During the hearings in Dobbs v. Jackson last week, concerning the challenge to Mississippi’s ban on abortions after fifteen weeks of pregnancy, Justice Sotomayor commented that besides abandoning stare decisis, striking down Roe v. Wade would be tantamount to abandoning the Court’s neutrality.  I would hold that the Court has already done that in Casey when Justice Kennedy decided to expound on the “heart of liberty.”  That said, is a sane jurisprudence possible in liberal regime?  If liberty is thus, how can a society, let alone law, actually arise and endure?



Thanks.  Since you’re asking several related questions, let’s sort them out.

Your first question is “Did the ‘mystery passage’ in Planned Parent v. Casey mark the Court’s abandonment of neutrality?”  I would say no, because the Court never was and never can be neutral; neutrality is not a coherent idea.  You may mean that in Casey the Court took sides on abortion, but it did that in Roe too.  Someone might argue that Roe didn’t really take sides, because it didn’t recommend abortion, but only permitted the choice to abort.  However, it was pro-choice only in the sense that Pontius Pilate was pro-choice about crucifying Jesus, that Stephen A. Douglas was pro-choice about slavery, or that a polygamous marriage law is pro-choice about whether to have more than one wife.  Under the pretense of not taking sides, Pilate sided with those who wanted permission to commit judicial murder, Douglas sided with those who wanted the territories to be able to have slaves, and polygamous marriage law sides with those who want men to be able to have more than one wife.

Don’t get me wrong:  I don’t mean one should take sides in the sense that wokeists take sides.  Wokeism is purely consequentialist.  It wants certain things to happen, and defines justice as getting its way.  At least wokeists don’t maintain the pretense of neutrality!  But they are non-neutral in the wrong way.  They believe in taking sides with the person with the right skin color, provided that he also has the right revolutionary attitude.  No, justice means taking sides for justice, and this is not an empty idea, because justice is not a nothing but a something.  To take a leaf from Justinian’s Institutes, justice means living honorably, injuring no one, and giving to each person what is due to him – and we should always take sides for that.  One might object that in order to implement the idea we have to take sides on still more issues, because we have to judge what it means to live honorably, what counts as injury, and what, in fact, is due to each person.  Exactly.  That is my point.  There is no such thing as neutrality; one cannot judge by refusing to make a judgment.  One can only pretend to do so.

For an analogy, think of baseball.  Some people think the rules of baseball are neutral because they don’t tilt in favor of one team or another.  But of course, in a way, they do tilt.  They are just, but not neutral, for they give the advantage to those teams which demonstrate the greatest skill in the playing of the game.  True, the rules don’t tilt toward irrelevancies, siding with the team which has the brightest uniforms or which pays the biggest bribes to the umpire.  But the reason isn’t that they don’t tilt – it is that instead, they tilt toward skill.  That is what baseball is about, as society is properly about justice.

Your second question, I think, is “What sort of concept of liberty does the ‘mystery passage’ express?”  Again we run into an incoherency.  The statement that “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” has infinite breadth and zero depth.  When Justice Kennedy says “beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State,” he blurs together two different questions.  The reasoning seems to be that because the state may not tell me what to believe, therefore it may not tell me what to do.  But that is absurd.  Suppose we really did shape our law on the premise that I have an absolute right to act upon my beliefs about existence, meaning, the universe, and human life.  Then the circle of devastation takes in a lot more than unborn babies.  If I should happen to believe that my next door neighbor shouldn’t exist -- or that his existence has no meaning -- or that he doesn’t belong in the universe as I conceive it -- or that he doesn’t really have a life – then, apparently, I may kill him.  In fact, I may do anything I please.

It is hard to believe that Justice Kennedy actually intended to express a universal right to do anything whatsoever – yet that is what his premises implied.  His way out of the conundrum was not logical, but pragmatic, for any monarch who says “You may do anything” must also say “but I get to say what ‘anything’ includes.”  The judges will decide.  Obey.

Your final question is “Is a sane jurisprudence possible in a liberal regime?”  The answer depends on what you mean by “liberal.”

●  If liberalism means the idea that I may do anything I please, then obviously no.

●  If liberalism means neutrality, then still no.

●  If liberalism means wokeism, into which liberalism has degenerated (since neutrality was never more than a lying mask), then we are still further into no-land.

●  But on the other hand, if liberalism means believing in a political order devoted to the rule of law and the common good, with recognition of natural law, tight constitutional limits on government powers, and generous protection for natural rights -- then yes.  In such a regime a sane jurisprudence would certainly be possible.  Although sometimes today’s liberals fallaciously try to read their own very different views back into the American founding period, that is the sort of political order the American founders actually had in mind – as anyone who reads them may verify!


Reader’s follow-up:

Thank you for your response.  My own reading of history seems to indicate that while the Founders understood the natural law, they failed to ensure that the system of government would be able to resist degenerating alongside the population who abandoned it.


Further reply:

Well, yes -- but can any system of government resist degeneration if the people become corrupt?  The Founding generation was convinced that a republic can function only with a certain level of virtue among both the people and their rulers.  One may be able to get a little better government than one deserves -- but not a great deal better.  I think this is correct.

Such devices as checks and balances, or voting for virtuous candidates, can help, those thinkers thought, but they aren’t a substitute for virtue.  They are only a sort of hamburger helper, making a little bit of virtue go a little further than it otherwise would.  For politicians who are gravely deficient in virtue won’t limit themselves to Constitutional methods of political competition, such as checks and balances -- to win, they will bring down the system.  And citizens who are themselves defective in virtue won’t vote for the most virtuous candidates –- from sheer envy, they may even vote for the least.  And before it comes to that point, they will vote for whoever offers them the biggest bribes and subsidies.  (Who ever heard of anyone voting like that?)

The Founding generation also believed that bad laws and bad moral example on the part of rulers can make people worse.  Whether they thought good laws and good moral example on the part of rulers can make people better is not so clear.  With Thomas Aquinas, I think good laws and example can do that – though of course their power to do so is quite limited, and can’t undo the effects of the Fall.  Besides, the chief springs of virtue are not laws and rulers, but the family and the Church, the former a natural, the latter a supernatural institution.

In common with the historical tradition of republican thought, most of the thinkers of the Founding generation also believed that republics have a life cycle.  If they are virtuous at the beginning, they prosper.  If they prosper, however, then the people grow rich -- then they grow too rich -- then they grow indolent and corrupt -- and then the republic collapses.  The implementation of what some of these thinkers called new discoveries in the science of politics wouldn’t prevent things from ever going downhill, but only give the republic a significantly longer shelf life than it would otherwise enjoy.  The “new order for the ages” wouldn’t last forever, but only for a long time, and hopefully, one day, become a historical model for future times.

I’ve enjoyed this exchange.  Thanks for allowing me to post it.