Family Research Council
WT00G3 The Genteel Treasons of the Political Class 08/30/2000 06/04/2004 Dr. Hadley Arkes

I would ask us to absorb ourselves for a moment in the cadences of Lincoln for the sake of reminding ourselves of the furnishings of mind of Lincoln and the Founders, and recalling the understanding that was revealed more fully as Lincoln unfolded his argument. I draw here on Lincoln's famous speech of June 1857, in the aftermath of the Dred Scott decision. Lincoln recalled that, at the founding, there were five states in which free black people were given the vote. But now, by the 1850s, two of those five had withdrawn the vote. At that time, when the government was beginning, it was thought that masters had the authority, at their own will, to free their own slaves. But now there were so many restraints cast up by the legislatures as to amount to a prohibition on emancipating one's own slaves. At the beginning, it was unquestioned that the legislatures would have the power to abolish slavery in the respective States, but it seemed to be the fashion of late to have the State constitutions withhold that power from the legislatures. By common consent, "the spread of the black man's bondage" was prohibited in new countries or territories, but now Congress would not continue the prohibition, and the Supreme Court said that it could not do that even if it would. "The Declaration of Independence," said Lincoln, "was once revered by all, thought to include all; but now, for the sake of making the bondage of the Negro even more universal and eternal, the Declaration is assailed, and sneered at, and construed, and hawked at, and torn, till, if its framers could rise from their graves, they could not at all recognize it." As for the black man, then--to pick up Lincoln now even more exactly:

All the powers of earth seem rapidly combining against him. . . . One after another, they have closed the heavy iron doors upon him, and they have him, as it were, bolted in with a lock of a hundred keys, which can never be unlocked without the concurrence of every key; the keys in the hands of a hundred different men, and they scattered to a hundred different and distant places, and they stand musing as to what invention, in all the dominions of mind and matter, they can produce to make the impossibility of his escape more complete than it is. . . . It is grossly incorrect to say or assume, that the public estimate of the Negro is more favorable now than it was at the origin of the government.[1]

Whatever else we can say about this passage, it should be clear that it was not written by an Hegelian or a Marxist. The understanding of politics contained here was more of a classic understanding, more at home among the ancients. There was no glib assumption that history was moving on, ever upward, as history unfolded according to a scheme of scientific laws. The understanding rather was that corruption was an immanent possibility--that history may move backward; that individuals may be corrupted, and that institutions, composed of individuals may be corrupted in the same measure. Hence the notion of the crisis of the "house divided": that a regime republic in its form could be corrupted in such a way that its moral substance would be removed. A regime that could enslave black people could begin restricting the franchise of whites, until the authoritarian features of the regime become more pronounced and the republican features begin to recede.

That is the question I want to put before you today, to urge us to take seriously again the kind of argument Lincoln was raising--and to wonder why some of our most educated people have such a hard time taking it seriously. For it was the question that several of us were raising nearly four years ago in the notorious symposium in the journal, First Things, on judicial usurpation or, "The End of Democracy?" Our Symposium was concerned with the extraordinary rule of the federal judges, as they have moved, virtually on their own, to change the very matrix of the laws in America--changing the laws that deal with the beginning, and the ending of human life; on sexuality and the meaning of marriage. With remarkable nonchalance, the judges flitted past the dreaded N-word: nature. The question was whether there is a ground in nature that stands behind the laws on marriage, or the understanding of the human person. Or would it simply be open to the positive law, the law that is posited or enacted by people in power, to proclaim any definition one might choose for marriage or the human person. Lincoln said that the dispute on slavery came down to the question of "whether a negro is not or is a man. If he is not a man, why in that case, he who is a man may, as a matter of self-government, do just as he pleases with him."[2] But would it be open for people to decide, on their own, that a black man was not really a man? Could we be free simply to shift the labels and say, "That is not a man, that is a nigger"--and with the shift of labels, to remove black people from the class of rights-bearing beings?

Or in the same way, could we say: "That is not a human being--that is merely a fetus." Or to take a further step: We will leave it to you to tell us whether you think that is a human being, or something less than a human being, as it suits your own interests. We will leave it to you, that is, to reckon whether your interest lies in preserving the life of that being or destroying it. I would argue, that any scheme that grants, to any of us, that kind of right, is not a scheme in which any of us can be the bearer of rights.

What some of us argued in the symposium in First Things, was that the federal courts were moving precisely to this understanding--that there were no standards outside the positive law; standards that could be used in measuring the rightness or justice of the positive law. And as the judges installed that understanding, they were putting in place premises that were at odds with the premises of the American regime--and indeed the premises of jurisprudence itself. But here the judges reflected the understandings that had become dominant in the circles from which the judges had sprung--namely, from the most prestigious schools of law, and the most established colleges and universities. These were the people who represented the political class; the people who were influential and dominant, in the media, the academy, and the law. To use an old expression, they formed the regime. And yet, these people were gradually talking themselves out of the very premises of the American regime. We might say, then, quite literally, that they were drifting into the most genteel of treasons.


