Reflections on The Constitution, The Supreme Court and Justice

Much of the political debate going around today is based on the idea that because the Constitution permits a thing, there can be no complaint against it.  Setting aside for the moment specific issues of dispute in America, the theory ignores one crucial question:

Can the Constitution (or an interpretation of it) err or be unjust?

I believe the answer can clearly be yes to both.  I recall in High School civics class that the Constitution can be amended if a problem is perceived.  Certainly before 1865, the Constitution was flawed in that it denied citizenship to certain parts of the population simply on the basis of the color of their skin.

This shows the problem when certain politicians rally around the "Constitutional" Right of the woman to choose [abortion].  The right may be decreed constitutional by the Supreme Court, but neither it, nor the right to privacy it is based on can be found in the Constitution.

If the interpreters of the Constitution are unjust, it follows that the interpretations they give can be unjust.  This kind of rhetoric goes on frequently.  Today, there is a dispute over whether Obamacare is constitutional.  Nine years ago, there was a dispute over whether the Supreme Court "unjustly installed" George W. Bush as president.

What this demonstrates is [Regardless of whether the charges are true or not], we do have interpreters of the US Constitution whose decisions are binding and not able to be appealed.  If they are unjust in their decisions, there is very little we can do to stop them.

This isn't mere theory.  The Supreme Court has made some historically bad decisions and have been forced to contradict previous precedent, such as the Dred Scott case and Plessy vs. Ferguson.

I believe this shows that the Supreme Court can give an interpretation which they call Constitutional, but is also unjust.

This demonstrates that to invoke the Constitutionality of a law is no evidence as to whether or not it is just.

On Justice

However, justice in law is what separates the good forms of government from the immoral forms of government, and here the person who argues against any moral absolutes have hamstrung themselves when opposing injustice.

Justice can be defined as giving to another their due, and behaving in right conduct with other people.  All human persons are considered to have human rights simply on the basis of their being human.  Each person is entitled to the due of not being treated in a subhuman condition.  In America we have in the Bill of Rights which assumes all people have certain rights.

The Catholic Church speaks of justice between men as follows:

1929 Social justice can be obtained only in respecting the transcendent dignity of man. The person represents the ultimate end of society, which is ordered to him:

What is at stake is the dignity of the human person, whose defense and promotion have been entrusted to us by the Creator, and to whom the men and women at every moment of history are strictly and responsibly in debt.³⁵

1930 Respect for the human person entails respect for the rights that flow from his dignity as a creature. These rights are prior to society and must be recognized by it. They are the basis of the moral legitimacy of every authority: by flouting them, or refusing to recognize them in its positive legislation, a society undermines its own moral legitimacy.³⁶ If it does not respect them, authority can rely only on force or violence to obtain obedience from its subjects. It is the Church's role to remind men of good will of these rights and to distinguish them from unwarranted or false claims.

In other words, because a person is human they possess certain rights independent of the government, and no government can take them away without being unjust.  Moreover, any government which denies these rights lacks moral legitimacy to their rule, and can only use force to make their decrees followed.

The Difference Between the Constitution and Justice

Whether or not the Constitution, or its interpretation, can be considered as possessing moral authority depends on whether it respects the human person or not.  If it does not respect the human person, the law may be binding by force, but it is not a law which we are morally obligated to follow, and in fact are morally obligated to oppose.

The Abortion Example

In 1973, the Supreme Court decreed abortion legal, and since then we have been told that it is based in the Constitutional Right to Privacy, which is not in the Constitution, and was not described as a right until 1965, in Griswold v. Connecticut.  This invokes the Ninth Amendment, which is a circular argument which one can dismantle with a reductio ad absurdum.  [The Constitution doesn't say I can't murder anyone either, therefore I have a constitutional right to do so].

Now, one can argue that the right to privacy is a basic right which precedes the Constitution.  However, this overlooks a crucial consideration: Are the unborn human persons?  If so, then their right to life precedes the Constitutional Supreme Court Right to abortion.

The Supreme Court decision, Roe v. Wade entirely ignores this consideration, when it declares:

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

This is entirely a circular argument, which assumes what it needs to prove: That a woman does in fact have the right to terminate a pregnancy.  It calls the unborn a potential life, but this is to be proven, not assumed to be true.

Indeed, without proving the fact that the fetus is not a person, the Supreme Court appears to have violated the 14th amendment:

1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Emphasis added)

If the assumption that the fetus is merely a potential human being is false, then the Supreme Court has created a situation where the unborn are denied the equal protection under the law.

The Roe v. Wade decision relies on an irrelevant appeal to past decisions of legal precedent, which selectively chooses certain examples and ignores others.  The reason it is an irrelevant appeal is that many of the precedents they cite are based on the scientifically erroneous ideas of quickening of the fetus, ignoring later medical advances.  From this we see the argument that since the actual forbidding of abortion in America was based on the fact that outright forbidding of abortion did not exist until the 19th century in America.

