[MOJ readers may find this interesting.]
April 4, 2007
A moment with...
Walter F.
Murphy
Walter F. Murphy, the McCormick Professor of Jurisprudence,
emeritus, returned to Princeton in early March for a symposium on his new book,
Constitutional Democracy: Creating and Maintaining a Just Political Order,
which explores the lessons of constitution-making from ancient Greece to today.
The book is being hailed as a masterwork capping a distinguished career. Murphy
spoke with PAW contributor Merrell Noden ’78 after the conference.
You said that you are on a terrorist watch list and so were stopped by
airport security on the way to this event at Princeton.
Why?
Yes. I’m a retired colonel in the Marine Corps [awarded the Purple Heart and
Distinguished Service Cross], which would indicate that I’m probably not a
terrorist. But I did speak against Bush [atPrincetonlast September]. That’s the only reason I can give.
You argue in your book that the Constitution is open-ended about who
should interpret it.
It isn’t judges alone who should interpret the Constitution, but presidents
and members of Congress ... and also the electorate. By 1936 the Supreme Court
had declared unconstitutional almost every important part of Franklin D.
Roosevelt’s New Deal. He ran for re-election and he carried 46 states. That was
just a stinging [electoral] rebuke to the Court.
Speaking of presidents, George W. Bush has twice sworn to “preserve,
protect, and defend” the Constitution. How’s he doing?
Poorly. He has said, “I am the decider” and ignored congressional statutes.
Recently, he said he would go to the courts for warrants to wiretap. But for
four-plus years he said he wouldn’t, and his excuse was so lame as to be
totally unbelievable. He said it would take too long. Well, there’s a special
court set up that meets in secret, designed to make sure that what Richard
Nixon did would never happen again. While I’m not an originalist, I think
you’ve got to take a lot of what people like Madison and Hamilton said very seriously.
And in the Federalist Papers, Madison said if all power is concentrated in the hands of a single person, a single
office, or a single branch of government, you’ve got the definition of tyranny.
I have chided some of my originalist friends, who say, look to an
originalist understanding. The objective these [framers] apparently shared was
a determination to prevent the recurrence of what the British called “writs of
assistance” — where the executive could search and seize without a judicial
warrant. It’s the classic thing that the Fourth Amendment was designed to
prevent! But I have not heard one single originalist raise that objection against
Bush’s policies. They raised it against Johnson, against the Supreme Court. Not
against Bush.
What sparked your interest in the Constitution?
Mine was generated by an undergraduate course in constitutional law, which I
found fascinating. I went off to graduate school at [the University of] Chicago without intending to study it. But a number of things happened. I fell in with
a marvelous professor. And also it turned out that some school desegregation
cases were coming up in Charleston [S.C., where Murphy grew up], and some voting-rights cases, too. One of my
neighbors in Charleston was a
federal judge who suddenly had a spate of cases before him. He decided for the
blacks and was ostracized from the local community. Somebody fired a shot
through his window at night.
Were you aware of all that ugliness when you were growing up?
Being a white Irish Catholic in the deep South, in the Bible Belt, I felt a
lot of discrimination. When Kennedy was assassinated, my mother, who was still
teaching high school in South Carolina,
said she received a note from the principal on that Friday afternoon that said,
“John F. Kennedy has been assassinated. Please announce this to your students,
and please instruct them that they shall not applaud.”
I was denied admission to Princeton as an
undergraduate. I was first in my class at a Catholic high school and won a
National Merit Scholarship. I got a letter from the admissions committee
saying, “We think you’d be happier at a Catholic school.”
You ultimately did go to a Catholic university, to Notre Dame, and
you’ve written three novels in which religion plays a significant role. Are you
a religious person?
I’m a Catholic of sorts. I like to think I’m a Catholic, but I’m sure the
pope would look on me as a heretic. [Supreme Court Justice Antonin] Nino
Scalia, who’s an old friend, very intelligent with a great sense of humor — we
sometimes can go 10 minutes without shaking fingers at each other! — claims I’m
a “cafeteria Catholic,” meaning I pick and choose. And he’s right. He says my
attitude on birth control is wrong. But on the death penalty, he doesn’t take
the Catholic position. He’s cafeteria, too. We just have different selections.
Wednesday, April 18, 2007
Over at Balkinization, there are two commentaries on today's PBA ruling (Gonzales v. Carhart) that you should read. Jack Balkin challenges the ruling's connection to the state's interest in protecting human life. (This relates directly to John O'Callaghan's earlier comment.) An excerpt:
The Court emphasizes Casey's holding that states have legitimate interests in protecting potential life throughout the pregnancy. The Court uses this interest to justify the ban on intact D&E. But there is a strange lack of fit between the interest asserted and the means used to further it. Banning intact D&E does not save a single fetus' life. Rather, it requires doctors to use standard (non-intact) forms of D&E or, as the Court at one point suggests, to inject the fetus with a chemical that kills it and then to remove the fetus intact. The actual interest the Court is asserting is not the interest in protecting potential life but rather an interest in not having the life of fetuses ended in ways that the legislature regards as particularly gruesome. That might be a legitimate interest (pace Lawrence v. Texas), but it is not the interest in potential life recognized in Casey.
Michael Stokes Paulsen criticizes the "pernicious" doctrine of stare decisis, observing:
The true ground for the decision in Gonzales v. Carhart is that Stenberg v. Carhart was crushingly and horribly wrong, as a matter of first principles of constitutional understanding. But whether one agrees with this view or not, that is the issue. Is there anyone -- anyone on the planet -- who thinks that Gonzales v. Carhart and Stenberg v. Carhart were both right? Is not this an observation on which liberals and conservatives can agree?
