Less than two years after the citizens of Washington voted by referendum
to uphold the state's prohibition of physician-assisted suicide, a
federal judge invalidated the statute as unconstitutional. In Roe v.
Washington, decided on May 3, 1994, Judge Barbara Rothstein cited
the Supreme Court's definition of "liberty" in Planned Parenthood v.
Casey (1992): "At the heart of liberty is the right to define one's
own concept of existence, of meaning, of the universe, and of the
mystery of human life."
Judge Rothstein reasoned that if the due process clause of the
Fourteenth Amendment recognizes such "liberty" in the matter of
abortion, liberty must also include the right of a mentally competent,
terminally ill adult to commit suicide. From this conclusion, it would
seem to follow that a physician does nothing wrongful in assisting a
perfectly legal act.
It was perhaps inevitable that the definition of "liberty" in
Casey would not remain an inert piece of legal dictum but would
begin to move like a juggernaut through various sectors of the law. We
certainly have not seen the last application of this dictum, for which
we probably have Justice Anthony Kennedy to thank.
Yet what is especially troublesome about Judge Rothstein's decision is
that it followed just a few months after the citizens of Washington had
declared otherwise. Washington is one of the least-churched states in
the country, so this was not a matter of the religious right clamoring
for the enforcement of an outmoded statute. Nor was it a question of a
court's intervening in the political process in order to facilitate the
legislative will of the majority. Rather, Judge Rothstein clearly and
baldly ruled that the majority of the citizens of Washington have no
constitutional right to be self-governing in this matter. In short, they
have no political competence over the private use of lethal force
against innocent members of their community-at least not when a person
is ill and gives his consent to be killed. How it is that, lacking such
power, they remain a political community in any ordinary sense of the
term is a question that was neither raised nor answered in the case.
In Federalist 45, James Madison assured critics of the Constitution that
"the power reserved for the several states will extend to all the
objects which, in the ordinary course of affairs, concern the lives,
liberties, and properties of the people, and the internal order,
improvement, and prosperity of the state." By no stretch of the
historical imagination can we believe that the Constitution would have
been ratified had the people known that they would lack the legal and
political competence, as Madison said, "in the ordinary affairs," to
keep the invalid from being killed by physicians. Roe v.
Washington raises once again the problem of federal courts
abrogating democratic self-governance guaranteed by the Constitution.
Justice Harry Blackmun, of course, will admit no embarrassment over the
fact that in Roe v. Wade the Court overturned the laws of the
states on an issue of homicide. "Roe against Wade," he opines, "was not
such a revolutionary opinion at the time." In other words, the Court
only ratified social evolution on the question. Similarly, Justice Ruth
Bader Ginsburg has said that Roe was unnecessary because
society of its own accord was moving toward the same result. Whether the
Court acted rightly or clumsily, conventional wisdom has it that no
damage was done to the common good because the Court was only acting
slightly ahead of the legislative curve.
The real history, however, does not support this view. Rather, legal
abortion came into existence much the same way as physician-assisted
euthanasia is coming into existence today: via the federal judiciary in
direct opposition to the will of the citizens in the states.
One of the chief virtues of David Garrow's book Liberty and
Sexuality: The Right to Privacy and the Making of Roe v. Wade
(Macmillan) is that he uncovers the legislative history of the debate
over "reproductive rights." Garrow himself is clearly a partisan of the
movement for constitutionalizing "reproductive rights." But he does
manage to relate the facts. And these facts are interesting indeed. Over
the course of six decades, whenever the new principle of liberty
elucidated in the Casey decision has been placed before the
people for a vote, the people have rejected it. The principle has
migrated from issue to issue; but it is always the same principle, and
it always meets with the same result.
Prior to Griswold v. Connecticut (1965), when the Supreme Court
"invented" (Garrow's word) the right of privacy, the opponents of state
laws prohibiting or restricting contraceptive devices had failed to win
a single significant legislative victory. The Connecticut and
Massachusetts statutes on the subject, adopted in the late 1870s, were
supported by the New England Society for the Suppression of Vice, an
organization that counted among its members the presidents of Amherst,
Brown, Dartmouth, and Yale. This legislation followed in the wake of the
so-called Comstock anti-contraceptive and anti-obscenity statutes of
1873, which dealt with the interstate shipment or importation of goods,
articles, or literature concerning sexuality or reproduction.
Efforts to modify the state statutes, usually in the form of an
exception for doctors prescribing contraceptives for therapeutic
purposes, were voted down in Connecticut in 1932 and once again in 1933.
A 1931 bid by Margaret Sanger to gain Congressional approval for a
doctor's amendment to the federal laws was rejected overwhelmingly in
the U.S. House and Senate. John W. McCormack, future Speaker of the
House, commented: "I can conceive of no more dangerous piece of
legislation to the future of America."
In 1938, a Massachusetts court unanimously upheld its state laws, as did
the Connecticut Supreme Court in 1940 (a court, incidentally, consisting
of four Congregationalists and one Baptist). Just six years before
Griswold, in 1959, the Connecticut Court upheld the laws once
again. In 1942 and in 1948 Massachusetts voters rejected by large
percentages referenda that would have slightly liberalized the anti-
contraceptive statutes. Connecticut voters rejected liberalization in
1953 and 1957. Every time that liberalization, much less repeal, came
before the people in the form of referenda or legislative bills, the
votes were not even close.
Garrow makes it clear that the "reproductive rights" movement won its
victories in the federal courts, not in the legislatures. Interestingly,
in the first Supreme Court case dealing with contraception, Poe v.
