Enduring Truths

Why political manipulation has not budged the Supreme Court

There has been weeping and gnashing of teeth by the Axis of Evil, dissatisfied with George W. Bush's nominations to the Supreme Court of the United States. Who is the Axis of Evil? Robertson, Viguerie, Schlafly, Bork, Falwell, LaHaye, Brownback... Dr. Dobson hangs out with this crowd, but I cannot characterize him with this unflattering label. Dobson's well-known books, pamphlets and inserts on family and child-raising are insightful, timely, thoughtful... excellent companions to Dr. Benjamin Spock's book on Baby and Child Care. His web site does indulge in nonsense about five year olds showing signs of homosexuality if they prefer reading to picking fights with other boys their age. Still, one can only wonder at the political company Dobson seems to keep. He ought to know better.

It seems that the Axis of Evil have been trying for twenty five years to pack the court with judges who will rule as this shady cabal wishes the court to rule. Somehow, with three appointments by President Ronald Reagan, another Reagan appointment elevating a Nixon appointee to the post of Chief Justice, two appointments by President George Herbert Walker Bush, and a measly two appointments by President William Jefferson Clinton (who found the most bland, unideological nominees imaginable), every new session of the court appalls self-styled "Christian" leaders. You would think they could be winning 6-3 decisions on a regular basis, considering Rehnquist's vote, on top of the new appointments by their favored white house tenants.

The reason these subversive enemies of the American republic cannot win is very obvious. What they seek is simply not provided for by the Constitution and laws of the United States of America. It never has. A large part of their program is hostile to the most fundamental principles that inspired our founding fathers. As judges are appointed to the Supreme Court, they come to terms with this plain and simple truth. Each justice, whatever their loud and outspoken utterances before joining the court, has recognized that they really are there to preserve, protect and defend the Constitution of the United States. They are not there to rewrite it. Every justice has done their job with integrity and respect. That is why they have disappointed the Axis of Evil.

Each justice does, of course, make mistakes. The court as a whole has made decisions that may come back to haunt us in various ways in the future. No human institution is perfect. Every human institution, including the government of the United States of America, is a reflection of the free will God allowed to his last and most complex creation. (On this note, I have news for Dr. Dobson: God does not have a preferred choice for our next justice. The government of the United States derives its powers from the consent of the governed, and God is watching to see what we do to and for ourselves.) The court has for the most part stayed within the boundaries of fine-tuning the details by which broad, fundamental concepts apply to sticky, real-life controveries. It has not thrown the plain meaning of the Constitution out the window, to pursue any political establishment's personal preferences.

Justice Scalia has long recognized that there really IS an Establishment Clause in the First Amendment. It really does say that "Congress shall pass no law respecting an Establishment of religion." Scalia has laid out arguments that acknowledgment of God by government bodies is acceptable. He has relied on Jewish and Muslim sources, as well as Christian, to hold that our nation was founded on monotheism, not on any specific faith. He has also passionately defended the right of believers in many gods, no god, or a disinterested creator who does not intervene in daily life, to the free exercise of their beliefs. The problem the Falwells and Schlaflys and LaHayes must face is that they wish to Establish a religion. No judge of any integrity, sitting on the Supreme Court, now or in the future, could ever give them what they seek.

Justice Scalia has proposed to streamline the tangled web of Establishment Clause jurisprudence by applying a simple "coercion test." If a person is coerced by government authority to participate in a religious exercise, it would by unconstitutional Establishment of religion. No coercion, no establishment, no violation. That would indeed allow more room for public acknowledgment of God. But it would not allow for mandatory prayer exercises at the start of the school day, nor would it define the United States as "a Christian nation" – which it has never been.

Justice O'Connor has proposed a simple "endorsement test." Government action which makes members of certain faiths into "political insiders" while members of other faiths or no faith are "political outsiders" would be prohibited. Quite possibly, a sound, streamlined approach would use both tests, plus the exercise of sound judgment in close cases, such as Justice Breyer relied on to uphold the existence of a Ten Commandments monument on the grounds of the Texas state capitol. That makes two Reagan appointees and a Clinton appointee, all upholding the First Amendment, while contributing slightly different approaches to the application.

The politically insignificant debate over abortion is going nowhere for similar reasons. Despite the best efforts of its deluded friends and its avowed enemies, Roe v. Wade remains good law for good reason. The decision has no more legal significance than Justice Harry Blackmun recorded in his private notes, recently studied. All the constitution provides is that so intimate a decision should lie between a woman and competent medical advice. True, the profusion of "clinics" primarily dedicated to abortion is an obscene parody of this simple principle. They provided a convenient lightning rod for those who wished to impose their own vision on every pregnant woman. But fundamental law does not change merely because it is misunderstood or misused.

