In the article, A High View of Justice?, I argued that the interpretative theory mainstream conservatives utilize when reading the constitution has significant flaws,
“This gets to an important point concerning these competing views of constitutional jurisprudence. A primary problem with the conservative view is that they seem to adhere to a jurisprudence that does not consider the important question of what a justice ought to do. What a justice ought to do when deciding a case is much different than focusing on what the constitution affords justices the power to do when deciding a case. Progressives, on the other hand, seem to be totally focused on the question of what a justice ought to do when deciding a case no matter the constraints within the text of the constitution. This is why progressive justices will “legislate from the bench” on certain issues; they believe they have a duty to sanction justice exceeding the constraints considered to be culturally arbitrary. The problem with the progressive view, I maintain, isn’t that they focus on what justices ought to, it is that they are the philosopher kings of an erroneous political philosophy informed by the tenets of a fallacious liberalism.
Consider this from the perspective of the current debate concerning marriage and the Obergefell decision overturning laws throughout the states that had enshrined the traditional, conjugal view of marriage. What if the justices had decided differently? What if the justices not only upheld the traditional marriage laws where they already existed, but overturned the laws in other states that opened marriage to redefinition while stating that the only valid laws are those adhering to traditional marriage? Now, if the traditional view of marriage is true, right, and just could any conservative seriously argue that this is an act of unjust judicial activism? Would it be unjust to protect the family from progressive redefinition? It is important to also consider whether something being unjust and something being unconstitutional is the same thing.
The justice adhering to the textualist interpretative view of the constitution may argue that they cannot make such a ruling because they have no power to do so. The constitution does not afford them the authority to rule on the definition of marriage. This perspective will most likely result in these justices not being able to rule as they ought to in this instance. If this is the case, then it is a reasonable criticism to say that the conservative view of the constitution prevents justices from doing as they ought to in cases requiring adherence to a higher view of justice afforded by the written text of the constitution.
But can this be a correct and moral jurisprudence, let the constitution reign though justice be thwarted?”
Keep these arguments in mind when considering this judicial thought experiment taken from the pages of Christopher Ferrara’s book, Liberty: The God that Failed.
Changing History: A Thought Experiment
It is not hard to imagine what would happen if Catholics in public life awoke from their liberty-minded trance and remembered that the God who judges His creatures for failing to obey His law does not require a visitor’s pass to enter the courtrooms and legislative chambers of the Western democratic republics. He is there already, and the same judges and legislators who routinely defy His will even piously invoke His name.
Suppose for example, that five of the six Catholic justices now sitting on the Supreme Court bench join in a majority opinion overruling Roe v. Wade. Let us suppose that this opinion holds that the Fifth Amendment protection against the deprivation of life and liberty without due process of law, applied to the States via the Fourteenth Amendment, extends to life in the womb. Suppose further that the opinion holds that the Fourteenth Amendment itself, which provides that no state shall ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws applies to persons in utero. Finally, let us suppose that the opinion ends with this astonishing declaration:
The Constitution was not drafted and ratified in a moral or theological vacuum. The Framers lived in a society whose common law tradition still recognized the Law of God, and in particular the ‘divine positive law’ of the Ten Commandments, as the ultimate source of human positive law. The classic commentaries of William Blackstone place this historical conclusion beyond serious dispute. The justices of this very Court take an oath to God, and we deliver our opinions while sitting beneath a frieze depicting Moses the Lawgiver holding the tablets containing the Commandments.
We recall here Dr. Martin Luther King’s historic declaration in his ‘Letter from a Birmingham Jail’ in the midst of the civil rights movement of the 1960s: “One has not only a legal but a moral responsibility to disobey unjust laws. I would agree with St. Augustine that ‘an unjust law is no law at all.’” For too long, the legal distortions created throughout the fabric of this nation by our unprecedented legal decision in Roe have placed conscientious Americans in the same position as Dr. King, writing from his jail cell. Indeed, Roe has given rise to a new civil rights movement and concomitant social turmoil that show no signs of abating nearly forty years after Roe divided this nation in a way not seen since the abolition movement that followed the everlasting embarrassment of our decision in Dred Scott vs. Sanford, 60 U.S. (19 How.) 393 (1857).