Ullman (1961), Justice Felix Frankfurter was so astonished by the
conservative legislative history that he asked, at oral argument,
whether some "outside authoritarian power" had coerced the Connecticut
legislature. Even after the Court struck down the Connecticut statute in
1965, other states adamantly retained various kinds of anti-
contraceptive statutes. The Supreme Court ripped these out of the
states, one by one, until they finally managed to invalidate New York's
law against the sale of contraceptives to minors in 1977. Even in the
middle of the sexual revolution, states did not willingly relinquish
their authority to exercise moral police powers in this matter.
Those working to repeal state abortion laws did not fare much better. In
1963, Alan Guttmacher admitted that any change in the abortion laws that
suggested the non-humanity of the fetus would "be voted down by the body
politic." The facts bear him out. In 1967, "reform" measures, usually
concerning therapeutic exceptions, were turned aside in Arizona,
Georgia, New York, Indiana, North Dakota, New Mexico, Nebraska, and New
Jersey. In 1969, such bills failed to emerge from committee in Iowa and
Minnesota, and were defeated outright in Nevada and Illinois. In 1970,
exceptions based on therapeutic reasons were defeated in Vermont and
Massachusetts.
In 1971, on the eve of Roe v. Wade, repeal bills were voted
down in Montana, New Mexico, Iowa, Minnesota, Maryland, Colorado,
Massachusetts, Georgia, Connecticut, Illinois, Maine, Ohio, and North
Dakota. In 1972, even as Roe was under consideration by the
Supreme Court, the Massachusetts House by a landslide vote of 178 to 46
passed a measure that would have bestowed the full legal rights of
children on fetuses from the moment of conception. At the same time, the
supreme courts of South Dakota and Missouri upheld their states' anti-
abortion laws. It was surely telling that during the very month that
Justice Blackmun finished the draft of his Roe opinion, 61 percent of
the voters in Michigan and 77 percent in North Dakota by referenda voted
down repeal.
To be sure, reformers and repealers won a few legislative victories
prior to Roe. In 1967, Colorado liberalized its law. But it
placed restrictions on abortion that were much more severe than anything
permitted by post-Roe federal courts. Reform legislation also
passed in North Carolina (1968), but with the rejection of mental health
exceptions. California (1967), Georgia (1968), and South Carolina (1970)
changed, but did not repeal, their abortion laws. The two most
significant legislative victories for the repealers took place in 1970
in New York and Hawaii. These victories, however, were narrow and
contentious, and did not approximate the percentages of pro-life
victories in other states at the same time. At the time of Roe, there
was evidence that the tide of opinion in New York had shifted back
toward laws protecting the unborn.
A few weeks before the 1972 referendum in Michigan, the polls showed
that 56 percent of the people in Michigan supported the proposal to
repeal laws against abortion. However, when the votes were counted, 61
percent voted down the repeal proposal. This was the last statewide test
of abortion on demand before the Supreme Court imposed its own solution,
and it represented an overwhelming rejection of the idea that
individuals are answerable to no one other than themselves in the matter
of abortion.
As the 1964 Congressional civil rights legislation indicates, these same
citizens supported repeal of segregation and racial discrimination. The
fact remains, however, that they would not willingly do the same for
sexual "rights." Provided a level playing field, without any
intervention by federal courts, citizens in almost every state and
region rejected the absolute claims of sexual liberty. Remarkably, into
the 1970s, the sexual revolution notwithstanding, citizens voted on
these matters more or less the same as had their grandparents.
Earlier in this century Margaret Sanger claimed a right to be "a free,
self-directed, autonomous personality." But when put to referendum, and
when debated in democratic assemblies, the American people have not
approved such a "right." Whether it was the contraception debate of the
WWI period, the abortion debate prior to Roe, or the homosexual
and euthanasia debate today, whenever the people have had a chance to
exercise their judgment, and whenever the terms of the debate are clear
and not hidden behind judicial proceedings, the people have not and
still will not buy this "right."
Perhaps the opinion polls are correct in reporting that Americans are
"conflicted" over abortion. Garrow's account of the legislative history,
however, shows that Americans never have been conflicted over the
principle that anyone has a unilateral right such as the one asserted by
the Supreme Court. Of course, this is not the lesson that Garrow wants
us to draw from his book. But it is the one we ought to draw.
For the historical record, it should be remembered that on the eve of
the federally compelled abortion "right" the citizens of Michigan voted
overwhelmingly against it; and let the historical record show that
twenty-one years later, on the eve of a federally mandated "right" to
physician-assisted euthanasia, the citizens of Washington voted it down.
The idea that the federal courts have merely facilitated the social and
political agenda of the people is a myth. The idea that the issues of
abortion, euthanasia, and homosexuality are politically unmanageable,
and must therefore be reserved for sub-political "cultural" discourse,
is a myth. Regrettably, the pundits continue to overlook the most
obvious and historically consistent datum: namely, the abrogation of the
people's legislative judgment by federal courts. Before we condemn the
people for their moral decline and insensitivity, the judicial violation
of the political order must be fully considered.
Whatever injustice and moral harm is done to the unborn and the
terminally ill, the political harm done by the federal courts is
unforgivable. The courts have not only taken advantage of the
uncertainties and doubts of the people concerning issues of major
importance, but have taken away from them the political freedom of self-
governance.
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Russell Hittinger teaches in the School of Philosophy at the Catholic
University of America.
