In Planned Parenthood v. Casey (1992), the Supreme Court made abortion the benchmark of its own legitimacy, and indeed the token of the American political covenant. To those who cannot agree with the proposition that individuals have a moral or constitutional right to kill the unborn, or that such a right defines the trans-generational covenant of the American political order, the Court urged acceptance out of respect for the rule of law. “If the Court's legitimacy should be undermined,” the Court declared, “then so would the country be in its very ability to see itself through its constitutional ideals.”
If the Court does not claim to act merely in its own name, but for the common good and the rule of law, how then should citizens regard the effort to link abortion with the legitimacy of the Court itself and thus, it would seem, with the legitimacy of our current political regime? We could put this in a different way by asking whether the Court—in laying down rules without authority to do so and then asking for obedience in the name of the common good—has acted ultra vires, beyond its constitutionally assigned powers. If so, its commands are not legitimate. The rule of law prohibits reallocation of shares of authority without the consent of the governed. Since the political common good depends on no branch of government taking more than its share of authority, obedience should not be given to an act that violates the foundation of the rule of law.
So put, we have only stated a principle. Does it apply to the actions of this Court? It seems to me that the situation is ambiguous and admits no clear answer. There is no doubt but we live today under an altered constitutional regime, where the rules are no longer supplied by a written document but by federal courts defining the powers of government ad hoc, through their own case law. This profound change from our previous order of government is often hidden by political and judicial rhetoric that gives honor to and even cites the written Constitution; yet, in contemporary theory and in practice, the document is really an authoritative occasion for, rather than a norm of, judicial interpretation. The changes have been further obscured by the fact that the new regime was not ratified by amendment or constitutional convention.
But this profound and confusing change does not necessarily make the new constitutional order illegitimate—at least not in the sense we are exploring here. It is plausible to argue that this new regime evolved over time with the tacit consent of the governed. Operationally speaking, every sector of government has acquiesced in the Court's understanding of its own powers and the powers of rival authorities. Though the elected representatives of the people may complain about particular judicial rulings and try to influence those rulings through judicial appointments and party platforms, none challenge the authority of the ruling principle itself. Our elected representatives do not merely comply with, but obey, the Court's understanding of the constitutional order, and they have tendered obedience for fifty years.
Thus, when the Court in Casey asks that its case law be given the obedience due to the Constitution, and when it insists that, above all, it must remain loyal to its own recently established precedents, it makes a reasonable request within the context of the new constitutional regime. In this new regime, judicial interpretation rules the text, according to the Court's perception of the common good and the changing needs of the polity. It can be pointed out that this is a reckless kind of polity—allowing the Court to define the nature and scope of political power on an ad hoc basis, without benefit of the debates of a legislative assembly or a constitutional convention, and without the contest of facts typical of an ordinary trial court. One would be very surprised indeed were it not to engender great injustices. For all of that, however, the Court does not necessarily act ultra vires.
But the issue of legitimacy can be examined from another point of view. Citizens can have a duty not to obey a law if it seriously injures the common good. And were such laws propounded as essential features of the constitutional order itself—which is to say, propounded as laws governing the making of any other laws—then we could reasonably ask about the legitimacy of that regime. Bearing in mind that we are speaking not of isolated statutes, but of authoritative renderings of the fundamental law, such laws would be laws (1) that deny protection to the weak and the vulnerable, especially in matters of life and death, and (2) that systematically remove the legal and political ability of the people to redress the situation. A polity that creates and upholds such laws is unworthy of loyalty.
The first thing to realize about our new regime is that the abortion right is not a unique or isolated feature of contemporary jurisprudence. The Court's own case law shows that in order to maintain the abortion right at the level of fundamental law, many other sectors of the states' legal order, at both statutory and common law, need to be altered: family law, marriage law, laws regulating the medical profession, and, as we now see with the recent circuit court decisions, criminal laws prohibiting private use of lethal force. The principle of Casey cannot leave the other institutions of the polity unaffected. Moreover, the Court's own case law shows that it is impossible to disempower political opponents of abortion without going on to disempower them politically on other issues as well. What is one's place in a political regime that regards abortion as defining of the constitutional covenant, that expands the principle to other institutions of both private and public law, and that politically disempowers opponents?
Three decisions reached by federal courts this past spring reveal a pattern of fact that will allow us to take a broader view of the situation. These decisions exemplify both the inherently expansive nature of the new regime's abortion jurisprudence as well as its disempowerment of political opponents.
