Our own Hadley Arkes, professor of jurisprudence at Amherst, responded with a spirited letter that, to its credit, the WSJ printed in full. Here it is, and it is worth reading in full:
In the May 11 editorial on "Rudy and the Right," the Journal editorial page, usually so savvy in its political sense, has backed itself into the reigning vice of the political class, and even the Republican wing of that class, on the matter of abortion. The Supreme Court articulated a new constitutional right to abortionand then assigned to itself a monopoly of the legislative power in shaping that right. Republican politicians rail against "activist judges," but then serenely settle into the notion that this matter of abortion is somehow exclusively the "business of the courts." It's rather astonishing that you should now absorb the same ruling premise; a premise that undoes the logic of the separation of powers. If there is a constitutional right, the legislative and executive branches must have the authority to vindicate that right, and in enforcing it, give it scale and proportion.
President Bush and other Republicans have been content to promise that they will appoint to the courts lawyers like John Roberts and Sam Alito. The unspoken promise is that these judges, one day, will overrule Roe v. Wade. And on the day that happens, what will those Republican politicians do? They have now talked themselves out of the notion that the political branches have any responsibility here. My guess is that most of the Republicans don't have the slightest sense of what they would do on the day Roe ends. And yet, it doesn't follow, as you suggest, that the matter simply returns to the states, as though the president and Congress had little reason to deal with this matter.
Consider just a few of the things that fall to the president and Congress: There is the obvious matter of the practice of abortion in the diplomatic and military outposts abroad, and in the District of Columbia. There is the question of whether the National Institutes of Health should make use of tissues drawn from fetuses in elective, not spontaneous, abortions. We have a dramatic case right now, in New Jersey, of a hospital that has arguably violated the Born-Alive Infants' Protection Act, the act that casts the protection of the law on children who survive abortions. But that case is languishing in the Justice Department, with a White House paying no attention. Would a President Giuliani take more interest in faithfully executing the laws we have passed? Using the old Bob Jones case, another administration may seek to withdraw tax exemptions from hospitals and clinics that violate the Born-Alive Act. That would be a momentous move, emanating from the center of our politicsas would be the move to withdraw all federal funding from hospitals and clinics that house the partial-birth abortion. We are not likely to see criminal cases brought under the act, recently sustained, that forbids that grisly procedure. But the threat to remove federal funds could move us to the endgame on the performance of many kinds of abortions in hospitals and clinics.
Those are some of the things a president would be in a position to direct, quite modestly, without much exertion. You have taken the line for years that this matter of abortion cannot be the central issue in our politics. I'd simply offer this plea for a certain exercise of imagination: If some of us look out on the world, informed by the textbooks on embryology and obstetric gynecology, we think we have firm reason to know that these are nothing less than human lives that are destroyed in abortions. With a minor flexing of moral reasoning, we think that the justifications needed to take the lives of these small humans must be as compelling as the justifications that are needed to take other human lives. Anyone who looks out on the landscape with that lens sees 1.3 million lives taken in this country each year without the need to render a justification. Therefore, understanding that, where would you place this matter in the overall rank of our public business? Would it be just behind the question of interest rates or the level of taxes? Would you really be surprised that those of us who see things in this way cannot quite put this matter of the "life issues" at the periphery of our politics? Where then is the rigidity or the touch of fanaticismon the part of those who see what is there, and seek moderate steps to address it, or on the part of those who somehow cannot acknowledge that real human beings are killed in these surgeries?
Professor of Jurisprudence
I asked a friend whether she had watched the PBS series on "The Secret Files of the Inquisition." She allowed that she had looked at the first episode. "It's the usual recycling of the juvenile pap about 'The Black Legend,'" she said. I surfed onto five minutes of last night's episode, and she is right. There was a Franciscan friar preaching to an apparently clandestine gathering of village folk and the voice-over declaimed: "He spoke to them in their own language rather than the Church-approved Latin, which was considered utter blasphemy." That would have come as a surprise to St. Francis, the Order of Preachers (Dominicans), and the thousands of others engaged in preaching missions throughout Europe.