If you would indulge me, I would take the problem from yet another angle. I would take us back for a moment to the story of General Meade just after the Battle of Gettysburg, when Meade had not grasped the depth of the victory won by the forces of the Union under his command. He was still, in the aftermath of that battle, shaken by the severity of the casualties. He was given, quite understandably, to the task of assembling the men who had survived, and taking stock of his army in its reassembled state. But President Lincoln did grasp the depth of the victory--and its potential significance--if the moment were not lost. Lincoln understood, as not all of his generals did, that the tactical objective was not to "take Richmond" but to destroy Lee's army, the military force that alone sustained the "pretended government" known as the Confederate States of America. With proper delicacy, combined with the sense of the moment, Lincoln sought to jar Meade from the haze that engulfed him. Lee and his forces could not yet cross the Potomac River while the tide was high, and Lincoln urged Meade to strike at Lee before the general could get back across the Potomac into Virginia.

Meade, however, held back, and in holding back, lost the moment. He telegraphed to Lincoln and remarked that they could take consolation at least in this: that the army had been successful in "driving the invader from our soil." His dispatch could not have, though, for the president, a consoling effect. Lincoln remarked to his secretaries, John Nicolay and John Hay, that it was just like McClellan all over again--the same spirit that led the general to proclaim a great victory because "Pennsylvania and Maryland were safe." Lincoln wondered how he could convey the point to his officers: "Will our generals never get that idea out of their heads? The whole country is our soil."[3]

It must be the most sobering thing when one's own people begin to absorb the premises of the other side. I would suggest that, in the same, subtle way, many members of the political class have come to talk themselves out of the moral premises of the American regime--and their own rights. They have done it, at the same time, with the affectation, and the sublime surety, that they have been enlarging their rights, with new claims of privacy and personal autonomy.

The case of Lincoln and his times may give us, again, the clearest analogies that make the problem quite plausible in our own day. For Lincoln, the problem was dramatically personified in the example of Senator Pettit of Indiana. Pettit had shown his deep contempt for the principles of the Declaration of Independence by remarking, famously, that the self-evident truth of the Declaration--that "all men are created equal"--was really a "self-evident lie." As Lincoln understood, that "proposition," as he called it, in the Declaration, was the father of all principles among us. You may recall Lincoln's remark at Gettysburg that the republic had begun "four score and seven years ago." And of course, if we count back 87 years from 1863, we don't end up in 1787, with the Constitution; we end up in 1776, with the Declaration of Independence. The nation did not begin with the Constitution; it began before the Constitution, with the articulation of that first principle that defined the character of the American regime. The character of the country was established by our dedication to that proposition on which the nation was founded, "all men are created equal."

And by that, of course, the Founders did not mean, as Lincoln said, that all men or women were equally virtuous or beautiful, but that human beings, sharing in a community of nature, did not deserve to be ruled in the way that human beings may rule dogs and horses. Even in this age of animal liberation, no one thinks of signing labor contracts with horses or cows, or seeking the informed consent of our household pets before we authorize surgery upon them. But we continue to think that beings who can give and understand reasons deserved to be ruled through the rendering of reasons, in a regime that elicits their consent.

We have a regime of free elections and constitutional restraints only because it is the regime that is built upon that premise that "all men are created equal." And yet, here we had Senator Pettit, an officer of high standing in the American republic, who expressed his contempt for the very premises on which the American republic was founded. Evidently, there were portions of the American political class that were no longer committed to those premises. They would vote to sustain a regimen of slavery, acquiesce in every alteration of the law, every abridgement of constitutional freedom, which was necessary to preserve those arrangements of slavery. In other words, men who filled the office of senator might nevertheless be acting on premises that were incompatible, at the root, with the premises that underlay their offices. For the office of senator held its meaning or coherence only as it was part of a republic, or a government based on the consent of the governed. But here was Senator Pettit expressing his contempt for the premise that stands behind a government by consent. His example was quite striking, and yet people seem to neglect its deep import: An officer of high standing within the government can reject the moral premises on which his own authority rests.

Now if that could be done by legislators, by a senator, why is it so unthinkable that it could be done by an executive--or by a justice of the Supreme Court, or even a majority of the Supreme Court? Why is it not possible that judges in the federal courts can come to articulate principles that are utterly at odds with the moral premises that underlie the judicial branch, and the rule of law? That would be a case, as I say, of the most stylish treason, of people in high office who had become disaffected from the deepest premises of their own regime.

