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!” .