But beyond a mere appeal to history, which provides the context for our textual interpretation, we hold today that the Constitution’s morally freighted terms ‘person,’ ‘life,’ and ‘liberty’ cannot be considered apart from the same ultimate source of moral authority that Blackstone, our nation’s common law tradition, and Dr. King had in view. As this Court observed in Zorach v. Clausen, 343 U.S. at 314, ‘We are a religious people whose institutions presuppose a Supreme Being.’ Men are creatures of that Supreme Being, accountable to Him for any human law that contravenes His law, which is written on the heart. Our unfortunate decision in Roe is such a human law. We overrule it today, not only in the name of history and tradition, but in the name of God.
That the issuance of such an opinion now seems absolutely inconceivable is in itself a demonstration of the depth and breadth of the dictatorship of Liberty. But what would happen if the Court so decided? The mass media would of course erupt in an unprecedented storm of outrage. These would be calls for impeachment proceedings to remove all five Catholic justices. But what would be the impeachable offense – that the five justices had violated their oaths to God by citing His law in their opinion? Who in the Senate would be foolhardy enough to lead a prosecution of five sitting Supreme Court justices based on their adherence to God’s law, supported moreover by references to history, tradition and Saint Martin of Birmingham?
Consider the galvanizing effect the decision would have on a nation whose population is still overwhelmingly at least nominally Christian. Surely, in response to the liberal onslaught, conservative talk radio and TV would hail the justices as heroes, as would evangelical Christian leaders and even many members of the ordinarily craven United States Conference of Catholic Bishops. The Pope would hail the decision, emboldened by the courageous witness of the justices, and Catholics around the world would join the Pope. Certain orthodox Jewish leaders who have long allied themselves with Christians on moral and social issues would lend support to the justices as they come under attack by the media jackals and Congress. And what could the President do? Like Thomas Jefferson in his frustration over Justice Marshall’s interference in his attempt to railroad Aaron Burr to the gallows… he would be reduced to ranting having no legal effect on the life tenure of the five justices. The justices would hold on to their seats and the ‘separation of powers’ that was supposed to characterize the American Republic would receive a tremendous vindication.
In the States, pro-life initiatives in the courts and legislatures would gain powerful impetus. If not outright bans on abortion, state after state, freed from the dead hand of Roe, would be able to enact measures that drastically reduce the number of abortions. Christians would come out of hiding throughout the political process, now openly proclaiming that God’s law ought indeed to govern positive law and judicial decisions, and what were we thinking before? The resulting rightward shift in national politics could produce a fundamental realignment in Congress and even another Catholic president, but this time one who would not be afraid to proclaim his faith while urging Americans to unite on the great moral issues of our time, using the bully pulpit of the presidency to preach national repentance and conversion of hearts while the liberals seethe with rage.
All of these things could well happen because five jurists had the courage to remind their nation that there is a God in heaven, that we must all die and face His eternal judgment, and that both men and nations have a duty in this world to follow His law. In short, our imaginary Supreme Court scenario could be a defining moment in the battle for the soul of the West, with the potential to change not only the course of American history, but the history of the world. And what is to stop this imaginary event from becoming a reality? Nothing, save fear of the powers that be. When our leaders overcome that fear, the rescue of the West from the clutches of Liberty can begin.
As the Protestant-led NRA movement recognized long ago, only when conservatives – both on and off the bench, in America and in every Western nation – begin to invoke and defend the law of God, rather than the will of the people or the text of a document standing alone, can there be any hope of regaining the vast moral territory we have already lost and of avoiding a final defeat that can only mean the destruction of what is left of the moral order and the overt persecution of believing Christians throughout the Western world. Whoever among us still does not see this is fiddling while the West burns.
– Lucas G. Westman