Justice Thomas often gets this wrong. Fortunately, he is only one of nine justices. The rulings of the court emerge from discussions among all nine, as well as being decided by a majority. Justice Thomas wrote that "a state may allow abortion" but the constitution does not require any state to do so. Of course he has it backward. The constitution does not allow or authorize any state to do much of anything. The states simply retain powers they had prior to ratifying the constitution. The federal government has only the powers granted to it by the constitution. The constitution does restrict the powers of the states, but is not the source of the authority that the states do possess. Nor does any woman require permission from a state to have an abortion. The question is whether a state may impose criminal penalties for abortion. The answer, in the third trimester, is yes, except if the mother's life is in danger. The answer in the first trimester is no. The state's police power has been restricted by the Fourteenth Amendment.

There is of course no clear constitutional mandate that during the first trimester, a woman has a right to abort her pregnancy. But it is clear, as Justice Louis Brandeis wrote, that the framers of the constitution intended to establish a broad right of the individual citizen to be left alone by the government. The exact boundary of this freedom was not defined, but there certainly is one. The painful task for the court has been to define what it applies to, and how, what it does not apply to, and why. The painful truth for those who wish to intrude on every aspect of other people's lives? Simply this: that all levels of government are constitutionally denied such sweeping powers.

The hierarchy of the Roman church faces a similar obstacle. The princes of the church want their own edicts to be the law of every land in the world. Again, this is contrary to the fundamental law of the United States. We fought a revolution against the rule of princes. Our government is constitutionally denied the authority to intervene, in matters the Roman church would very much like to intrude upon. Therefore, the machinery of government, in this nation, is unavailable to fulfill the wishes of the bishops. No justice of the Supreme Court, including those professing and practicing the Roman Catholic faith, have ever found a legal basis to comply with the wishes of the hierarchy. Every immigrant adhering to this faith, when they became a citizen of the United States, took an oath giving their undivided civic allegiance to the Constitution of the United States. This is part of the heritage they have bequeathed to their descendants, citizens of this nation by birth. The princes of the church may issue their commands to any person who freely and voluntarily chooses to obey. They may not, however, blackmail members of their church who hold public office, or intrude on the secret ballot of individual church members.

That the federal constitution should protect individual citizens and families against abuse of power by state governments is not new. James Madison sought such protections as part of the original Bill of Rights, but they were not adopted at that time. Less than 100 years after the ratification of the Constitution, the nation it created was split by a civil war. The wisdom of Madison's proposal was recognized as a necessity in putting the nation back together. Since adoption of the Fourteenth Amendment, the states as well as the federal government are denied authority to abridge the privileges or immunities of citizens of the United States.

There is an Axis of Evil that would like to abridge the privileges and immunities of citizens of the United States. They would like to use the machinery of state and local governments to impose their own dictatorship on any district where they can seize control. They are frustrated that the Constitution of the United States will not allow this. They are the people Madison warned us against in The Federalist Papers, when he wrote that "enlightened statesmen will not always be at the helm." Madison and Alexander Hamilton were both very explicit that it is the role of the judiciary to restrain the legislature when it exceeds its proper authority. Hamilton wrote that it is the duty of the courts of justice "to declare all acts contrary to the manifest tenor of the constitution void."

That is why no president, no new appointements, no lobbying by the avowed enemies of American liberty in our midst, have ever succeeded in swaying the court to their own perverse agenda.

Pandas in the Court

Can courts and school boards design with intelligence?

A lawsuit is now being argued in federal court in Pennsylvania. According to those taking sides, it is a dispute about the teaching of alternative theories to the evolution of life, theories different from those that more or less originated with Charles Darwin. More specifically, the legal issue is whether the local school board in Dover, Pennsylvania, has used government authority to establish a religious belief. Both sides of the dispute speak in the name of freedom. Those who support the school board defend their right to freely express their beliefs. Those who sued the school board claim their right to be free of government intruding into matters of religion.

It is a difficult case for any court to decide. Courts in the United States have no jurisdiction over matters of faith and doctrine. Nor is there any way a court could rule on what is, or is not, good science. Both religion and science deal, in some sense, with what is the truth. Neither legislative action nor judicial rulings can make any statement more true, or less true, than it is. Neither can a statement by the president of the United States, by a state governor, or by a mayor or a local school board. One of the parents suing the school board is quoted as saying "In science class, you don't say to the students, 'Is there gravity, or do you think we have rubber bands on our feet?' " This man is a life science teacher in a neighboring school district, and a Republican.