The Balnibarbian Heresies
J. Budziszewski
The human mind has no more power of
inventing a new value than of imagining a new primary color,
or, indeed, of creating a new sun and a new sky for it to
move in. - C. S. Lewis
Far away on the other side of the world is a marvelous land named
Balnibarbi. As we learn from Mr. Gulliver, its capital is the great city
of Lagado, and in this place is an even greater Academy, filled with the
most brilliant people in the world. unfortunately, Gulliver was able to
stay at Lagado Academy for only a short while, and there were many
interesting things about the Academy that he did not have an opportunity
to find out. Having recently taken the opportunity for a longer visit, I
offer my findings to readers in the Western hemisphere.
The oldest and most honorable department in the entire Academy of Lagado
is devoted to the study of color. Indeed, the philosophy of color has
been studied in Balnibarbi for something like twenty-four centuries. It
was the Balnibarbian scholars, for instance, who first discovered that
all of the colors in the universe come from just three primaries-yellow,
red, and blue. The details are well-known even in our part of the world:
orange is derived from red and yellow, green is derived from blue and
yellow, purple is derived from blue and red, and so on. Of course the
primary colors themselves are not derived from anything.
Unfortunately, over the last few hundred years the great tradition of
Balnibarbian color philosophy has degenerated, as wave upon wave of
intellectual revolution has swept the Lagado Academy. Those few scholars
who still believe in the doctrine of primary colors are now considered
reactionary, retrograde, regressive; in a word, not smart. The three
main parties of Progress are the Monochromes, the Antichromes, and the
Neochromes.
The Monochromes object to the theory of primary colors because they
don't think it goes far enough. In their view, it's all well and good to
say that orange comes from the primary colors red and yellow, purple
comes from the primary colors red and blue, and so on, but what, they
ask, is the ultimate basis of color? They reason that there must be an
even more primary color than yellow, red, or blue-a fundamental color
from which even the primary colors are derived. For instance, some of
the Monochromes think the color from which all colors come is
chartreuse. Others think it puce. The latest Monochromes identify it as
plaid. A party of compromise, the Polychromes, works hard to miss the
point: it tries to reconstruct the spectrum with primary colors of
chartreuse, puce, and plaid. Although these theories have
disappointing consequences for interior decorating, they are bold and
original, and to be bold and original is of course the end of
scholarship.
The Antichromes are the next party. Although they too reject the theory
of primary colors, with their keener rods and cones they see right
through the Monochromes. Chartreuse couldn't be the fundamental color,
they observe, because all one can derive from it is various shades of
greenish-yellow. Likewise puce couldn't be the fundamental color,
because all one can derive from it is various shades of purplish-brown.
Finally, plaid couldn't be the fundamental color because it isn't a
color at all. The truth, say the Antichromes, is that there is
no fundamental color from which even the primary colors can be
derived. This is the crux. For if there is no fundamental color, then
color has no Ultimate Basis; and if color has no Ultimate Basis, then
color isn't real. This logic is so far beyond previous semblances of
reason that it might almost be considered a new logic altogether. Its
conclusions are equally breathtaking: everything that we call a color is
just a figment of our imagination, a projection of some desperate human
desire onto a universe of cold and monotonous shades of gray. For
discovering the tragic truth, expressed in their motto, "Color is Dead,"
the Antichromes are rightly praised as pioneers. They eat only burnt
toast and milk, and watch only black-and-white television.
Finally we come to the Neochromes, the most avant-garde party of all.
They agree with the Antichromes that color has no Ultimate Basis; they
agree that the universe is gray, hue and tint existing only in our
imaginations; they agree that we create the blue of the night and the
blush of the rose in our minds, rather than somehow discovering them in
the order of things. But what, they ask, is so tragic about that? Is it
not liberating? Smash the palettes! Pulverize the prisms! Away with the
tyranny of yellow, red, and blue! The creator of color is MAN! Because
of their verve and dash, the Neochromes, like the Monochromes, divide
into factions. Individualist Neochromes say that every human being is
entitled to his own primary colors. Communitarian Neochromes object that
permitting every human being his own primary colors would lead to
difficulty with traffic signals and things of that sort; although every
country is entitled to its own primary colors, they say, individuals
must toe the line. In the end, however, communitarianism comes to pretty
much the same thing as individualism because no two communitarians can
ever agree upon the spectrum their country should use. In a sort of
compromise, they usually wind up mixing all the colors together and
painting everything a tepid shade of brown. Even so they quarrel over
whether it should be maple, beige, or taupe.
We too have a great tradition. Just as the Balnibarbians learned long
ago that all color in the universe is derived from just a few primary
colors, so we learned long ago that all moral law in the universe is
derived from just a few primary moral laws. Just as the primary colors
are the same for everyone, so these natural laws are the same for
everyone. Just as the primary colors are recognized by all who hear of
them, so these natural laws are recognized by all who hear of them. Just
as the primary colors do not have to be derived from anything because
they are the source of the other colors, so the natural laws do not have
to be derived from anything because they are the source of the other
moral laws. And just as the Balnibarbians have lost their ancient wisdom
about color, so we have lost our ancient wisdom about morality. The
colorblind lead the colorblind, and the blind the blind.