By statewide referendum in 1991, voters in the state of Washington had reaffirmed the provision of the criminal code that outlawed persons in its jurisdiction from “knowingly causing or aiding other persons in ending their lives.” On March 6, 1996, the Ninth Circuit Court of Appeals ruled in Compassion in Dying v. Washington that the state of Washington is constitutionally powerless to prohibit physicians (its own licensees) from using lethal force to assist suicides. Seizing upon the infamous dictum of the abortion decision in Casey-“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 Stephen Reinhardt not only posited a “right to die,” but also deemed the state's legislative motive cruel: “Not only is the state's interest in preventing such individuals from hastening their deaths of comparatively little weight, but its insistence on frustrating their wishes seems cruel indeed.”
Meanwhile, in New York, the Second Circuit Court of Appeals ruled in Quill v. Vacco that while there is no “historic” right to die, the state of New York violates the equal protection clause of the Fourteenth Amendment with its prohibition of assisting suicide. By permitting patients to refuse treatment at the end of life, but not allowing physician-assisted suicide, the state unfairly treats similarly situated persons. The court brushed aside the distinction between letting die and killing. Although it was claimed in the press that the Second Circuit's opinion was more moderate because it did not posit a “right to die,” both decisions reach the same result from the same principle.
Not surprisingly, in New York that principle was also the dictum in Casey. Judge Miner, writing for the majority in the Second Circuit, asked: “What concern prompts the state to interfere with a mentally competent patient's ‘right to define [his] own concept of existence, of meaning, of the universe, and of the mystery of human life,' when the patient seeks to have drugs prescribed to end life during the final stages of a terminal illness?” Miner answers, “None.” In other words, given two patients, each of whom can define the meaning of the universe, the state of New York violates equal protection when it allows the one to “define” himself by having treatment withdrawn while it forbids the other to “define” himself by requesting that a physician assist his suicide.
The third decision concerned a 1992 statewide referendum in which the voters in Colorado adopted an amendment, known as Amendment 2, to their constitution prohibiting laws that make homosexual orientation, conduct, and relationships the bases of special entitlements to minority status, quota preferences, and claims to discrimination. On May 20, 1996, in Romer v. Evans, the Supreme Court ruled that the amendment is totally without a rational basis, and is “born of animosity toward the class of persons affected.” The Court declined to say whether its decision silently overturns Bowers v. Hardwick (1986), which upheld the state of Georgia's anti-sodomy law. Yet if Colorado's amendment has no basis other than animosity toward homosexuals, it is difficult to understand what rational grounds might exist for anti-sodomy laws, or, for that matter, laws restricting marriage to man and woman.
These decisions have two things in common. First, they expand individual liberty against traditional morals legislation. And second, they impugn the motives of legislators, which the Ninth Circuit found “cruel” and the Supreme Court found hateful. This is the pattern that we need to notice if we are to understand the legal and political mind of the new regime. This pattern did not begin, however, with the decisions of this past spring.
Earlier in the century the Court aggressively protected individual rights of contract against the democratic process in the states. But after World War II, the Court began to insert itself into what James Madison called the “internal” objects of state governments, particularly the culture-forming institutions, including education, religion, marriage, and government's domestic control over matters of life and death. Reasoning that the people do not wish these things to be left to the ordinary legislative process, the Court incrementally created individual rights as immunities from the political ordering of these “internal” objects.
The Court's religion jurisprudence was especially important, and indeed was a kind of seedbed for the new regime. In 1947, the Court ruled that the establishment clause must be applied against the states, and that no establishment means no “promotion” of religion. In 1948, John Courtney Murray called the new religion jurisprudence “rigid, ruthless, sweeping,” and insisted that the Court's doctrine “cannot be approved by the civic conscience” (in an essay first printed in First Things, October 1992). Murray was correct about the sweeping nature of the new doctrine; over the course of twenty years, religion was removed, bit by bit, from the civic order of state polities. Murray, however, did not live to see the next step. In 1971, nonestablishment came to mean that legislation could have no religious “purposes,” even when the immediate matter and effect of the legislation is secular. Justice O'Connor would later add that such secular purposes must even be “sincere.”
Thus, the Court prohibited public events which had been practiced in every jurisdiction since the founding of the nation. Then, to sustain its reasoning in the face of new litigation, the Court found itself having to bring ever new objects under its scrutiny, such as moments of silence and abstinence education. Indeed, Justice Kennedy recently has gone so far as to maintain that the belief that “there is an ethic and a morality which transcend human invention” is itself religious. Ultimately, the Court had to interrogate the subjective motivations of legislators in order to detect the presence or absence of religion.