Stephen Douglas had famously declared that he "didn't care" whether slavery was voted up or down in the territories of the United States, so long as the decision was made in a democratic way, by the vote of a majority. Douglas, we might say, was the first "pro-choice" candidate; he professed to be utterly neutral, entirely without judgment on the moral question; he simply wanted to preserve freedom of choice for the people in the territories. With that move, said Lincoln, Douglas was "debauching" the public mind. He was teaching us that we could talk about Negroes, or about one man owning another man, as we talked about cranberries or oysters, or morally indifferent things. As Harry Jaffa put it, construing Lincoln, a free people could not talk themselves into an indifference toward ruling other men without their consent--they could not talk themselves into that notion and yet remain a free people.[4]

For as people made themselves more suggestible to the idea of slavery, as they became more and more willing to excuse and defend slavery for black people, they were laying the groundwork for their own enslavement. Or, they were talking themselves out of the importance of democratic government for white people as well. Nothing caught the core of this issue more compellingly than that fragment Lincoln had written for himself in which he imagined himself engaged in a conversation with the owner of black slaves, and he was putting the question of how one could justify the enslavement of the black man:

You say A is white, and B is black. It is color, then: the lighter having the right to en slave the darker? Take care. By this rule, you are to be slave to the first man you meet, with a fairer skin than your own.

You do not mean color exactly?--You mean the whites are intellectually the superiors of the blacks, and therefore have the right to enslave them? Take care again. By this rule, you are to be slave to the first man you meet, with an intellect superior to your own.

But, say you, it is a question of interest; and, if you can make it your interest, you have the right to enslave another. Very well. And if he can make it his interest, he has the right to enslave you.[5]

I would point out that, nowhere in this chain of reasoning, is there an appeal to faith or revelation. Aquinas once observed that the divine law we know through revelation, but the "natural law" we know through the reasoning that is accessible to human beings as human beings. Lincoln's argument was a model of principled reasoning; it could be understood across the divisions of religion or race or class--it could be understood by Catholics or Baptists; by geologists or carpenters or poker players. In my experience, no one, hearing the argument, has failed to grasp its import: There was nothing one could cite to disqualify the black man as a human being, and justify the enslavement of blacks, which would not apply to many whites as well. In this understanding, the case for slavery could not be confined to black people. As Harry Jaffa suggested then, the willingness of certain Southerners to affirm the inferiority of black people, as the condition that justifies their enslavement, was sufficient to prove that these Southerners were themselves unfit for self-government. Jaffa urged us to consider that the people who had absorbed this understanding would have ceased being a democratic people, even when they were voting and mimicking the acts that described citizens in a republic. And so, as Jaffa remarked, "if the majority favors despotism, it is no longer a free people, whether the form of the government has already changed or not."[6]

I used to think that Jaffa, in these passages, was waxing metaphoric. But over the past few years, the recognition has settled on me that Jaffa and Lincoln should be taken here quite literally. I would make my own approach to it in this way: People may go into voting booths and cast votes, and for all we can see, they are acting in the familiar modes of citizens in a republic, engaged in the act of voting, or manifesting a government by consent. But we know of course that we cannot always give a moral account, or even an accurate descriptive account, of what people are doing when we merely describe their outward behavior. Smith is trying to open the window to the house on the second floor: Is he trying to break in, or is he on a commission to clean the windows? Smith goes to the garage of his next door neighbor and takes the hose from the wall. But from that outward act alone we cannot say that he is engaging in a theft. He might have had permission to use the hose, or he might not have had permission, but there is a fire in his house and he is seeking to borrow the hose for a moment for a justified end. Before we can give an account of the act, or its moral significance, we need to know something about the purposes animating the actor, or his own understanding of the principles that inform his action.

Now, if one would follow me a bit further, I think we would find the telling analogy here by imagining an election, in Germany, in 1932. There are some good Germans concerned about the Versailles Treaty and drawn to Hitler and his program for dealing with the Depression. They know that he has a severe program, shall we say, in dealing with the Jews. They know, too, that there is a risk that Hitler and his Nazi party may remove this government by consent and replace it with a dictatorship of some kind. This German voter may doubt that Hitler is fully serious in following through on his threats about the Jews, or that he would really act upon his expressions of contempt for the Weimar republic. But in his willingness to vote for Hitler, he marks his willingness to take a chance on these things. In that respect, he would separate himself from the people who think that the avoidance of genocide, and the preservation of constitutional government, are things so important that they cannot be placed in the basket of things "we are willing to take a chance upon." On the other hand, this voter may indeed think that Hitler means it about the Jews, and the voter is quite willing, for his own part, to vote now to dispossess the Jews of their property and redistribute their businesses to deserving Aryans. The question then is: When this man casts a vote, is he affirming, with that vote, the principle of government by consent?

Apparently not, for he is not really concerned to preserve a regime of elections as an absolutely necessary condition of politics. Nor is he concerned to protect the right of his neighbors to enjoy an equal claim to that government by consent, a government that would protect their rights and their lives. The voter is acting to assert his interests, or his passions, quite apart from the form of the regime. If he is counting on a majority of Germans to vote with him in dispossessing the Jews, then he is merely affirming, through the ballot, the principle of the Rule of the Strong. If that is the case, the question then is: Does he have any ground of complaint when Hitler moves to suspend constitutional government after the Reichstag fire? For wouldn't Hitler merely be asserting now the same principle that the voter was acting upon in the voting booth? That voter would have no ground for complaint, for he was not in a position to offer a moral account, or a moral justification, for a "government by consent."[7] He had overthrown, or discarded that principle already, in his understanding, even as he was casting his vote. We might say, then, that he had gone through all of the outward acts, quite familiar to citizens voting in a democracy; but in point of fact, in literal truth, he had not been acting, in the voting booth, as a citizen in a democracy. And if a majority of the electorate had acted in the same way, with the same understanding, it could indeed be said that the outward forms of a republic had been present, but that this group of voters had ceased being a democratic people. As Jaffa put it, "in choosing to enslave other men it is impossible not to concede the justice of one's own enslavement." Or again: the voters no longer composed "a free people, whether the form of the government has already changed or not."