Let us further explore the parallel. In the first place we have thinkers
who treat moral law as the Monochromes treat color. They insist on some
ultimate value which they rank as even more fundamental than the natural
law. As to what this ultimate value is, they divide, some naming
pleasure, some naming liberty, some naming another value, such as
privacy. Working hard, like the polychromes, to miss the point, a party
of compromise tries to reconstruct the moral law from fundamental values
of pleasure, liberty, and privacy. Despite all their disagreement, these
thinkers have one thing in common: any moral law that cannot be traced
to their ultimate value they simply ignore. In this way they manage to
ignore quite a bit.
In the second place we have thinkers who treat moral law as the
Antichromes treat color. They insist that there is no real good and
evil, no real right and wrong, and that the universe is merely an
enormous screen onto which we project our desires and call them moral
laws. According to Friedrich Nietzsche, the granddaddy of all such
theorizers, God is dead, so everything is permitted.
Finally we have thinkers who treat moral law as the Neochromes treat
color. Just as Neochromes think that human beings can create new primary
colors, so these thinkers insist that human beings can create new and
different moralities. Of course, this is absurd. If someone claimed to
have created new primary colors, you could be sure that he had merely
made a new blend of the old ones, and the same is true for the primary
principles of good and evil.
For instance, you can make up a new rule that killing infants is right
instead of wrong. Nobody can stop you. But if you want to get pregnant
young women to believe it, the only way to do so is to confuse them
about the moral laws they already know. Your first step will certainly
be to turn down the volume on the law of love, which commands
sacrificial care for the young, the innocent, and the helpless with whom
God has trusted us. After that you might want to turn up the volume on
the far less important law of shame, which commands avoidance of
scandal. If you can induce hysteria and a feeling of being trapped, then
you may even be able to make an illegitimate appeal to the law of self-
preservation. Is it clear how this works? Just like a painter who likes
two of the primary colors, dislikes the third primary color, and, after
a little mixing, claims to have invented a new one.
Is our situation hopeless? I don't think so. True, not only the
discipline of moral philosophy but the culture itself seems to be going
down the tubes, and I think that if we had to save ourselves, we would
be in a sorry state indeed. But what is impossible for man is possible
for God; the faith itself got its first big chance during the era when
Roman virtue was in decay. That didn't mean that Rome was preserved.
Nevertheless a new civilization rose from its ashes.
For the teacher, faith is renewed by classroom experience. During a
recent semester I taught Aristotle's Ethics. A young man came
to me after class and said, "Professor, I've got to tell you that I'm
getting scared." I asked him why. He replied, "Because you're scaring
me. I'm shaking." I asked him, "How am I doing that?" He replied. "It's
Aristotle. In this book of his he keeps talking about virtue." I asked
him, "So?" He replied, "It's making me realize that I don't lead a
virtuous life. And I'm shaking." The gospel of John teaches that the
Holy Spirit came to bring the world conviction of guilt in regard to sin
and righteousness and judgment; I never thought He might use a pagan
philosopher to do it.
On another occasion I was approached by a student who had spent months
devouring not ancient, but contemporary, works of ethical and political
theory-the sort of thing they study at Lagado Academy. He told me that
he had been thinking about God, something he had never done before. He
asked, "Do you think I'm crazy?" When I replied, "No," he was greatly
relieved. But I asked, "What first made you think of God?" He replied,
"None of these writers says anything about Him, and it seems to me that
they're building their theories on nothing." The lesson was clear; his
books had made him think of God not because they spoke of Him but
because they did not. As in the dark night of John of the Cross, God had
manifested Himself by the very fact of his apparent absence.
What does it mean to profess Christ in a university and world that seem
bent on re-paganizing themselves? Pagans had the natural law. Christians
have more than the natural law, because they have the gospel. Neo-pagans
have less. This paradox requires explanation.
In one sense, of course, nobody can have less than the natural law: for
its primary principles are nothing but those principles of right and
wrong that we can't not know. As Paul explained in his letter to the
Romans, God has written His law even on the hearts of the nations. This
is why they had consciences just as Jews and Christians did. The law
written on the heart is a birthright; it comes with being human.
But in another sense, anybody can have less than the natural law, for as
each of us knows perfectly well, it is possible to know something at one
level and yet deny it at another. We can't get rid of the law written on
the heart, but we can try to write over it. The abortion movement, for
instance, is a vast collective exercise in denial: an effort to expunge
the guilt of killing one's children, not by repenting and throwing
oneself upon the Lord of Mercy, but by getting others to join in the
killing. Consciously, the activists deny that they have broken the
natural law; unconsciously, they know they have and seek absolution in
politics. What goes for many social movements goes double for many
academic theories. In large part, denial is what the post-Christian
University is about.
Just as Paul talked about the truths about God and his law that we can't
not know, so he talked about the spiritual consequences of pretending
that we don't know what we really do.
For although they knew God, they neither
glorified Him as God nor gave thanks to Him, but their
thinking became futile and their foolish hearts were
darkened. Although they claimed to be wise, they became
fools. . . . Furthermore, since they did not think it
worthwhile to retain the knowledge of God, he gave them over
to a depraved mind. (Romans 1:21-22a, 28a)
What I take this to mean is: if we throw away the knowledge that we
don't want, we will lose the knowledge that we do want; if we try to
deform our intellects, God will let us. The University may have
forgotten that, but the heart remembers.
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J. Budziszewski teaches in the Department of Government at the
University of Texas at Austin.
Liberty is a Lady
Gregory R. Beabout
Nadine Strossen, president of the ACLU, was in St. Louis recently to
debate the question of the freedoms guaranteed by the Bill of Rights.
