An indication of the corruption of a nation’s political
integrity and quite possibly its existence simply is the degree to
which its constitutional jurisprudence is relegated to “opinion” or
uncertainty. Constitutional law, a republic’s founding and
fundamental jurisprudence, is predicated on certainty. This is not
the least important, related aspect of our tragic confusion about
Applied Science as Certainty, and all else as Uncertain. I ask that
readers who are not clear about this matter to take note of this
“problem” as you read about “jurisprudence and certainty” here.
Certainty in constitutional matters arises from fidelity to the
meaning of words, logic, and above all in the fact that is
more than an “opinion” that men live necessarily in sovereign
bodies. When constitutional questions are no longer guided by the
plain language of the Constitution itself, when the historical
record of the founding understandings of that document are held to
be “irrelevant,” when the law of foreign nations becomes
constitutionally persuasive, and when legal scholarship dismisses
common sense, certainty gives way to a radical uncertainty and the
stage is set for a political battle over a jurisprudence adrift, no
longer moored to the bedrock of the nation’s founding
understandings.
The resulting political battle is not the cause of the
malevolence; it is the manifestation of a corruption at the very
core of a society’s being. The Senate confirmation hearings for
Supreme Court justice nominee Judge Samuel Alito and the Supreme
Court’s 1973 decision to overrule state law protections of the life
of the unborn child in Roe v. Wade, illustrate this point.
IN THE ALITO CONFIRMATION HEARINGS, the questions posed by Senators
obsessed with Alito’s view on abortion turned upon the legal
doctrine of stare decisis, the rule that underscores the
certainty of prior legal decisions. Would Alito honor certainty and
not overrule Roe? The question suggests that Roe
itself was the product of constitutional integrity. It was not. The
real question posed by these Senators was not whether Judge Alito
as a Supreme Court justice would uphold authentic constitutional
precedent, but whether he would uphold radical departures from
constitutional law, which themselves had undermined the certainty
and integrity of the Constitution, and allow the Supreme Court to
continue its move toward even greater uncertainty. Constitutional
“uncertainty” is called lawlessness.
The point was made when Senator Joe Biden, a senior Democrat,
lawyer, and one of the legal experts in the Senate, raised a pocket
copy of the Constitution in his right hand and asked Alito how the
judge could say logically that Freedom of Speech was settled
constitutional law and Roe v. Wade’s “privacy” right to
abort a fetus was not. Unlike Chief Justice John Roberts at his
confirmation hearings, who conceded Roe was settled law
“for the Court,” Alito would not opine on abortion and Roe
one way or the other even to that limited extent. But Judge Alito
answered pertinently to the effect that Freedom of Speech is
expressly written in the Constitution; a privacy right to abort is
not. When given the opportunity, Alito explained that while there
are protections for aspects of one’s “privacy” included in
certain very specific provisions in the Bill of Rights, the “right”
to abort was “interpreted” to exist by the Supreme Court. In
another forum, this judge would have said “legislated” or
“manufactured” or possibly “divined” by the Court. But he
understands freedom of speech in an aspect Mr. Biden strained in
his dramatic question.
Other Senators asked the same type of question contrasting the
constitutional principle of “One Man, One Vote” with abortion,
since Alito was prepared to speak of the voting principle as
settled law. On the “One Man, One Vote” contrast, the judge danced
around it by saying it was “settled” because it was “settled.” His
answer in a less constitutionally corrupt and politically charged
forum would have been: On the one hand, “One Man, One Vote” is
settled law because the country is not divided on this question —
and it is not divided because the principle is a manifestly logical
rule of constitutional government grounded in a people sufficiently
cohesive to form a nation. On the other hand, the country is
sharply divided over the idea that the right to life guaranteed
explicitly by the Constitution can be trumped by a right
effectively derived from Science to abort the unborn — and it is
divided because the Court legislated, not adjudicated, a new,
unprecedented law.
In such an environment, Alito could have explained that the
Constitutional debate over the definition of life is not something
five out of nine unelected lawyers on the Supreme Court should
simply craft from whole cloth. As for Constitutional precedent, the
decision did not have one. Considered at the level of
Constitutional scholarship, very few would argue that the legal
opinion in Roe was anything more than a result in search
of a long-winded policy analysis with little constitutional
integrity. Even as policy, it essentially urged a specious medical
analysis as support for a utilitarian position that puts method
before ends. This is to say it was based in the opinion, which is
contrary to fact, that “ends” have been replaced, of all things, by
Science.
The 7-2 Roe opinion sought to create Certainty with
Science (in this case, “medical science”) in inverse proportion to
its radicalizing the uncertainty of Constitutional law. These
shenanigans of jurisprudence, poorly conceived and thus poorly
received, are murderously consequent if the five men erred by
redefining the Constitutional understanding of “life” by
relinquishing the depth of Constitutional meaning vested in judging
to medical science. Judge Alito danced around the questions of
stare decisis because he understood that the debate has
been corrupted beyond the tools of language to repair. To have said
what everyone knows, that Roe itself was a revolutionary
departure from U.S. Constitutional law and the basic principles of
federalism constituting America’s ground as a nation, would have
ended his aspirations to join Justices Scalia and Thomas to bring
the Supreme Court back to its founding mission: Constitutional law
predicated upon certainty.
CERTAINTY AND LAW ARE AS ONE in an ordered and stable society. When
constitutional jurisprudence, the law of the law, becomes a tool
for the political goals of a radical relativism whose certainty is
grounded in the magical incantations of the modern scientist,
history, precedent, logic and common sense become the primitive
“opinions” of an age surpassed by “progressive” and “scientific”
ethics and “rights” limited only by the reach of the new scientific
age. Science, as I have noted, knows of no nations (i.e., “Doctors
Without Borders”). It is unpatriotic and value-free. The End or
Telos of existence, the purpose of national existence, the
sanctity of one’s own People, mean nothing to the scientist who has
not learned that the certitude of mathematical physics rests first
of all in the apriori absence of just these things, that is, of
Ends, nations, Peoples. Method and Process are the new
constitutional framework. In trading scientific certainty for the
rule of law America joins other Western societies, and is now, like
them, drifting toward incertitude about who and even what they are;
and about national life as such.