Perhaps the real problem lies in the description of "evolution" given in a recent New York Times article about the case: "Evolution finds that life evolved over billions of years through the processes of mutation and natural selection, without the need for supernatural interventions." Is that so? Well, IF the available scientific data proves that life was created entirely by natural selection, without any supernatural intervention, then we have a real conflict on our hands. There cannot both be creation by God and no creation by any God. One of the parents supporting the school board is described as "a mother of five who believes that God created the earth and its creatures."

But how could any scientific test establish the existence of God, or when and how God may have intervened? C.S. Lewis pointed out that when a prayer is answered, one can always look at the sequence of natural events that are necessarily part of the answer, and say "See, it would have happened anyway." Thus, an answered prayer can be logical proof that prayer doesn't work. The same is true of the natural events flowing from the creation of life. The data is the same, whether God intervened or not. God does not leave footprints in the fossil record. Science can only establish what is in the fossil record. Anyone who claims, in the name of science, to have proof that God was not involved is an ignorant, pompous, educated fool. Perhaps what appears to human eyes as "mutations" was actually planned and inspired by God.

Looking at the policy the school board adopted, it seems silly to blow this case up into a review of the legitimacy of any theory at all. The school board did not decide to teach some church's version of Biblical creationism as science. (Doing so was ruled out by the Supreme Court in 1987, as establishment of a religious belief by use of government authority). Nor did it introduce the controversial "Intelligent Design" curriculum into the science classroom. The school board merely required that a statement be presented to ninth-grade biology students, which said that there is a controversy over evolution, that intelligent design is a competing theory, and students who want to learn more could look up the textbook "Of Pandas and People: the Central Question of Biological Origins" in the school library. An advocacy group called the Foundation for Thought and Ethics publishes the book.

It is beyond dispute that there is controversy over evolution. There may not be one shred of truth to the criticisms of evolutionary biology, but as long as a large minority, perhaps up to one half of the American people, question, denounce, or express reservations about the theory, there IS a controversy. Allowing students to go look up an alternative viewpoint, if they choose, is hardly requiring science teachers to present it as legitimate. Intelligent Design is not really a competing theory at all. It is a brief commentary on the existing data. It does not require a whole separate text book to explain, a 2-page mimeographed sheet would do just fine. In fact, a small but growing number of Christians denounce "Intelligent Design" as blasphemous nonsense. (See the link at left, Insulting God with our Intelligent Designs). But this hardly seems to be the local school board policy that should make or break the idea. This case doesn't make sense as a test of whether it is sound science or not. The school board never said that it is.

To anyone concerned with our constitutional system of government, it is difficult to ask courts to second-guess the decisions of a local school board. The constitution assigns some powers to the federal government, reserves others to the states. States in turn assign some powers to local school districts. Since the Civil War, and the adoption of the Fourteenth Amendment, the constitution also reserves certain rights to the people that neither state nor federal governments may over-ride. When the constitution assigns authority, it does not, and can not, assume that whoever exercises this authority will always make the right choice. Everyone makes mistakes. The constitution tries to assign who should have the authority to act. It tries to define how those with power can be held accountable.

An unconstitutional act means that some level of government has stepped outside of its authority, has claimed a power that it does not rightly have. It is not enough that someone thinks a decision by the school board was a bad idea. Is there any consistent legal principle that can give a school board authority to define curriculum, then intervene in the details to say "No, that was the wrong choice to make, you should have done this instead?" Today it may be an injunction against so-called "Intelligent Design" curriculum. Tomorrow, it may be an injunction by another judge in a different district against teaching the theory of evolution at all. True, teaching religion in public schools does exceed the authority of any government body. But acknowledging that a large part of the American people believe in and worship God does not. (The odd thing about intelligent design programs is that they never mention God. Maybe the intelligent designer is an intergalactic supercomputer?)

However the court rules, the media and the high-powered advocacy groups on each side will probably spin the ruling in ways that are not justified by the facts or the law. If the judge rules that the school board is within its lawful authority to make this decision, the headlines will read "Federal Judge Supports Intelligent Design, Downplays Evolution." In truth, the judge could personally believe that the school board is absolutely wrong, and still rule that they are within their authority. If the judge rules that the school board has exceeded its lawful authority, the headlines will read "Federal Court Declares Darwin is Good Science." The judge could be a firm believer in so-called "creation science" and still rule that the board had no legal authority to adopt the policy at issue.