I would bring the matter back then to our current situation, our present discontents.[8] Lincoln said that Douglas's policy reduced to this: "That if any one man, choose to enslave another, no third man shall be allowed to object."[9] And my friend, Russell Hittinger, summed up our own situation in this way a few years ago: We have now created a private right to use lethal force, a private right to kill, for wholly private reasons.[10] One person may now claim to kill a second person, a second being, for reasons that may not rise above convenience, and under those conditions a third person may not object. That third person, or the rest of the community, may not object, because this is now, as we are told, a matter of "privacy." As Hittinger put it, imagine that a farmer in Vermont was told in the 1850s that if he objected to the prospects of slaves around him, he should not buy one. But he is also informed at the same time that he may not join with his fellow citizens in Vermont in deliberating about the question of whether the political community, in its laws, will recognize or honor this form of property. That is a matter of privacy, he is told, and it forms no part of the legitimate business of the polity. And now, in our own day, he is told that if he objects to abortion, he should not choose one for the women in his life. Yet, the choice of abortion, he is told gravely, remains a private matter, outside the laws. That is to say, whether the laws on homicide will be extended or contracted, to protect children in the womb or leave them unprotected, is no longer part of the legitimate business of the polity. And it is no longer part of his legitimate business, then, as a citizen or a member of the political community. But if the laws on homicide, or the protection of life, are not part of the purpose of a polity, or central to its legitimate business, what purposes on earth could be more apt or central?

We can readily anticipate the argument that would be offered in protest or resistance: Surely, it might be said, the claim for abortion is not as broad as Hittinger and I have stated it. Surely it would not be a claim that a person has a franchise, or right, of homicide in regard to any other person, and that the rest of us have been rendered powerless to object. Lincoln had sought to show that the argument for slavery, when cast in a principled form, could not be cabined, or confined to black people. But as the argument might continue, this claim over abortion is more readily and evidently cabined. And yet, is it? If so, to what would be it be cabined? Would it be: the right of a woman to end the life of the offspring contained in her own womb? But then we quickly learned, in the Baby Doe cases in the early 1980s, that the doctrine in Roe v. Wade would have to carry over to certain newborns.[11] The babies might come out with Down's syndrome or spina bifida, and we were told then, by jurists such as Thurgood Marshall, that the same rights of privacy contained in Roe v. Wade entailed now the exclusive, private right of the family to determine whether their newborn child had a life worth living, or a life worth preserving.[12] If the baby was slated for abortion, but in one of those rare cases, survived, then there were doctors and jurists ready to argue that the right to abortion entailed the right to an "effective abortion," or a dead child.[13] And very recently, of course, we have seen the case of the grisly partial birth abortion, with about 70 per cent of the child outside the birth canal. But once again we are told, quite explicitly, by the partisans of abortion that any yielding on this matter will imperil the whole corpus of rights articulated in Roe v. Wade. We do not then invent these connections in principle; the other side insists upon them. Kate Michelman insists, then, for the National Abortion and Reproductive Rights Action League, that the rights articulated in Roe v. Wade cannot be confined to the treatment of the child in the womb.[14] And now the Supreme Court itself confirms that point even more dramatically in its recent holding in Stenberg v. Carhart. What the judges have told us, in effect, is that they will not tolerate even the attempt to protect the child at the point of birth if there is any danger that laws of that purpose will work to inhibit abortions.

But as I say, there had been no doubt, earlier, about a connection between Roe v. Wade and the right to dispose of infants born with serious handicaps or medical problems. In fact, there has been no attempt to conceal the reach of that doctrine in Roe by confining that doctrine to infants in the womb. We have been told, by many of the same people, arguing from the same book, that the right of privacy in Roe should entail the "right to die," or the right to assistance in dying for adults who lack the means, or the competence, to end their own lives.[15] Who were the candidates for this right? First, it was people in a supposedly terminal state, but who were not dying at a decorous enough speed.[16] Then it was comatose patients, who were not exactly terminal, but living in a state, we were told, that could hardly be called "living."[17] In a flight of metaphor, their condition was often described as vegetative, as though a person in a diminished state had suffered a shift in kingdoms, from animals to plants. As the argument advanced another step, it was applied to people who were not comatose, but conscious some of the time--and yet, not "what they used to be." They were people so impaired that their lives were wanting in fullness, or in the vigor that marked human flourishing.[18] In the case of Dr. Jack Kevorkian, the candidates may now include people who are simply depressed and have no wish to live. Instead of dealing with the depression, we would do away with the depressed person.