Calmly and articulately, she defended the many liberties that make our
country great: the freedom to read child pornography in the comfort of
your living room, the right to make an honest living as an abortionist,
the independence to do whatever you want without institutional
constraints. She expressed concern that in the nineties there seems to
be a new attack on our American civil liberties. In our great cities,
many citizens are no longer free to take a safe evening stroll down
their neighborhood sidewalks. How can we make freedom complete?
As a fellow lover of freedom, I share certain of Ms. Strossen's
concerns. Still, we had our disagreements. After the debate, I spoke
with her about the meaning of freedom, and it became clear that some of
our disagreements about certain of the civil liberties she held
particularly dear came down to a difference in our understandings of
liberty. Our discussion led to talk about the etymology of the term
freedom. Now, the primary etymological sense of the term "free" is
"dear, beloved." The root comes from the Old High German "fri,"
which stems from the Indo-european root "prijos" (dear,
beloved) and is related to the Sanskrit "priyas" (dear) and
"priya" (wife, daughter). Likewise, there is a connection with
the Old English "frigu" (love) and "freon" (friend).
The German and Celtic meaning, "not in bondage or subject to control
from outside," comes from calling "dear" (fri) those members of a
household connected by ties of kindred with the family head. A free
person is as a friend or beloved, one joined to another in mutual
benevolence and intimacy. In Danish, this connection between freedom and
love is captured in the verb "frie," which means "to propose," that is,
"to make an offer of marriage." Thus, the Danish word for betrothal
captures both the sense of free choice and the sense of harmonious love.
The connection between freedom and a loving wife is made clear in Old
Norse mythology. The Teutonic goddess Frigg is the wife of Odin. In Old
High German, she was called Frija; in Lombard, Frea. In English, the
sixth day of the week, Friday, is named after her. Friday is the day we
celebrate the freedom of Frigg. In Romance languages, Friday is named
after Venus, as both are goddesses of love. Mythologically, Frigg
represents love and unconstrained devotion. Frigg is related to Odin in
love. (Wednesday is named after Odin, the chief Norse god.) Frigg stays
with Odin because she is free. She is not forced, like Odin's slaves, to
stay with him. Odin dwells in Frigg's bosom. Frigg personifies the
primordial connection between freedom and love. As the foremost goddess
in Eddic mythology, Frigg was invoked by the childless for comfort and
aid. She is considered genial, a promoter of marriage and fertility, a
loving helper.
This sense of freedom as a loving woman continues to resonate with us.
Artistic depictions, like the Statue of Liberty and Delacroix's famous
painting of "Liberty Leading the People," always portray freedom as a
lady whose love brings people together.
What comes from thinking that liberty is a lady? What is to be learned
from thinking that true freedom has its basis in love? While I was
thinking about these questions, Ms. Strossen also appeared to be deep in
thought. Her observation was unexpected. She asked me, "I wonder what
Catherine MacKinnon would think about saying that freedom is a loving
woman?"
Alas, Ms. Strossen was called away, and we were unable to continue our
conversation, but providence or chance has a way of doing that
sometimes, so I have had to carry on the conversation with myself.
MacKinnon on freedom as a devoted wife: it was a haunting suggestion,
and I have spent some time thinking about the possibilities.
Even in my first reading of her acclaimed Toward a Feminist Theory
of the State, I saw that Catharine MacKinnon is no ordinary
radical. In her I recognized one of those writers who has a style
deserving of special hermeneutical care. At first, I thought that she
should be read in a way analogous to the method of watching drama
recommended by Kierkegaard's aesthete: come in late and watch only the
third scene of the second act. I'm sure that there are many readers like
me who have used this interpretive technique with Catharine MacKinnon's
writings. Skip the boring stuff on Marx and Engels and go right to the
juicy stuff on rape, abortion, and pornography. That's all I've heard
most people talk about anyway, so I was confident that I was on to the
right approach.
Even using this time-tested hermeneutical principle, I was left with the
problem of how to approach the text. To be sure, MacKinnon's writing
yields numerous pleasures, but what are the proper fruits to gather from
so ripe a source? Initially, I found myself reading her the way a
fourteen-year-old schoolboy used to read a smuggled copy of Lady
Chatterley's Lover. At first there is the confusion of having to
work through something more difficult than expected. Why did they tell
me that this was forbidden? Where's the "good" part? Then everything
changes: a word you've never seen in print before. With MacKinnon, its
just that you've never seen such vulgarity in a book printed by Harvard
University Press. There is that brief moment of piqued excitement. The
academic smell of the musty clothbound volume usually associated with
long, arduous tomes that rarely excite is transformed into a momentary
rush of blood. Her writing has been building up to it, and now the "F"
word jumps off the page, swirls into association with the fleshy feel of
the textured paper and the dusty smell of cultured print filling the
head. Enough erudite truck driver talk. The day's reading is done.
Experience has shown that this is not ultimately the correct
interpretive approach to MacKinnon's work. First, this sort of
satisfaction is too short-lived. It is something like the pleasure
derived from turning on the car radio in the morning, expecting to hear
Paul Harvey with the rest of the story, but the kids have been playing
with the knobs again. Instead of the deep tones of Paul Harvey, it's
Howard Stern's whine describing an adventure with his pet cat. A moment
of distracted confusion. What is this? Then the delay before changing
the station. Interest has taken hold. Is he really talking about what I
think? Has it come to that? The double entendre has given way to the
explicitly crude. Now the source of pleasure changes. Instead of the
lapsed delight that comes from accidentally hearing a description of
rank bestiality, there is the brief relish of knowing that the culture
is doomed, that by the turn of the century there will probably be wild
animals taking over downtown, as when wolves used to turn up the Appian
Way to the Capitoline Hill in the sixth century. Alasdair MacIntyre is
right: the barbarians have been ruling us for quite some time.