A better school board policy might be to develop an introduction to natural science classes, including astronomy, geology, and biology, along this line: "The facts taught in this class are based on human observations and measurements, using advanced technology and mathematics, to study the material world. The theories taught in this class are based on that data. None of the information taught in this class does, or can, provide any basis to "prove" or to "disprove" any religious belief as to creation or intervention in human affairs by any god, or the accuracy of any divine revelation. That is simply beyond the capacity of any science. Students may or may not personally agree with some of the material taught, but should be familiar with the theories commonly accepted in science, and how they were developed. Material on some alternative perspectives is available in the library."

Most science teachers would deny that a practitioner of Vudun has the power to inflict pain on a person by sticking needles into a doll. But there is recent evidence that a medically documented process does exist for creating zombies. As for the more conventional Christian practice of laying hands on a sick person, an honest biology teacher would acknowledge that we don't scientifically know how effective it is, or why, but when a known medical cure is available, that cure should be part of a prudent treatment process.

Faith healers have been known to kill patients by "ending the pain" of appendicitis through prayer, only to see the patient drop dead because the appendix has burst.But that doesn't mean that faith and prayer have never healed. A recent article in National Geographic described a child being treated for leukemia receiving a transfusion of cord blood cells, and mentioned that his parents had been praying for hours. That is a good combination: all that science allows us to do for ourselves, and all that God has provided us to seek divine intervention. It worked well too: doctors never saw this treatment work so well and so quickly. It's time to stop posing science and faith against each other, or demanding that either one should be twisted to accommodate the other.

When Life Begins...

...or truly, when life began!

The common phrase "life begins at conception" only skims the surface. Life began long before conception.

Every ovum and sperm are alive. They are living cells before they unite to form a zygote. Those that do not find a cell from the opposite gender to unite with, are alive until they die the death of one-celled life. Tragically, they cannot reproduce by fission and live indefinitely. But the sperm cells at least have the self-consciousness and mobility of many protozoans. Fortunately, they do not possess the consciousness, the fear of death, the thrill of the chase, portrayed in Woody Allen's movie. Sperm cells, while they are alive, do not appear to possess souls. They simply do what they are programmed to do.

The truth is, if we wish to define "when life begins" we must go all the way back to the beginning. Because there is a continuity of life from every living human being, back to the zygote from which they grew, to the ovum and sperm which united to form that zygote, to the ovaries of the mother and testicles of the father from which the ovum and sperm cell came, and so on through every generation.

Life began either with the first humans, or with the first prokaryotic cells in the warm waters of a primordial sea. That depends on whether the creation of humans, adam, male and female, when God called their name adam, was a distinct act of physical creation, or was the spiritual act of breathing into the nostrils of an existing primate, so that "man became a living soul." But that debate need not be settled here. Whether humans were created 6000 years ago or 50,000, as a distinct act or by divine breath imparted to an existing primate, or as the random chance of a morally neutral universe, it remains true that our life began long before any individual conception.

The real question then is when a distinct and separate individual human life exists, apart from and independent of his or her parents. Human society, including Judeo-Christian society, has never been consistent about the answer to that question.

In order to create a new human being, millions of sperm cells must die, competing with each other to be the one in a million that actually fertilizes an ovum. In order for pregnancy to be possible, twelve ova a year must die, every year of each woman's life, between puberty and menopause. These are not mere strings of coded chemicals, they are living cells. Only when a woman becomes and remains pregnant is this process of ova dying suspended temporarily.

Perhaps we should establish a process of adoption for the sperm that otherwise tragically die, or the ova literally flushed down the toilet. Because the natural, divinely-ordained, process for producing a new generation of live individuals, has always involved the sacrifice of millions of living cells.

But let's examine the other end of the maturation process. There have been many human societies that entrusted parents, or the eldest patriarch of a family, with literal authority of life and death over their offspring or juniors. Kill a member of another family, you are a murderer – that family has the right to kill you, or any member of your family they can get their hands on. Kill your own children for disobedience, that is your business. That was the law of Rome and Babylon, and traces of it can be found in the Old Testament, as well as in the Q'uran. The ancient Greeks practiced infanticide of those babies considered too weak to live long anyway.

