National Unity

Reorienting Jurisprudence to the Constitution and Repairing National Unity – Part 1

Rick Plasterer on October 5, 2021

Mark Rienzi, Professor at Catholic University of America’s Columbus School of Law, and President of the Becket Fund for Religious Liberty, delivered the second Constitution Day Lecture of the Institute for Human Ecology, sponsored by the Jack Miller Center, on September 21. He focused on the adequacy of the Constitution to provide a framework for a divided country, and the role of the Supreme Court.  

Rienzi believes the Constitution provides an adequate framework. He said that the Constitution’s most important function is holding the country together while accommodating divisions. To illustrate just how divided the country is he observed that “Presidents of both parties have called disagreement with their policies not just wrong, or misguided, but un-American, and sick, and despicable.” Losing presidential candidates in the last two elections have claimed that “the elections were stolen, or illegitimate.” But “deep disagreement is not new, and is not inherently bad.” An alternative to this regime would be one in which the government “prescribes … the one true religion, or the one correct scientific theory, or the one way of thinking that’s permissible, and everyone’s forced to fall in line and agree.”  

Rienzi noted that James Madison “defined a faction as ‘some common people united around some common impulse of passion.’” Today, he said, we would call factions “interest groups,” and some of them do “stand in deep disagreement with one another.”

Madison said that in dealing with interest groups, “we could either get rid of the causes, or control the effects.” A free society cannot get rid of the causes, because the liberty it grants allows factions to flourish, grow, and possibly prevail in their objectives. Instead, a free society attempts to control the effects. This is done by forcing the factions to compete in a political process. In this process, “even the losing side has the satisfaction” of having had the opportunity to achieve its objectives in a free political process. And losing factions can continue to exist and advocate for what they want.

Rienzi said that although constitutional liberalism endeavors to turn conflict into competition, and result in outcomes everyone can accept as legitimate (if not desirable), it “does create some guard rails.” These are the “core liberties” it specifies as being untouchable by the democratic process (such as freedom of religion, speech, assembly, etc.).

He referred to the so-called Jehovah’s Witness cases during World War II, regarding the objection of Jehovah’s Witness children to pledging allegiance to the American flag. The decisive case was West Virginia Board of Education vs. Barnette (1943), in which Associate Justice Robert Jackson said “the very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy and to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” Most disagreements are, however, open to the political process.

But sometimes the Supreme Court gets the Constitution grievously wrong. This was true in the first Jehovah’s Witness case, Minersville School District vs. Gobitis (1940), which declared that Jehovah’s Witness children had no right to refuse to salute the flag, even though they thought doing so was a sin. The Jehovah’s Witnesses won in the lower courts, but the Supreme Court decided that local authorities were experts in education, and the court shouldn’t second guess them. The court basically said that it “had no role to play” in protecting the religious freedom of the Jehovah’s Witnesses. This “set off a wave of violence” against Jehovah’s Witnesses. “Witnesses suffered beatings,” their buildings were burned, “some of them were dragged out of their homes and forced to salute the flag, some of them were force marched out of town … one was castrated. Law enforcement officials often looked the other way, thinking they had the Supreme Court’s blessing … By getting the Constitution so wrong, the court exacerbated our differences, and stoked our divisions.”

Happily, this decision had little influence on law, as the Barnette case overrode it just three years later. “Gobitis was a case in which the court got the Constitution wrong by failing to enforce the guard rails.” These are rights explicitly mentioned in the Constitution, which are therefore placed beyond politics and democratic decision making.  

Sometimes, however, the court makes it opposite error. It attempts to resolve “deep questions” that the Constitution does not answer and which should be left to the political process. A prime example is the attempt to infer a constitutional right to abortion.  “Nearly fifty years later, it is clear, that the court’s intervention has exacerbated our divisions over abortion. It has inflamed them, rather than resolving them.” Even though the court used agnosticism about the human status of unborn children to justify Roe vs. Wade, “the science was clear in 1973, and in fact, had been clear long before,” that unborn children are new, living human beings. He noted that in 1859, the American Medical Association said that abortion was “the unwarrantable destruction of human life.” The AMA said that any doubts about this were mistaken, according to existing medical science. Similarly in 1871, the New York Times described abortion as murder. Rienzi said that although his Catholic faith told him to value unborn human beings, their status as human beings is really “basic science,” and “honesty.”

Although the court professed ignorance about the status of unborn children, “it professed certainty” about the right to abortion being among those rights the Constitution has put above democratic political decision making and “given to the court to decide as a legal principle.” Rienzi observed that Justice Ruth Bader Ginsburg said Roe vs. Wade was “heavy-handed judicial intervention [which] was difficult to justify and appears to have provoked not resolved the conflict.’ He said that although Ginsburg supported abortion, her judgment about the justification and results of Roe vs. Wade was correct. The decision has prevented a political decision and the diminution of social and political discord in the abortion controversy.

Just as the court’s refusal to enforce the constitutional guard rail protecting religious freedom resulted in attacks on the unpopular Jehovah’s Witnesses, so, it could be added, its attempt to establish a new guard rail protecting consensual sexual activity (begun in the Griswold vs. Connecticut case eight years earlier, which claimed to a right to privacy appealed to in Roe) has resulted in an unresolvable political conflict. Consequently, Rienzi said, there are high profile campaigns to get the long established and beneficent Little Sisters of the Poor, who are not at all necessary in delivering contraception, to violate their religious precepts to score political points with secular voters who feel oppressed by religious sexual morality. Meanwhile, on the other side, there are sidewalk protesters against abortion outside abortion facilities to fight an abortion battle the court has made it difficult or impossible to win in legislatures.