But these kinds of pleasure don't last. It might have been exciting to
see a profane word in a Harvard University Press publication once, but
in an age when Michael Jackson grabs his crotch at halftime during the
Super Bowl, it's unlikely that one will happen upon much prurient
pleasure from a scholarly book on legal theory spiced with vulgarities,
and even more difficult to feel better than others by realizing that our
culture is dying. Just about everyone sees the clouds by now, and
there's very little satisfaction in secretly glimpsing the obvious.
A more insightful interpretation of MacKinnon comes from focusing not
simply on her occasionally lurid vocabulary, but on the anger that
stands behind her argument. Every careful reader will discern that
beneath the text, there is a rage as powerful as that of a four-year-old
having an all-out tantrum. My wife and I used to be filled with
amazement when our daughter would throw herself on the floor in a fit
and begin thrashing. I suppose that some parents, in frustration,
immediately try to stop the screaming. Still, I trust that many have
done what we did on more than one occasion: we let the tantrum run its
course. My wife and I would share a secret glance of amazement at the
power and force of the screams. Together we produced this child, and
now, through sheer force and will, she is on the verge of screaming
until her voice is lost. What energy! What commitment! What would it be
like to be able to focus all of one's anger to such a point? Surely
MacKinnon's editors must feel the same way: do we try to comfort her, or
should we let her continue to shriek? Solace would no doubt be ruinous
to her scholarship. Let us celebrate the puissance of guided grief. Why
can't we all learn to direct our miseries in this way? If we could only
teach our four-year-olds who have tantrums to use footnotes as
effectively as MacKinnon, we could fill the world with angry scholars
enough for every prestigious university press.
What an unfortunate circumstance that MacKinnon's talents are wasted
here in North America. If only she had been in Czechoslovakia ten years
ago, or in the Soviet Union in the late forties, she could be world-
renowned. They would have locked her away for her radical ideas, if not
for her outrageous claims. As with Vaclav Havel, the whole world would
have come to her in sympathy. If only MacKinnon had been sent to Siberia
to continue her project secretly from her cell in the work camp, more
people might listen and tremble.
But alas, in these United States, you can write about whatever you want
and no one seems to notice much. You can stand on the steps of the State
House and declaim preposterousness, and most people just walk by without
much notice. Or worse, an east coast academic publisher will print you.
Next, Newsweek runs an article about you. Before long, your fifteen
minutes of Warholian attention runs out. The curse of being a radical in
America: instead of getting thrown in prison like Socrates for
presenting ideas that challenge the established order and corrupt the
youth, you become part of the white noise of the popular culture.
The problem now is not that your ideas are ignored, but that they are
competing on the same level as Jay Leno's monologue and Regis' chatter
with Kathie Lee about the injustice of that call in the fourth quarter
of Saturday's Notre Dame game. Imagine Sally Jessy Raphael interviewing
Thomas a Becket: "Alright, Tom, now why are you being so insistent about
all of this?" A confused look from Becket. Cut to the commercial. The
narrator announces, "Tomorrow, gay men who enjoy watching their mates
make love to women." What if instead of using totalitarian force, Stalin
used a devious communist plot a la Orwell's Animal Farm to
transform the meaning of free expression? Any one can freely say what he
wants and no one will take him very seriously.
Still, MacKinnon's skill as a writer demands that we do more than go
behind the text to adore the anger that generates her power. We should
also praise her skill in developing her argument, for she stands in a
line of underappreciated American rhetoricians, the puritans. Even
before Santayana, virtually every generation of Americans had declared
that it had identified the Last Puritan in America. And yet, each new
generation seems to create its own kind of Jonathan Edwards, so it is
time for some skilled moviemaker to produce a film that will bring the
glories of puritanism back to their rightful place of esteem in American
life. MacKinnon could be a model of the new feminist puritan.
From the time of the early New England preachers, it has been recognized
that the key to the skilled sermon is not volume but heat. The way to
create heat is the ability to manipulate emotions. Of course, the most
effective emotion to manipulate is guilt. Like the best pastor in the
Old North Church, MacKinnon does not begin by shouting. She is calm,
dispassionate, matter-of-fact. She refers to scholarly texts, to state
laws, to legal precedent.
Like the artisan who sits in his pew listening to the sermon, her reader
is well dressed and attentive. "Yes," he thinks, "it is terrible how
rape has gone on in our culture." She turns to him now and is stern. The
law is male. It has been written by males for males. "Yes," he thinks,
"it is true, the law has been oppressive to women." Just as the
puritanical preacher is more effective with upstanding citizens who feel
guilt than with criminals who don't, MacKinnon's reader is unbuttoning
his vest. She has hooked a secret shame. Now to turn up the heat.
She draws a distinction between virginal young girls and prostitutes.
Look how the law treats them differently. This is a male distinction.
"Yes," he thinks, "it is true, the law does impose a male perspective."