There is a certain logic to such customs. That is not the same as morality, but there is logic. Infants cannot survive without the care of their parents, so are they truly independent? If the parents abandon them, what rights do they have? Parents today in America are still known to say to their teen-age offspring "I brought you into the world and I can take you out of it." A good number of devout, right-to-life, Christian parents say that, when they are angry and frustrated enough. Of course, they don't really mean it. And we do not, as a matter of law, recognize the right of any parent to act on that expression.

There is no direct Biblical reference for the proposition that "life begins at conception." God instructed the Hebrews in Leviticus that "the life of the flesh is in the blood." This suggests that a distinct life comes into being when there is an independent circulatory system in the fetus, and not before. Leviticus 17 does not discuss fetal viability, it prohibits those in the original Covenant from consuming the blood of animals they have killed for food. God also says "I have given it to you on the altar to ransom your lives, for it is the blood that ransoms in exchange for life."

Leviticus 22:27 requires that a bull or goat offered as a sacrifice must be "seven days under its mother" after birth – because the newborn was not regarded as a viable living creature until it had lived eight days outside the womb. Numbers 3:15 counts "every male from a month old and up" to number the Levites, again, because a high rate of child mortality meant that until a baby survived a month, it was not counted. Of course none of this means that a two week old baby may be wantonly destroyed. None of this would be accepted by an Orthodox Jewish rabbi as condoning abortion, unless the mother's life were in danger. But it raises questions whether we can define by the action of the criminal law that "life begins at conception."

It is beyond dispute in the United States of America that once a baby has a physical, biological existence outside of its mother, it is a distinct and independent life. The fact that it cannot live without its mother nursing it, or mother and father feeding it with a bottle, that it cannot change its own diapers, that it cannot wash itself or seek medical treatment for itself, that it cannot clothe itself, that it cannot earn its own living, does not give the parents any right to destroy it. Most states do have laws allowing the parents of a new baby, if they are unprepared to assume responsibility as parents, to abandon it in a warm, safe place where it will be found and nurtured by others. That is called a safe haven law. But the baby is not merely alive, it is a distinct individual life.

It is also beyond dispute that a man and woman may condemn millions of sperm cells to certain death, without making any effort to save them or find them each an ovum to fertilize. It is beyond dispute that a woman may allow her menstrual cycle to proceed, without making any effort to fertilize the individual ovum in her fallopian tubes. Indeed, most churches teach that until she is married, she must allow these monthly ova to die without fertilization. Our public debates concern the specific form of life that exists after a living sperm cell and a living ovum have united to form a living zygote. Is this living cell part of the woman in whom it lives, and outside of whom it cannot exist? Or is it an independent individual?

Or maybe the zygote is not even inside a womb. Suppose medical technology advances to the point that doctors can scrape a few hundred skin cells off the arm of a patient with pancreatic cancer. Suppose they can take those cells, inject the patient's DNA into an ovum empty of its original DNA. Suppose they could grow that cell into a blastocyst, tease the stem cells to grow into a new, healthy pancreas, which is a perfect match for the patient. An inoperative cancer, carrying a life expectancy of one week to six months, becomes operable, with an open-ended life expectancy. There will be no problems with rejection by the patient's immune system.

Is the zygote an independent life, entitled morally and legally to grow into a new individual human being? Or is it part of the life of the patient whose DNA it matches, which may be teased into becoming a new pancreas? We know it has life. Life began at the first moment when God said "Let the waters bring forth the living thing that hath life." A new pancreas would have life. If the zygote did grow to the point that it could survive as an independent being, outside of any natural or artificial womb, then it would be a distinct individual. But then it would be a clone. There is overwhelming sentiment in our nation that human beings should not be cloned.

If someone does illegally clone a human being, those responsible should be placed in custody where they cannot repeat their crime. But what if there is already a fully developed cloned baby? Should that baby be destroyed as the fruit of a horrible crime? Or is it an independent being, entitled to protection and survival as an individual life? It is not the clone's fault that those who cloned it violated the law. And the clone will not be an adult duplicate of the person who was cloned either. It will be a baby with the same DNA, facing the beginning of its own life experiences. A younger identical twin. Who would be responsible to raise the clone? Maybe it would be better for this zygote to become a pancreas.

There are no easy answers to these questions. We should be careful not to let power-hungry manipulators reduce us to cheap slogans. Life began long before any individual conception. When does human life have a soul? When has a self-conscious individual entered the world? For centuries during the middle ages, Roman Catholic teaching said that the soul entered the fetus forty days after conception. When we know so little, it is a bad idea to pass too many laws. Whatever we do, we are likely to be wrong. That is good cause to let each individual try to do the right thing, and be responsible to God for their own choices.