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.
Russell Hittinger teaches in the School of Philosophy at the Catholic University of America.
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.
J. Budziszewski teaches in the Department of Government at the University of Texas at Austin.
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 “fre on” (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.
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.”
Peter L. Berger is author, most recently, of A Far Glory: The Quest for Faith in an Age of Credulity.