In a separate line of jurisprudence, the Court moved on to issues of sex, marriage, and abortion. In hindsight, we see that the new lifestyle rights were inherently expansive. In Griswold v. Connecticut (1965), the new right of privacy was meant to protect marriage, and was justified by reference to the “traditions and conscience of the people.” In Eisenstadt (1972), however, the privacy right was expanded to cover any reproductive decision made by individuals. In Roe (1973), it included elective abortion. In Carey (1977), it included the right of teenagers to have access to contraceptives. In Casey, it mushroomed into an all-purpose right to define the meaning of the universe. The circuit courts now insist that it includes the liberty to contract a physician to assist one's death. What began as a judicial effort to stretch the Constitution to make it better reflect the “traditions and conscience of the people” quickly became the opposite—it became a reason for constitutionally invaliding those very traditions as the ground for public policies and laws.
This line of jurisprudence, for a time, steered clear of the motivational analysis used in religion cases. To be sure, the issue of religious motivations would, from time to time, emerge in a concurring or dissenting opinion, when members of the Court would speculate that state governments have no authentic secular purpose for laws restricting sexual conduct.
These two lines of jurisprudence have begun to coalesce. Judge Reinhardt of the Ninth Circuit acknowledges that judicial acceptance of physician-assisted suicide would cause “great distress” to people “with strong moral or religious convictions.” The “or” is interesting, especially in the light of Justice Kennedy's virtual equation of religion with any ethics thought to “transcend human invention.” Reinhardt warns, “They are not free, however, to force their views, their religious convictions, or their philosophies on all the other members of a democratic society, and to compel those whose values differ with theirs to die painful, protracted, and agonizing deaths.” Laws prohibiting physician-assisted suicide, he concludes, do “injury” to some citizens for no other reason than “to satisfy the moral or religious precepts of a portion of the population.” On this view, legislation informed by religion or by traditional morality expresses a malicious desire by some citizens to apply power against other citizens.
In this light, we can begin to understand the Court's decision in the case of Colorado's Amendment 2. Although in Romer v. Evans Justice Kennedy does not venture an opinion about the religious nature of animus against homosexuals, his decision depends heavily upon the attribution of motives. “Laws of the kind now before us,” he writes, “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” “If the constitutional conception of ‘equal protection of the laws' means anything,” he continues, “it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” In other words, individual liberty is defined not merely by the kind of act or decision that one is free to engage, but by immunity from a certain kind of motive or purpose on the part of the legislator.
This analysis of animus has been linked to equal protection before. In Bray v. Alexandria Women's Clinic (1993), the Court examined whether anti-abortion demonstrators could be held liable—under the Ku Klux Klan act of 1871 (amended in 1985)—of conspiring to deprive women of the equal protection of the laws by depriving women seeking abortions of their right to interstate travel. The Bray case is unlike Romer in dealing with private citizens' animus against a class. The two can be seen together, however, insofar as the definition of discriminatory purpose holds for both public or private agents. Discriminatory purpose, as defined in Bray, implies that the agent selects or reaffirms a particular course of action in part “because of” and not merely “in spite of” its adverse effects upon an identifiable group.
In Bray, it was proposed that women qualify as precisely such an “identifiable group.” Justice O'Connor reasoned that the law must reach “conspiracies whose motivation is directly related to characteristics unique” to women. These characteristics are defined as “their ability to become pregnant and by their ability to terminate their pregnancies.” For his part, Justice Stevens wrote, “When such an animus defends itself as opposition to conduct that a given class engages in exclusively or predominantly, we can readily unmask it as the intent to discriminate against the class itself.”
The proposition that pro-life demonstrators are liable for such discrimination was defeated in Bray by a single vote—Justice White was still on the bench. For our purpose, however, it is important to note the strong analogy to what the Court now accuses Coloradans of doing in adopting Amendment 2. When Justice Kennedy asserts that there is no rational basis for the amendment, and that the “inevitable inference” is that the action is “born of animosity toward the class of persons affected,” he is saying, in judicial terms of art, that the amendment was adopted “because of” and not merely “in spite of” its adverse effects upon an identifiable group. It is true, of course, that women have a federal right to have abortions, while homosexuals do not (as yet) have a federal right to perform acts of sodomy. But the animus analysis reaches the same result, for a class is allegedly picked out and bullied in violation of the equal protection clause; whether the class is entitled to special judicial protection doesn't matter if the legislators or voters can be ascertained to have a suspect motive.
In sum, the political ability of the people to address legislatively common concerns in the terms of traditional morality must pass through a gauntlet of judge-made law in this new regime. If not disqualified on grounds of religion, legislation and other forms of public business may be disqualified on grounds of insufficiently “secular” motivation. And if not knocked down for that reason, it may be disqualified for failure to comport with what Gerard Bradley has called the “mega—right” of self-mystery definition posited in Casey (a right that now moves by analogy into physician—assisted suicide). And if not disqualified because of that, then it may be disqualified on grounds of motive to do injury, to discriminate, or to deny to persons equal protection of the laws.
