By CHRISTOPHER MANION
“In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” — Thomas Jefferson, 1798.
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These days the simple truths of Humanae Vitae are constantly challenged by an avalanche of conflicting and confused federal court decisions that assail life, marriage, and the family.
We have a right to be bewildered, and we have a duty to understand how the once-flourishing legal field of freedom and the rule of law got turned into a fetid swamp. Let’s start with the Constitution.
In introducing Judge Brett Kavanaugh, his nominee to replace Justice Anthony Kennedy on the Supreme Court, President Trump said, “My judicial philosophy is straightforward. A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
Let’s start with a simple question: Where does the Constitution confer on the federal government the power to meddle with marriage, or abortion, or health insurance?
The answer, of course, is simple: It doesn’t.
But beginning over 100 years ago, the virtue of judicial restraint — the “chains of the Constitution” invoked by Jefferson — were gradually loosened, then sundered, giving way to judicial hubris and arrogance.
“We are under a Constitution, but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberty and of our property under the Constitution,” New York Gov. Charles Evans Hughes told the Elmira, N.Y., Chamber of Commerce on May 3, 1907.
The judiciary, and not the Constitution “is the safeguard of our liberty and of our property.” This was not an idle boast. Hughes put it into practice, and into law, during his 17 years on the United States Supreme Court, 11 of them as chief justice.
In 1940, my father, Clarence Manion, professor of constitutional law and dean of the Notre Dame Law School, wrote a law review article entitled, “A Lawyer Looks at Liberty.” In it, he cautioned those who invoked “the Constitution” to do so with care.
“We have more than one constitution in the United States,” he wrote. “We have forty-nine Constitutions [at the time, 48 states and the District of Columbia: ed.] to be exact. Those who think of Americanism in terms of ‘The’ Constitution are undoubtedly thinking about the Constitution of the United States. They forget that the State Constitution touches the average American citizen one hundred times while the Federal Constitution is touching him once.”
And every one of those state constitutions began with an invocation of Almighty God, he observed.
God? State constitutions? Who ever heard of them? What planet was he living on?
The Battle Of
The Two Standards
Dean Manion was referring to the country that Robert Nisbet, the premier American sociologist of the twentieth century, described when he observed that in 1913, the year he was born, the only contact the average American had with the federal government was the Post Office.
There are some remnants of this America scattered through today’s legal wastelands. In fact, even today the constitution of my own Commonwealth of Virginia begins with “Article I. Bill of Rights,” Article 16 of which reads as follows:
“That religion, or the duty which we owe to our CREATOR, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.”
Clearly, if anyone bothered to read our commonwealth’s constitution, this peremptory invocation of religion and Christian virtue would be abrogated in a heartbeat.
But why bother? In the years since Dean Manion and Robert Nisbet, the Supreme Court created a jurisprudential fact: The Constitution empowers the federal government, and specifically the federal courts, to declare the law of the land and to enforce it. The Tenth Amendment in the Bill of Rights and state constitutions are sent to the Memory Hole.
By 1958, Chief Justice Earl Warren could smugly declare it a “settled doctrine” that the whim of five justices was now the “Supreme Law of the Land.”
This is the perverse principle that allowed the Supreme Court to overturn “The Laws Of Nature And Of Nature’s God” 15 years later in Roe v. Wade.
By 1992, the Supreme Court didn’t even bother to pretend that its members were “bound down from mischief by the chains of the Constitution.”
In Planned Parenthood v. Casey, Mr. Justice Kennedy, affirming Roe v. Wade, sounded a trumpet call for nihilism as the foundation of the court’s new jurisprudence: “At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
In practice, of course, the Supreme Court gets to define that liberty — and no higher law can overrule it.
Pope Benedict XVI dismissed this empty pomposity in a meeting with visiting American bishops in 2012:
“At the heart of every culture,” he said, “whether perceived or not, is a consensus about the nature of reality and the moral good, and thus about the conditions for human flourishing. In America, that consensus, as enshrined in your nation’s founding documents, was grounded in a worldview shaped not only by faith but a commitment to certain ethical principles deriving from nature and nature’s God.”
Justice Kennedy’s opinion clearly articulates the unbound ego of the Culture of Death. In contrast, Benedict identifies the truth that makes us free and sustains and protects the Culture of Life.
Ignatius of Loyola portrays it vividly in his Spiritual Exercises:
“See a great field of all that region of Jerusalem, where the supreme Commander-in-chief of the good is Christ our Lord; another field in the region of Babylon, where the chief of the enemy is Lucifer. Christ calls and wants all under His standard; and Lucifer, on the contrary, under his.”
There’s nothing new under the sun. In every age, the “Two Standards” stake out the battleground for the soul of every country and the heart of every human being.
During the reign of Mr. Justice Kennedy, the reign of Earl Warren’s “five justices” was narrowed down to one. And his seat is now vacant.
The Obama Standard
In his 1940 article, Dean Manion cautioned the practicing lawyer constantly to eschew emotion and focus on rational principle. In today’s culture, that admonition has been eviscerated. Two generations of government school pupils have been trained to feel, rather than being taught to think. Just ask them.
This postmodern standard of irrationality was raised high by candidate Barack Obama in July 2007, in an address to the Planned Parenthood Action Fund. There he describes the qualities he will look for in nominating federal judges:
“Ninety-five percent of the time. Justice Ginsburg, Justice Thomas, Justice Scalia they’re all gonna agree on the outcome,” he said.
“But it’s those five percent of the cases that really count. And in those five percent of the cases, what you’ve got to look at is — what is in the justice’s heart….And we need somebody who’s got the heart — the empathy — to recognize what it’s like to be a young teenage mom.
“The empathy to understand what it’s like to be poor or African-American or gay or disabled or old — and that’s the criteria by which I’ll be selecting my judges. Alright?”
Chains of the Constitution versus the unlimited rule of inchoate feelings. That is the fundamental issue at stake in the coming battle over the Kavanaugh nominations.
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