Why is it effectively legal to rape a prostitute? she asks. Her voice is
building here. She needs this point in her "argument." If he consents
here, she has him. "Yes," he thinks, "it is true, the law does treat the
prostitute as having consented." Her eyes light up now, her voice is
swelling. The male-made law says that you may rape a prostitute because
it assumes that men can do whatever they want with her. The male-made
law says that you may rape your wife because it assumes that men can do
whatever they want with her. Her reader is sweating now. He feels
guilty. He knows that he has talked his wife into having sex even when
she was tired. His heartbeat has increased. A single bead of sweat
begins to drip down his forehead. What is heterosexuality? she asks. It
is "the eroticization of dominance and submission"; it is "males over
females." The system works by perpetrating powerful masculinity over
inferior female victims, exploiting women for the enjoyment of men.
She turns now to the women in the congregation. Most of you have been
sexually abused as children. Some of you are too repressed to remember
it. Most of you have been raped. Some of you are afraid to admit it.
Some of you are raped every day, and you aren't even aware of it. This
is the result of being duped by a system of male-dominated laws. The law
is made by men and for men. Men, you are all rapists. Wives, you are all
whores.
Here is a skill even more remarkable than that of the most talented
clergyman. The good reverend would measure the human heart against a
higher reality, God's decrees which transcend the human laws of this
world. Sitting in the pew, our listener may appear outwardly just and
upright, but God, who peers directly into the human heart, sees what is
really there. MacKinnon's skill is greater, for she makes no appeal to a
higher court, and yet she is able to draw a conclusion contrary to
reality. She has the ability to look lawyers and scholars in the face-
intellectuals who have long ago given up stock in the transcendent
world-and she convinces them that they are rapists and whores. Let us
applaud her skill in argumentation, if specious. Let us marvel at her
rhetorical mastery, if demagogic.
Quietly, let us hope that no one is so rude as to point out that
MacKinnon's conclusion is a fiction. Most men aren't rapists. Most women
aren't prostitutes.
Thus our interpretive framework, that MacKinnon means what she says, has
shipwrecked itself on the truth. Reality is a stubborn thing. But our
age lacks visionaries, so maybe we ought not to criticize a prophetess
when she comes along. Just because she creates a fiction, should we
abandon her insights? How should we approach MacKinnon's poetry? How
should we understand her myths? Or as Nadine Strossen asked me, "I
wonder what Catharine MacKinnon would say about freedom being a devoted
wife?" Perhaps there is a kernel of truth in MacKinnon's feminist theory
of law, a teaching about the meaning of freedom.
The origin of the meaning of freedom is the love of a devoted wife, the
most high goddess of the Norse. but the Latin "liberty" also stems from
a goddess, Libertas, who was worshipped in ancient Rome as the
personification of freedom. Her temple was set up on the Aventine Hill
by Tiberius Gracchus in the second Punic war. After suffering successive
destructions, the temple was rebuilt by Asinius Pollio and its atrium
was used as a library to store census tablets. A statue of
Libertas was erected by Clodius on the site of Cicero's house. In
Latin, liberi are children, sons and daughters of their
parents, literally the free members of a household. The root liber comes
from the Greek eneuvepoc (free) which originally meant
"belonging to the people" or "of legal descent." The Greek term is in
turn derived from the Indo-European base leudhero- (people,
family, nation) which comes from the Indo-European leudh (to
grow). Thus, those who have ties as a family, who are part of our
people, who have grown from us, are free. Lady Libertas
personifies the freedom of being a part of the family.
If we take this cue-that in some sense liberty is a lady, that the true
source of freedom is love, the love that a devoted spouse has for one's
beloved-where does it take us? Freedom's care for the beloved involves a
decision for which one is responsible, and we have retained this
emphasis on choice. But the notion of freedom as a loving communion
seems to be virtually lost. To the modern ear, "I am free" has come to
mean simply "I choose" or "I can decide for myself, without
interference." This emphasis on the freedom to choose-independently,
unencumbered by others-increasingly comes to view traditional
institutions as the main obstacles to freedom. Don't have your personal
dreams hampered by an outdated heritage. Don't let your family influence
your choice. Don't let the church restrict your decision. Don't let your
friends hold you back. Don't let your spouse limit who you can be. Don't
let established standards be imposed on you. Don't let the masculine
system determine your choice. O soul, repressless, you should be free to
do as you please, to choose what you want. A free choice is yours, and
yours alone.
In separating freedom's ability to choose from the loving communion that
frees, liberty has been abused, dismembered, and raped. The wholeness of
the woman of freedom has been reduced to the receptacle of choice. Lady
Liberty has been neutered, so that the flesh of freedom has been
stripped off, the tenderness vanquished, the feminine personality
plundered. When this disrobed freedom delivers her promise of
independence, it's not clear whether we really want what we are asking
for. What blessings do we hope to secure from liberty? The huddled
masses yearning to breathe free end up finding that the independence to
be an individualist leaves one feeling alone, alienated, bored, anxious,
lost, and scared to go out at night.
In a certain way, MacKinnon may be right. Perhaps there is a
metaphorical sense in which the masculinity of a certain kind of law has
stripped and raped freedom of its substance. Freedom-the lady of
liberty-has been raped. She has been treated as an object for
manipulation by sacrificing the loving communion at the heart of freedom
for an overemphasis on the element of individual choice. When freedom
becomes nothing more than unobstructed choice, the promise of freedom no
longer has anything to do with love. Freedom actually comes to mean the
guarantee of the right to make bad choices, choices that fracture
families, choices that break down the relationship between members of
the community, choices that destroy our efforts at forming a more
perfect union, and ultimately choices that ravage freedom.