However, this is an argument from silence.  "We don't know of laws forbidding abortion until the 19th century.  Therefore it was permissible before then."  That laws were made in the 19th century does not prove that abortion was acceptable before.  Positive evidence that the nation, prior to the 19th century, sanctioned abortion is necessary.

Even from this, it does not follow that abortion is right.  To judge abortion as being morally neutral, it has to be established that the fetus is not alive.  If the fetus is a human person, it contains human rights which precede the laws of the United States.

The Quadrilemma of abortion

A right to abortion requires us to create some categories.  First, whether or not the fetus is a human person.  It either is or it is not.  Second, we need to determine whether we know this to be true.  This leaves us with four categories:

1. The unborn is a human person and we know it.
2. The unborn is not a human person and we know it
3. The unborn is a human person and we do not know it
4. The unborn is not a human person and we do not know it

In these four cases, we have three levels of guilt or innocence.

1. In the case of us knowing the unborn is a human person, government sanctioned abortion is the murder of a human person.
2. In the case of us knowing the unborn is not a human person, there is no problem with abortion.
3. In not knowing whether or not the unborn is a human person (cases 3 and 4), abortion becomes a reckless, grossly negligent act.

We can demonstrate these cases with another scenario.  You and a friend are deer hunting, and get separated.  You hear motion in the bush.  There are four possibilities:

1. The movement is caused by your friend and you know it
2. The movement is caused by a deer and you know it
3. The movement is caused by your friend and you do not know it
4. The movement is caused by a deer and you do not know it

When is it legitimate to shoot?  Only in case two.  Why?

1. In case 1, shooting when you know it is a person is willed murder
2. In case 2, shooting when you verified you can shoot safely is morally acceptable
3. In case 3, you are guilty of gross negligence and manslaughter at the very least
4. In case 4, you are still guilty of gross negligence.

Yet, instead of proving when the human person begins, the Supreme Court acts with gross negligence.  it "fires into the bush" without verifying the target, when it argues:

A. The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment.

Whether or not past law has made a statement on whether or not the fetus is a person has no bearing on whether the fetus IS a human person.  To assume that the fetus is not a human person based on interpretations of the 14th Amendment is an evasion of the issue, when it says:

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

This is an appeal to irrelevant authority fallacy.  Does the lack of laws that declare the fetus a person make it so?

Dangerous Precedents

Certain nations, including the United States, have at certain times determined that certain human beings were not persons on the basis of their ethnicity.  The most extreme example is that of Nazi Germany with its claiming that Jews and Slavs were subhumans which lacked human rights.  We are of course horrified by the actions the Germans justified by a legal claim.  Through a legal ruling, human persons were terribly mistreated.

Now of course Nazi Germany was an extreme example.  However, the United States once considered the blacks to be less than fully human, and such a view was upheld by the Supreme Court.  Under the logic of Roe v. Wade past precedent could be used to deny any African American was a "human person."  After all, before 1865, there were no laws which held that view.  It instead took a war and some amendments to overturn the bad logic of the Supreme Court.

Constitutional Is Not the Same as Just: QED

We are back to the beginning, and the conclusion is clear.  Just because the Supreme Court or the Constitution says a thing is constitutional has no bearing on whether a thing is just.  So despite what the Supreme Court says, it still must be assessed as to whether it is just or not.  If it is not just, it must be opposed.

Yet, the whole problem is a thing is not defended as just, it is merely called "Constitutional" as if that was all the sanction which was needed.

Unfortunately, in America, there is little recourse to an unjust ruling by the Supreme Court.  It is the state legislatures which can vote for a proposed amendment (which first requires 2/3 of both House and Senate to vote in favor of a proposed amendment), not the people (unless the states call ratifying conventions… which happened once).

So where does this leave the Christian who feels he must oppose an unjust ruling?

An Unjust Law is not a Law

One may want to ask: "How can you advocate breaking some laws and obeying others?" The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that "an unjust law is no law at all"

Now, what is the difference between the two? How does one determine whether a law is just or unjust? A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.

—Martin Luther King Jr.  Letter from a Birmingham Jail

This is ultimately what must put the Christian unwillingly in conflict with the government of the United States at times.  When the government decrees that it is permissible to degrade the human person, we must speak out against it, not bowing the knee to the unjust law… even if it comes from the Supreme Court or the Constitution itself.

However, there is a limit to what we can do.  If it comes to a choice between doing evil and suffering evil, we must choose the suffering of evil, as we may not choose an evil means to achieve the desired end.  Nor can we participate with the evil law.

So, in short, our opposition to injustice must be done in keeping with making a Christian witness.