These disqualifiers have been used alone and in concert to place public expressions of traditional morality outside the new political order. In fact, the Court may not need to invent a constitutionally protected right to die or to commit sodomy. Its current repertoire of nullification tests and devices are already sufficient to knock down prohibitory legislation on religious and equal protection grounds.
While it allows individuals to be self-governing, the federal judiciary's new constitutional order radically undercuts their ability to be self-governing in the political sense of the term. It excludes from the political process the objects of mutual deliberation that make political order desirable, indeed even possible. Desirable, because the culture-forming institutions of society cannot be sustained without common effort; there would be no need for politics were there not some important goods that require the deliberation, direction, and authority of the community. Possible, because once private individuals are allowed rights to use lethal force for vindicating justice in their own cause (as in abortion or euthanasia), it is difficult to see how even the most rudimentary foundations of the older political society—those that reserve the use of lethal force to public authority—still remain.
The new constitutional regime is a very bad regime. It withdraws protection from the weak and vulnerable, allowing the strong to define the status and rights of the weak; it privatizes matters which, in any legitimate political order, must be public in nature; it sets innumerable roadblocks to the rectification of the problem through mutual deliberation of citizens in legislative assemblies; and it has made what used to be its most loyal citizens—religious believers—enemies of the common good whenever their convictions touch upon public things. In 1994, the Court not only allowed the Racketeer Influenced and Corrupt Organizations (RICO) statutes to be applied against anti-abortion demonstrators, putting them in the same category with mobsters, but also allowed to stand a Florida law restricting the speech of pro-life, but not pro-choice, demonstrators in the vicinity of abortion clinics.
Unless the new constitutional order is profoundly reformed, citizens of rightly formed conscience will find themselves in a crisis. Insofar as private citizens have given tacit consent to the new regime, and thus allowed it to speak in their name, they face an unavoidable moral crisis. But the crisis falls even more immediately and heavily upon public officials, for the new regime orders them to do what they ought not to do, and not to do what they ought to do. They are ordered not to regard the unborn as having moral rights, and not to take those steps otherwise available to their offices to protect and remedy the injustices against that class of persons. Soon, the same will be true with respect to the dying and infirm. Moreover, legislative, executive, and judicial officers in the states are ordered by the Court to prevent the application of laws and policies of citizens on no other ground than the citizen's moral or religious motivations.
It is late in the day, and our options have dwindled. Either right-minded citizens will have to disobey orders or perhaps relinquish offices of public authority, or the new constitutional rulers will have to be challenged and reformed. The first option leads inevitably either to withdrawal from politics or to civil disobedience. Since there is still a window of opportunity with regard to the second option, it would seem to be the responsible course. In order to adopt it, we must take three steps.
First, the people through their elected officials must withdraw whatever tacit consent has been given to the new constitutional order. Because the new regime was not erected by any ordinary process of amendment, referendum, or ratification, in principle the people still may alter it through their elected representatives. Perhaps the U.S. Congress will be able to invoke its powers under section five of the Fourteenth Amendment; perhaps Congress can use its powers under Article III to alter the Court's appellate jurisdiction. How this might be done must urgently be studied by those having experience and expertise in the actual institutions of government.
Second, issues like abortion, euthanasia, and gay marriage should not be treated as isolated from the broader constitutional crisis. Those who would try to play within the game imposed by the Court, in the hope of incrementally improving the situation issue-by-issue, actually deepen rather than mitigate the authority of the new order. Indeed, it tends to confirm the suspicion that citizens who hold conservative opinions about morals and religion lurch from issue to issue, trying to use the public order merely to win a point, if not to punish those who believe otherwise. Particular issues therefore need to be advanced for the purpose of prompting a constitutional crisis; and prompting the constitutional crisis is the responsible thing to do.
Third, of all the features of the new regime, the one that must be tackled first is the Court's motivational analysis, which first emerged in connection with religion, but which now spreads to other matters of legislation informed by substantive moral purposes. In effect, the Court makes it impossible to have anything other than a procedural common good as a motive or purpose for political activity. There is a real possibility that the moral and religious motivations of some citizens will become not only actionable at public law, through constitutional suits challenging legislation informed by such motives, but also actionable at private law. Unless the elected representatives of the people can compel the Court to refrain from invalidating political activity merely on the basis of the citizens' moral or religious motivation, the task of reform is blocked. Should that continue, the option remaining to right reason is the one traditionally used against despotic rule: civil disobedience.
Russell Hittinger is the Warren Professor of Catholic Studies and Research Professor of Law at the University of Tulsa.