AIDS, Oral and Genital Herpes, Genital Warts (which I was told by a prominent doctor 54% of women now have), and new difficult to treat forms of sex and drug induced TB, etc.

    And now we have illegal border crossers who demand RIGHTS and GET them from timid politicians funded by corporate greed that thrives on low wages. When these people are "Legal" more will cross the border because these same "employers" will STILL want cheap wage undocumented workers who they can cash out the back door! Not only that, the Democrats will have a new block of governmnent handout dependent voters who will dilute OUR conservative vote even further! AND these "new citizens" will automatically qualify for minority set asides and affirmative action! Don't belive me.... look at the operations website for Navy Pier!

    Abortion was supposed to FREE the woman. SO the woman now puts on the pants and wants a paycheck only to find the house they wanted is now DOUBLE in price due to her introduction into the work force and thus TWO paycheck now must pay for that house.

    YES the ROE decision has CURSED this nation and has greatly diminished its greatness to the point where it will soon be politically incorrect to say the Pledge of Allegiance or celebrate JULY 4th because it would disrupt the mad economic rush toward globalism.

    While the aging Baby Boomers try for that last sexual thrill with the help of Viagra and Cialis, the economic and social rug has been pulled out from under them and their Ritalin ridden kids and grandkids. Look at the STATS: Saving is at an all time LOW! The home equity was spent on crap. What a sad bunch of losers this country has become!

    Yes Roe v Wade CURSED this country!

    Those of us who still care are increasingly ANGRY at all of this but then it will be US who will be sent for Sensitivity Training.

    So Tom you want to write the Fifty years of history..... Don't forget to leave out the tragic end of it all........

    A failed country CURSED because of Roe!