By the time we have moved along this route, the right to die entails the obligation of certain doctors to act as agents, or accomplices, in inflicting death. That is what a right to die means in its hard, operational side, or in its moral logic: If it is rightful for a patient to end his life, he should not be deprived of this good, or this right, merely because he is incapable of effecting his own death. If he has a right, another person with the competence and means may have the obligation to minister to him, to act as his agent. The patient may also be too comatose to announce his own intentions or execute a formal will. And yet, why should patients in those conditions suffer discrimination? Why should they be deprived of a "good" made available to others? Once we establish the class of people who should not be deprived of this right; once we establish that doctors, or administrators, in a hospital, have the responsibility to administer this right; why should it not be available to orphans or to people without families? Why should it not be granted to them through the helpful intervention of strangers who happen to be doctors and administrators?

Again, I offer no fictions, or speculations. I merely note the train of cases we have already seen. We move, then, from children in the womb to newborns out of the womb, and from there to aged, or even middle aged people, with conditions terminal, but then not so terminal, unconscious but then partially conscious, or conscious but depressed. And then finally we arrive at a new right in the la w for strangers to administer death to adults, well outside the womb, who have neither ordered nor consented to their deaths. When we view the sweep of this movement, we must put again the question: How would this claim to kill, for private reasons, be cabined any more readily than that principle of enslaving other men, whose reach and dynamic Lincoln saw with an unsettling accuracy? And Lincoln saw the direction of that tendency precisely because he saw the principle that lay at the heart of the thing.


I return then to that final, sobering connection: that a people who have made themselves suggestible to these things have ceased to be a democratic people. In regard to slavery, I think that argument, offered by Lincoln, can be understood as literally true. But what of that movement, that shift in understanding I have just noted for the courts in our own day? With these decisions, on abortion and assisted suicide, the courts have had to talk themselves out of the logic of natural rights, even as they have proclaimed whole new inventories of rights. And as the members of the public has come to absorb these premises, incorporate them as their own, they have put themselves in a position in which they cannot give any longer a moral defense of their rights or the rights of others, or of the regime containing those rights.

To be sure, they are people quite used to the conventions of democracy. They are quite familiar with candidates, and they may even have a certain appetite for campaigns, with their color and drama and flavor. They may feel themselves enmeshed in the life of a democracy as they feel themselves enmeshed with the life of baseball when they are at ballgames and following, intensely, their favorite team. But in all strictness, they cannot count themselves as part of an association devoted to the end of securing the constitutional rights of other members of the community, for they cannot give an account any longer of why other human beings have a claim to be the bearers of rights in any strict sense. They cannot vindicate then their own rights, and for that reason, they are not in a position any longer to vindicate the rights of others.


That may be a jarring point, but it may be brought home more gently and compellingly by piecing together the lessons, or morals, that may be drawn through a series of vignettes. I was in a conversation with a former student of mine, who had indeed been one of the most gifted students in a course on the Constitution. But then the conversation suddenly took a turn that surprised me. My student leaned in, with a sheepish smile, and confessed that he had never really heard the fuller argument for natural rights, and he was inclined to be rather dubious about the notion. That did come as news to me, and I was curious: What were the grounds of his reservations, for how would he otherwise explain then the judgments he had reached and defended? If he had permitted himself no other grounds than legal positivism could supply--if he held that all moral judgments were reducible to the opinions that were dominant in any place--his judgments on the leading cases would become inexplicable. At this moment, my student drew on his considerable acuities, along with certain arts of presentation that he had acquired at Amherst. As the conversation unfolded, I raised an example of a homeless man. He might be quite diminished in his sensibilities, and he himself may bear a responsibility for certain injuries done to him. Nevertheless, we seem to look upon him as one who merits not only our sympathy but also a certain respect. Even in his diminished state, we regard him as a bearer of rights, and therefore we think we have some obligation to minister to him. And why was that? My student, drawing on his arts, then did what might be called a postmodernist riff: The established vocabulary came rolling out, in sentences, intervals, even cadences that seemed quite familiar. He now found himself trying to explain that notions of rights are "socially constituted" in different places, and we treat the derelict as a bearer of rights because of the way in which we, as a society, have come to view him. It had something to do with the lens of culture through which we had come to perceive and "construct" him. At that moment, I broke in and pointed out that he had just shifted, decisively, the terms of the conversation: He was talking about his perceptions or ours, about the lens we bring to the problem. He had ceased talking about him--the homeless man. The question put out of the picture was whether he had anything about him that merited our respect or commanded our reverence for his life? Was there anything intrinsic to him that could be a source of rights, anything about him that commanded our respect?

I had returned, not long before, from my visit to the Holocaust Museum, when I had been asked to do a piece for a magazine on the museum. As I moved through the halls with a friend, I suddenly came upon a scene that has been encountered by many visitors to the museum: a large vat filled with shoes. They were the shoes of the victims, as the Nazis sought to extract anything they could use again or sell. And what came flashing back, at that moment, were those searing lines of Justice McLean, in his dissenting opinion in the Dred Scott case: You may think that the black man is merely chattel, but "He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence." He has, in other words, a soul, which is imperishable; it will not decompose when his material existence comes to an end. The sufficient measure of things here is that the Nazis looked at their victims and thought that the shoes were the real durables.

