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.
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