By contrast, while the abortion issue is important in Europe, it is not the “dominating issue” that it is in the United States. Rather, the issue in Europe is worked out in a democratic legislative process. The pro-life movement there has not prevailed in much that it would like to accomplish. Hundreds of thousands of unborn children are killed. But the conflict is less, and the violence is less. “So the court’s intervention in Roe … was bad for the country. It’s also been bad for the courts.” This writer would add that this was exactly what was predicted in Justice Hugo Black’s dissent from the Griswold decision.

My point is that there is no provision of the Constitution which either expressly or impliedly vests power in this Court to sit as a supervisory agency over acts of duly constituted legislative bodies and set aside their laws because of the Court’s belief that the legislative policies adopted are unreasonable, unwise, arbitrary, capricious, or irrational. The adoption of such a loose, flexible, uncontrolled standard for holding laws unconstitutional, if ever it is finally achieved, will amount to a great unconstitutional shift of power to the courts which I believe and am constrained to say will be bad for the courts and worse for the country.”

This prediction was dead on the mark. Failure by the Supreme Court to respect what the Constitution places in and removes from the political arena has turned “our judicial confirmations have turned into blood sport,” Rienzi said. Because of the dramatic judicial activism in Roe, people expect the courts to authoritatively and finally decide “our most fraught and vexing questions.” Both the Roe vs. Wade and Casey vs. Planned Parenthood (1992, which upheld Roe) decisions force “the court periodically to lie to itself and to the public, as it would this term, if it would pretend that it is consulting the Constitution” about whether Mississippi can lower the limit of legal abortions from 22 to 15 weeks.  Everyone knows that instead of going to “look in the Constitution and find the answer that they’re really just figuring out what answer they think is right.”

As long as the court continues down the course set in such mid-twentieth century decisions as Griswold and Roe, it diminishes respect for itself as an institution, as well as respect for the Constitution. This happens by setting aside the democratic process for dealing with “our biggest and most important differences,” and then by taking upon itself “a job and a responsibility that it was never meant to have.” But at this time of great division, we need a Constitution, particularly a First Amendment, which is seriously enforced by a court which is doing the job it was meant to do, Rienzi said. He does see signs of a different direction, which will be reviewed in a subsequent article.

UPDATE: Part II can be viewed by clicking here.

  1. Comment by David on October 5, 2021 at 2:05 pm

    “Losing presidential candidates in the last two elections have claimed that “the elections were stolen, or illegitimate.”

    I do not recall Hillary Clinton claiming the election was stolen and she conceded early on and sent Trump a congratulatory message. Nor did her followers attempt to storm the Capitol to prevent the finalization of the election. The statement is quite false and a distortion of history.

    “The [Assocaiated Press/ NORC] poll, conducted June 10-14 [2021] among 1,125 U.S. adults, found 57% of respondents believe abortion should be legal overall in all or most cases—with 23% saying it should be legal in all cases and 33% saying only in most cases—including 76% of Democrats and 36% of Republicans.

    That percentage was even higher when asked whether abortion should be legal during the first trimester specifically, with 61% saying it should be legal in all or most cases.

    Only 34% believe abortion should be legal in all or most cases in the second trimester, however, and 19% say it should be legal during the third, including 52% and 28% of Democrats, respectively, and 18% and 8% of Republicans.”

    Of course, morality is not determined by polls. Most people do not consider crushing an acorn the same as cutting down an oak tree.

    We have not had national unity since before the Civil War and nearly all current divides fall along the free state/ slave state divide from politics to religion to Covid-19 vaccinations. In retrospect, preserving the Union was a big mistake.

  2. Comment by Rick Plasterer on October 5, 2021 at 4:19 pm

    David,

    Presumably, by using the word “illegitimate,” Rienzi was referring to the years’ long effort to prove collusion between the Trump campaign and Russia to manipulate the 2016 election, which it’s claimed originated with the Clinton campaign. In Oct. 2016, Clinton tweeted a message claiming a “direct connection between Trump and Russia,” according to the New York Post:

    https://nypost.com/2021/09/26/will-hillary-apologize-for-the-biggest-hoax-in-us-political-history/

    How popular abortion is was not the question Rienzi was addressing. His point is that it doesn’t matter how unpopular abortion might be, the Supreme Court has imposed its own opinion, not based on the Constitution, but on what the court (at least in 1973) thought was right. According to the Constitution, there is no reason why abortion must be legal.

    Rick

  3. Comment by David on October 6, 2021 at 9:03 am

    I would not take Rienzi’s statement to refer to things prior to the election. Major powers do attempt to influence elections elsewhere in ways they imagine to be to their advantage. Russia is notorious for promoting unrest in the former Soviet states.

    Linking to an article that begins with the classic “when did you stop beating your wife” line is not very supportive of fact. Indeed the NY Post is part of the Rupert Murdock media empire that includes Fox News—fair and balanced it is not. Indeed, opinion outweighs actual news.

  4. Comment by Theodore Miner on October 6, 2021 at 9:53 am

    An analysis of constitutional law – how quaint.

    “Land of the free, home of the brave.”
    “The Constitution ensures Americans receive due process.”
    “Equal justice under the law is a hallmark of the American justice system.”
    “We have a government restrained by checks and balances.”
    “They hate us for our freedoms.”
    “If I put my tooth under my pillow, the tooth fairy will come and exchange it for a dollar bill.”
    By now most Americans know these statements are fairy tales. Not necessarily on the level of Grimm’s scary nightmare tales, more like big white lies and obsolete constructs repeated in unison by propagandists in order to make us feel good so we don’t ask too many questions.

  5. Comment by Rick Plasterer on October 7, 2021 at 11:18 pm

    Mr. Miner,

    That the impartial application of the law justifies favor to special interests is the justification of communist and other radical attacks on free societies.

    Rick

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