I have several colleagues, in the academy, who have taken as their signature tune that line from Nietzsche, amplified by Dostoyevsky, that "God is dead" and everything is permitted. They are people of large natures, with sensitivities cultivated to the most exacting liberal temper, and so they are prepared to engage their sympathies for all species of hurts suffered by the mass of mankind. When the conversation turns, say, to a homeless man, they are quick to insist that there is, about that man, even in his diminished state, an irreducible human dignity. There is still, about his life, a certain sanctity that commands our concern. And we ask, "Sanctity?" Do they mean, of the sacred? Does that not rather point to--well, You-know-who?

We find ourselves in a curious situation in which so much of our language of politics and law is rooted in layers of moral understanding, and religious persuasion, which have departed from the recognitions of most of our people. My colleagues, as I say, are people of liberal sympathies, but even they would have to concede this point:that they cannot possibly give the same account of the wrong of slavery, or the wrong of the Holocaust, that McLean was in a position to give. And still less could they be in a position to explain why that homeless man, or that biped who conjugates verbs, should be the bearer of rights.

But there is such a pronounced drift in our culture to the premises of cultural relativism--to the language of value judgments, and a kind of soft, or genteel nihilism, that we may no longer be much aware of the drift, and the way it seeps into conservatives as well as liberals. Hence the charge that Harry Jaffa came to level at a man he otherwise esteemed as a decent man and a political friend. Chief Justice William Rehnquist had defined himself, over the years, in scholarly commentaries, as a jurist who showed his conservatism by preserving a fidelity to the positive law. That was a thoroughly defensible posture, but it generated certain points of worry even for his friends when he ventured into a philosophic stream that delivered him to a scheme of positivism in moral and legal judgments. In a notable speech, in the 1970s, Rehnquist said that our moral views represent only our value judgments until they are enacted into law. "It is the fact of their enactment," he said, "that gives them whatever moral claim they have upon us as a society." He went on to say:

If a society adopts a constitution and incorporates in that constitution safeguards for individual liberty, these safeguards do indeed take on a generalized moral rightness or goodness. They assume a general acceptance neither because of any intrinsic worth nor because of . . . someone's idea of natural justice but instead simply because they have been incorporated in a constitution by a people.[19]

That passage has drawn a sharp critique from Harry Jaffa, who unfolded its implications in this way:

To say that safeguards for individual liberty do not have any intrinsic worth is to say that individual liberty does not have any intrinsic worth. To say that individual liberty does not have any intrinsic worth is to say that the individual human person does not have any intrinsic worth. This is to deny that we are endowed by our Creator with rights. To deny that is in effect to deny that there is a Creator. This is atheism and nihilism no less than moral relativism.

But this is simply to say that conservatives, as well as liberals, can fall into the premises of legal positivism, and even with the best of intentions, they may not gauge the depth of the premises they are accepting. Again, the question is whether there is, in any of us, an intrinsic dignity, which becomes in turn the source of rights with an intrinsic dignity, that others would be obliged to respect. That sense of the problem would be conveyed finally, in the last vignette I would recall, and the last fragment I would put in place here. The scene is Brookline, Massachusetts, just a few years ago. It is just after the shooting that took place at an abortion clinic there, a shooting that took the lives of two women on the staff. The gunman, a young man crazed, eventually took his own life while in jail. A couple of nights after the shooting, there was a candlelight vigil. One young woman was there holding her daughter, born only about two weeks earlier. She explained to the interviewer that she was there for the sake of preserving, for her daughter, the same "reproductive rights" that she had enjoyed--meaning, of course, the right to have destroyed that child right up through the time of birth.

But if her daughter possessed those reproductive rights as rights that were part of "women's rights," it becomes apt to ask: What is the source of those rights, and when did she acquire them? Were they a species of "natural rights"? If so, they flowed to her as a human being, or as a woman, and those rights would have come into existence as soon as she herself began to be, or began her existence as a female. But in that event, she would have been the bearer of those rights when she was in her mother's womb, and her mother could not have held a franchise to sweep away all of her rights through the simple device of removing, in a stroke, the bearer of those rights. In short, if that child possessed "rights," her mother could not have possessed an unrestricted right to abortion.

Obviously, that could not have been the understanding of the mother, for her own "reproductive rights" evidently enjoyed a certain trumping power. They clearly overrode any rights possessed by the child. The child had a claim to exist, as the bearer of rights, only when the mother decided to confer upon her the privilege of living. In other words, the child became a rights-bearing person only when the mother, in a grand Nietzschean gesture, said in effect, "I permit you to live. I confer upon you, now, dignity and standing." But if the child gains her rights in that way, they could hardly be natural rights, and indeed they may hardly be rights at all. For they do not begin--they cannot begin--with the sense that there is anything intrinsic in the child that we are obliged to respect, or any objective truths that we are obliged to respect as truths, when they do not accord with our own interests.