The little I watched also recycled the story that brave scientists defied the Church by secretly engaging in anatomical experiments on human cadavers. As it happens, Sherwin B. Nuland of Yale Medical School addressed this subject in the May 7 issue of the New Republic (subscription required). He is reviewing a book by Katharine Park on the origins of human dissection and he writes:
A long historiographic tradition, dating back to at least the middle of the nineteenth century, presents religion and science as diametrically opposed cultural enterprises and the Church as deeply hostile to dissection. This misconception is still widespread. Generations of Italian tour guides, not to mention playwrights, journalists, and historical novelists, have waxed eloquent over the supposed moral and intellectual courage of such late fifteenth- and sixteenth-century heroes as Leonardo da Vinci, Michelangelo, and Andreas Vesalius, author of On the Fabric of the Human Body, published in 1543, whose famous title page celebrated the study of anatomy based on dissection rather than on ancient texts. These men, the story goes, defied religious superstition and braved persecution and censure in the service of art or science, pursuing their intellectual passion in dark cellars and back rooms with trapdoors in the floor for the quick disposal of corpses when the police (or the Inquisition, or whoever) arrived.
Like the famous story associated with Christopher Columbus, whose courageous voyage of 1492 purportedly proved to a doubting public that the earth was round, this story has been debunked repeatedly by medievalists to no avail. The power of such fictions to weather frequent and detailed disproof testifies to the important cultural work they perform by supplying foundation stories that confirm deep-seated Western intuitions about the scientific origins of modernityintuitions that continue to inform the writing of even specialists in the field.
Contra the PBS series, the real "secret" of the Inquisition, including the Spanish Inquisition, is that it was a misguided effort by the Church, and the Dominicans in particular, to provide a measure of judicial probity in the state-ordered punishment of what today we call dissidents. Of course, the proceedings and state-imposed punishments grossly violated today's standards of justice. It is also true that the Inquisition absolved thousands of the accused, and over the three centuries of its full operation fewer people were killed than were killed on a slow afternoon at Auschwitz or in the Gulag Archipelago, not to mention the millions starved or slaughtered by the Great Helmsman in China. The story of anti-Christian tyranny is the real Black Legend that is no legend.
The book to read is Henry Kamen's The Spanish Inquisition. The lesson to be drawn is the ambiguity and risk of tragedy in cooperating with temporal power in the hope of tempering great injustice. In attempting to work with Caesar, the Church was drawn into the great wrongs perpetrated by Caesar. It is a lesson that is still pertinent, and will be until Our Lord returns in glory. (For multiple discussions of debates about the Inquisition, check out "Inquisition" on the search engine for First Things magazine.)
Finally, this item from "The Public Square" in the June-July issue of First Things:
Since the publication of David Cesarani's biography Arthur Koestler: The Homeless Mind, it takes a measure of courage to write in praise of the man. Cesarani revealed, and few, if any, have attempted to dispute, that Koestler was a brutal abuser of women, and maybe a rapist to boot. Yet there is no doubting that his Darkness at Noon was a work of genius, and one of the most influential critiques of the communist horror ever written, and his edited work, The God That Failed, opened the eyes of many to the gargantuan evil of the evil empire. Theodore Dalrymple writes in City Journal that Koestler should not be forgotten or dismissed, and focuses our attention on some of his novels. There is this, for instance, in The Age of Longing. He is describing the plight of Hydie, a lapsed Catholic. I expect you know someone who fits the description:
Oh, if only she could go back to the infinite comfort of father confessors and mother superiors, of a well-ordered hierarchy which promised punishment and reward, and furnished the world with justice and meaning. If only she could go back! But she was under the curse of reason, which rejected whatever might quench her thirst, without abolishing the urge; which rejected the answer without abolishing the question. For the place of God had become vacant, and there was a draught blowing through the world as in an empty flat before the new tenants have arrived.
And there is this self-description in the first volume of Koestler's autobiography, Arrow in the Blue: "The youth of sixteen that I was, with the plastered-down hair, and the fatuous smirk, at once arrogant and sheepish, was emotionally seasick: greedy for pleasure, haunted by guilt, torn between feelings of inferiority and superiority, between the need for contemplative solitude and the frustrated urge for gregariousness." I expect some of us, thinking back to when we were sixteen, may experience a sharp pain of self-recognition.