At this metaphorical level, MacKinnon has unwittingly captured a more
profound criticism of the ACLU's account of liberal rights than she may
know. It is unfortunate not only that MacKinnon seems to be, like
Strossen, ironically unaware of the importance of the feminine in the
origin of the idea of freedom, but also that MacKinnon's account of the
relations between men and women offers little room for the love that
would help us more fully strive to make freedom complete.
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Gregory R. Beabout, a new contributor, is Associate Professor of
Philosophy at Saint Louis University.
On The Other Hand
Toward A Disease-Free America
Peter L. Berger
From the New York Times-Advocate,
January 20, 2002:
As widely expected, President Hillary Rodham's State of the Union
Address dealt mostly with the Crusade for a Healthy America that had
been the major initiative of the first year of her administration. The
President spoke with her usual eloquence, apparently without a written
text or notes. She was frequently interrupted by tumultuous applause
from members of both houses of Congress, the first elected under the
quota system set up by the Equitable Representation Act of 1998.
There was some surprise evinced about the lengthy and generous credit
given by the President to the achievements of her ex-husband's two
administrations, which, she said, had laid the foundations of the
present initiative in health policy. She cited, of course, the
establishment of the National Health Security System (NHSS), pointing
out that it had been President Clinton's achievements in foreign policy
which had made it possible for the nation, freed from the distractions
of its foreign entanglements of an earlier period, to grapple
successfully with its internal problems.
During the second Clinton administration the United States had finally
been placed in a position to put its own house in order by ceasing to be
drawn into the endless overseas quagmires so sapping of its energies in
the past. There was the withdrawal of all American troops from countries
outside the Hemisphere; the resignation of the United States from NATO
and from GATT; the inauguration of the tariff regime of the Americas
Free Trade Community, which drastically cut disadvantageous economic
relations with Europe and East Asia; and the breaking of diplomatic
relations with all countries failing to meet the certification criteria
of the State Department's Democracy and Human Rights Inspectorate.
President Rodham expressed some regret that American citizens were now
barred from travel in most areas outside the Hemisphere, but in any
case, as she put it, "Americans have little desire to travel to places
where gays and lesbians cannot marry, where reproductive rights are not
protected, and where smoke is blown in their faces and lethal food put
on their plates in every restaurant."
The President noted that The Crusade for a Healthy America, under the
able leadership of Health Czarperson Chelsea Rabinowitz-Hakamoto, has
been engaged in two types of activities-completing the process begun
with the establishment of NHSS, and starting out in new directions
toward the stated goal of "A Disease-Free America by Mid-Century." In
the President's words: "We are serious about this. By the middle of this
century most Americans will die of old age-and we are working on that
too." A few critics (Republicans, under the new electoral system,
reduced to a mere 10 percent in the two houses of Congress) pointed out
that this statement was not completely accurate, since a sizable number
of Americans were excluded from NHSS by non-eligibility rules: notably
recalcitrant drug-users, smokers, and individuals consuming alcoholic
beverages above the NHSS-approved level. The President acknowledged this
by remarking that "Unfortunately, there will always be some people who
will deliberately choose disease-generating lifestyles." She added:
"This should not divert the great majority of our fellow-citizens from
achieving the healthy life span that advanced medical science and sound
health policy has now placed within their reach."
The President devoted some time to measures falling under the heading of
unfinished business. These include the enactment of additional NHSS
regulations concerning the rationing of medical services for individuals
over the age of sixty-five, the clarification of rules presently
governing physician-assisted life-termination, and penalties for
patients seeking so-called "private" medical care outside NHSS (thus far
only doctors providing such care have been subject to criminal
prosecution). The President promised that she will propose legislation
to Congress on these matters in the near future. Other unfinished
business pertains to the Comprehensive Anti-Tobacco Act of 1996. The
President will propose legislation that would allow officers of NHSS and
the Department of Social Services to remove minor children from homes
where smoking is practiced, to provide funds for more prison space to
accommodate the growing number of people convicted of illegal tobacco
trafficking, and to authorize the use of American military forces to
assist Hemisphere governments in the suppression of tobacco cultivation.
The major new direction announced by the President is a campaign against
cholesterol. "Every five minutes an American dies of cardiovascular
disease. We will not tolerate this human waste any longer," the
President declared to unrestrained applause. Czarperson Rabinowitz-
Hakamoto has, she said, been instructed to take a number of measures
immediately under a Presidential directive-requiring warning labels on
all food products exceeding FDA-approved levels of fat and cholesterol,
instructing the Customs Service to interdict the import of such foods,
and launching a massive public education program to encourage sound
nutritional habits. Congress will be asked to prohibit all advertising
of unhealthy food products, to authorize FDA inspectors to enter
restaurant kitchens at will to monitor compliance with nutritional
guidelines, and to enact tax incentives for individuals who can provide
proof of engaging in regular aerobic exercise. Rabinowitz-Hakamoto will
coordinate the efforts of all Federal agencies in the anti-cholesterol
campaign-in addition to NHSS, the FDA, OSHA, Treasury, Department of
Education, IRS, FBI and, if indicated, the Pentagon as well.
"A famous economist once said that a nation's soul is revealed in the
government budget," the President said. "When all the measures I have
proposed here are enacted, health and health-related activities will
account for 70 percent of the Federal budget-ten times, I may add, the
portion allocated to defense. We can, I believe," she continued, "be
supremely satisfied by the state of America's soul."
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Peter L. Berger is author, most recently, of A Far Glory: The Quest
for Faith in an Age of Credulity.