To the extent that we buy on to a right to abortion, it must follow, inescapably, that we must buy on to this story or this construction of how we acquire our rights. No logic of natural rights can be squared with that right to abortion. But in that event, this most awkward tangle of construction produces that bizarre kind of right, a right that virtually extinguishes itself. Let us suppose, for example, for the sake of argument, what I would otherwise contest at every point: that there is such a thing as a right to abortion. But the logic that must attend that right cannot draw on the logic of natural rights, or the sense that there is, in any of us, from the very beginning, an intrinsic dignity, the source in turn of rights with an intrinsic dignity. All rights then must be conferred by people in a position to confer them, and it must be clear that the only ground of their rightness lies in the act of their conferring. If those rights, or franchises, are conferred by the ruling majority in any place, it simply means, again, that those rights are thought to be consistent with the interests of the majority. When we come through this chain of steps, each clear in its import, what would that right to abortion now mean? It would be a right conferred only because it is thought to be consistent with the interests of those people who are affected most directly--or consistent with the interests of those who rule. The so-called right to abortion would be, then, a right that could readily be qualified, restricted, even canceled outright, if it were no longer thought to be consistent with the convenience or interests of others.

Under those conditions, I would submit, we may still talk about a right to abortion, but with no more significance than attaches to a right to use the squash courts at the college. It is a right that will always be contingent, always dependent on its acceptance by local opinion, always open to repeal at any point. It would bear no resemblance to what the partisans of abortion refer to these days as abortion rights. It would not in fact have the substance of a right in the strictest sense, the sense that attaches to natural rights. At same time, my own deeper point here is that this is not a problem that can be fixed as soon as the defenders of abortion rights become alert to the paradox. This particular problem is built into the very nature and logic of a right to abortion. It is an incorrigible part of any scheme that begins by deny ing any objective standing to a human life, by withdrawing any intrinsic dignity for human life, and by making the very notion of life depend on the convenience, or the interests, of those who would destroy it.

If there is a dimension even further to this train of implications, it would begin with the recognition that the story that comes along with the right to abortion is a story that is not confined to abortion: it must determine, across the board, the entire spectrum of our claims to rights. After all, the story that comes along with abortion is a story of how each one of us acquires our rights at our very beginnings as rights-bearing beings. It is a story of the radical absence of rights, our nakedness of rights, until those rights are conferred by the powerful. It implies also the most emphatic judgment on the question of whether those rights have cognitive significance, objective standing as truths, or whether they depend at every moment on perception or the "social construction" of reality. Of course it implies something about us, in the same way, as the vessels of those rights. If there is no objective truth attaching to nature, or human nature, if the very meaning of a human being is, as some radical feminists say, always contingent, always open to "contestation,"[20] then how could any of us be the bearers of rights that have objective standing? Could our rights, after all, have an objective standing, while we ourselves do not?


In sum, the people who sign on to the right to abortion in the radical style of our current laws--a right to destroy a dependent human life at any time, for any reason--those people set in place the logic that deprives them of all of their rights. But not only "them": To the extent that this story line becomes necessary to the understanding of rights, it affects all of us with its radically diminished state. Hence, the conclusion that I set myself earlier the task of explaining: The people who talk themselves into this diminished logic of rights cannot vindicate that right to abortion, because they are not in a position to vindicate any set of rights, for themselves or others. They have made of themselves the most infirm allies, as fellow citizens, for they cannot be depended on any longer to come to our side in defending any of the rest of us, in the defense of our rights. For they can no longer offer a moral defense of those rights. And for the same reason, they cannot offer any longer a coherent defense of the regime that began with the understanding of a Creator endowing us all, from our own beginning, with unalienable rights.

We might ask earnestly, without coloring the question: How would anyone describe a state of affairs in which a people can no longer give an account, or a moral defense, of that regime in which they stand as citizens? How could they be in a position then to defend their rights or the rights of their fellow-citizens? And how could that state of affairs be regarded as anything other than a crisis in the regime itself?

The current crisis may not appear serious to us--it may not have the feel of a real crisis--because people still live and work in the conventions of a free society with elections. But as we should know, people can move in the groove of conventions without knowing the reasons that stand behind those conventions. G. K. Chesterton once remarked in this vein:

The world, especially the modern world, has reached a curious condition of ritual or routine; in which we might almost say that it is wrong even when it is right. It continues to a great extent to do the sensible things. It is rapidly ceasing to have any of the sensible reasons for doing them. It is always lecturing on the deadness of tradition; and it is living entirely on the life of tradition. It is always denouncing us for superstition; and its own principal virtues are now almost entirely superstitions.[21]

And so Chesterton argued that modern people express a revulsion from cannibalism, but they no longer seem able to explain the reason behind the revulsion. The modern man is more likely to say, "We just don't do that here"--not in this club, not on Park Avenue. The answer was different when people respected the difference that separated men and animals, and were affected with the conviction that we were made in the image of something higher. But as Chesterton observes, "The modern theorist will have to defend his own sanity with a prejudice. It is the medieval theologian who can defend it with a reason."

The task for us all is to recover the capacity to give those reasons again. You may recall that Plato put forth the fetching notion in the Meno that knowledge was a matter of remembering, or unlocking what is already contained in our souls. This young country has had the benefit of remarkably gifted statesmen and writers, who offered teachings that were once absorbed deeply in the character of our people. For us, it is a matter now of recovering, as a people, the things we once used to know. 

Dr. Arkes, the Ney Professor of American Institutions at Amherst College, is a visiting fellow at the Ethics and Public Policy Center in Washington, D.C.

1. Lincoln, "Speech at Springfield, Illinois," June 26, 1857, The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick: Rutgers University Press, 1953), 2:404.

2. Lincoln, "Speech at Peoria, Illinois," October 16, 1854, Collected Works, 2:265-66.

3. John Nicolay and John Hay, Abraham Lincoln: A History, (New York:Century, 1986), 7:278.

4. See Harry V. Jaffa, Crisis of the House Divided (1959; reprint, Chicago: University of Chicago Press, 1982), p. 334: "A free people cannot disagree, or agree to disagree, on the relative merits of freedom and despotism. If the majority favors despotism, it is no longer a free people, whether the form of the government has already changed or not."

5. Lincoln, "Speech at Springfield, Illinois," Collected Works, 2:222-23.

6. Jaffa, Crisis of the House Divided, p. 334.

7. For an interesting argument converging with this one, see Richard Neuhaus, "Can Atheists Be Good Citizens?" First Things, August-September 1991, pp. 17-21.

8. In this preceding section of the argument, and in the section to follow, I've been drawing on a lecture I presented at the law school at Loyola University in New Orleans, as part of a restatement of the argument in our Symposium on Judicial Usurpation in the journal First Things. My fuller argument here was published in The End of Democracy II, ed. Mitchell Muncy (Dallas: Spence, 1999), pp. 44-85 "Prudent Warnings and Imprudent Reactions."

9. From the "House Divided" speech, Springfield, Illinois, June 16, 1858, Collected Works, 2:462; emphasis in the original.

10. Russell Hittinger, "When the Court Should Not Be Obeyed," First Things, October 1993, pp. 12-18, especially p. 16.

11. See Bowen v. American Hospital Association 476 U.S. 610 (1986).

12. See Marshall's oral comments in the Bowen case, U.S. Supreme Court, Oral Arguments, Vol. 8, Cases Nos. 84-1573-84-1560; October Term 1985, pp. 16, 23.

13. Without pronouncing a judgment on the matter, the Supreme Court took note of these kinds of arguments in Planned Parenthood v. Aschcroft (1983). Justice Powell noted the testimony of Dr. Robert Christ, that "the abortion patient has a right not only to be rid of the growth, called a fetus in her body, but also has a right to a dead fetus." Justice Powell pronounced this argument to be "remarkable in its candor." But to describe the argument as "remarkable" is not exactly to pronounce it "wrong," and still less is it to supply the reasons that make it a wrongful construction of the doctrines put forth by the Court. See 76 L Ed 2d 733, at 740, n. 7. We may remind ourselves that, without exactly saying so, Judge Haynesworth had been willing to install, in effect, the same understanding--of a right to an effective abortion--in his opinion in Floyd v. Anders, 440 F. Supp. 535 (1977).

14. See her testimony in opposition to the bill on partial-birth abortions in "Partial-Birth Abortion:The Truth," Joint Hearing before the Senate Committee on the Judiciary and the Subcommittee on the Constitution of the House Committee on the Judiciary; 105th Congress, 1st Session, March 11, 1997, pp. 19-21. And see also the testimony from the representatives from other groups that have been engaged in the defense and promotion of abortion: the Planned Parenthood Federation, and the National Abortion Federation, pp. 23-26, 31-35.

15. See, as a notable case in point, the opinion by Judge Stephen Reinhardt, in Compassion in Dying v. Washington 49 F. 3d 790 (1996), the opinion that was overruled by the Supreme Court in Washington v. Glucksberg, 138 L Ed 2d 772 (1997).

16. See In re [Nancy] Jobes 529 A. 2d 434 (1987).

17. See Guardianship of [Barbara] Grant, 747 P. 2d 445, 452 (Wash. 1987) (en banc), modified, 757 P.2d 534 (Wash. 1988), and Bouvia v. Superior Court ex rel. Glenchur, 225 Cal. Rptr. 297, 304 (Ct. App. 1986).

18. See Jobes and Bouvia v. Superior Court ex rel. Glenchur.

19. William H. Rehnquist, "The Notion of a Living Constitution," Texas Law Review 54 (1976): 705.

20. Judith Butler, "Contingent Foundations: Feminism and the Question of Postmodernism," in Feminists Theorize the Political (New York: Routledge, 1992), pp. 3-21.

21. G. K. Chesterton: "The Thing: Why I Am A Catholic," Collected Works of G. K. Chesterton, ed. George Marlin (San Francisco: Ignatius Press, 1990), 3:278.