Christianity Today defends incrementalism on abortion by reference to today's decision and the recent episode in South Dakota, where after the proposed abortion ban with only a "life of the mother" exception failed by referendum,
pro-life leaders reintroduced the ban, this time [adding rape and incest] exceptions. Though the state House approved it 45-25, the measure died in a Senate committee. Even the head of South Dakota Right to Life, a state senator, declined to support the new ban with the three exceptions.
. . . The public, apparently spooked by the more comprehensive measure, turned decidedly chilly toward bans of any kind. Ed Olson, a state senator who said last year he would vote for a less restrictive ban, eventually declined to support even the ban with exceptions.
Conclusion: "[A]n incremental strategy gives us the best way to get there [to overturning Roe] while discouraging abortions right now. Wednesday's Supreme Court ruling confirms the prudence and promise of this tactic."
Tom
Notre Dame philosophy prof John O'Callaghan responds to my post on today's partial-birth abortion ruling by the Supreme Court. It is long, but well worth reading in its entirety:
It is at least a bit of good news against a background of tragic events this Easter season. I haven’t read the decision, but I am intrigued by the language of “human life” in the passage that you cite. It would suggest that the court recognizes that the unborn child is, as a matter of fact, human, perhaps even a human life, and even perhaps a human being (gasp). (Those who believe in what I like to call a “This Magic Moment” Metaphysics of Personalization might, no doubt, still argue that it ain’t a person, but we’ll leave that aside.)
But then it would seem that in the language of “values,” “value,” and “interests,” that the Supreme Court chooses to express its opinions in, your perhaps rhetorical question at the end of your entry has a trivial answer, but a trivial answer that goes well beyond the rhetorical question. If it is a question of weighing values depending upon the varying interests of the parties involved, then any decision to kill a human life that is not rash or on the spot, but a result of reasoned deliberation and choice about those interests and values, would seem to be ipso facto a “devaluing” of the human life that is killed at any stage. Socially we are just asking, “what price are we willing to pay for that particular devaluation.” The question of the particular procedure employed to kill the human life at some stage would seem to be immaterial to the case. In the language of “values” and “interests” doesn’t exercise of the death penalty by lethal injection ipso facto devalue the life of the executed, regardless of the sanitized procedure that makes it look like the executed is simply going to sleep, precisely because we are weighing “values” against one another, affirming some and “devaluing” others? And might that move towards the sanitary be itself a social anesthetic we apply to ourselves to deaden the moral pain of killing that human life? It seems to me that a social move toward more “humane” procedures may have very little to do with lessening the suffering of the one to whom they are applied, and much more to do with anesthetizing our moral and social feelings of pain in carrying out our decisions.
No doubt we can all cheer the result today; but the reasoning of many against PBA, focusing upon the gruesome nature of the procedure, might be part of the broad social problem we face. Any invasive medical procedure will typically appear gruesome to most people. Think of open heart surgery, or colectomy. But we don’t, and we shouldn’t take our sense of disgust at the gruesomeness of the procedures to be constitutive of their moral or legal status. If we did, our moral and legal reasoning would express the kind of emotivism that Alasdair MacIntryre diagnosed in After Virtue as the dominant paradigm of moral and social reasoning characteristic of advanced capitalist society, where values and interests replace goods. The great medieval historian of philosophy Etienne Gilson, echoing Nietzsche, wrote somewhere that “values are what goods become in a world in which God is dead.” And insofar as we adopt the language of “values” and emotivist type reasoning, even if only provisionally, in order to win a tactical victory, we run the risk of contributing to the larger loss.
We need to keep our eyes on the prize. The gruesomeness of the particular procedure, insofar as it bears the moral characteristics of being bad or evil, does so because it participates in the evil of deliberately destroying the good and innocent human life involved. If the medical procedure were carried out on an already deceased unborn child, as no doubt it may be if the child has tragically but naturally died in utero at that stage of development, presumably we would all recognize the appropriateness of the procedure. We think the procedure is morally abhorrent because it destroys a good, a human life. Does the Court’s decision today allow the doctor to “humanely” give the unborn child a lethal injection of some pain killer, and then, upon the judgment that it is now deceased, allow for the very same procedure to be performed upon the now dead child? Sadly, if it does, we have not advanced very far today. Presumably a less invasive and medically gruesome procedure shares just as much in the evil of killing an innocent human life as PBA does, if our moral reasoning is more than emotivist. And the reason we haven’t advanced very far today is that we haven’t moved our society toward recognizing in its moral and legal reasoning, not the devaluing of some human life, but the destruction of the inestimable good of the human life that is the child in the womb, regardless of the twitterings of the Magic Moment Metaphysicians. It is one thing to devalue an object, and quite another to destroy a good. The danger we face is that, in focusing upon the gruesomeness of the procedure, those we hope to convince that human life in the womb ought to be protected will think that we should be satisfied with this decision, and resent any efforts to push ahead.
Still there is hope today. God has given all of us the gift of reason. Justice Kennedy’s decision at least recognizes that the being killed is a human life. And with such a recognition in hand, perhaps we can begin to move our fellow citizens to reasonably consider what it is about this kind of procedure that rightly moves them to judge it to be morally abhorrent, rather than find it simply a matter of their own distaste for blood and gore.
Note the picture that accompanies the CNN website's story about the PBA decision. When I copied it to paste here, I noticed the gif title was "Story-SCOTUS-stormy."
Subtle, no?
UPDATE: MOJ reader Emily Friedman noted the sharply contrasting picture of the Supreme Court accompanying CCN's recent story about the decision in Massachusetts v. EPA:
Perhaps the sunny blue sky is intended to illustrate the effects of global warming?
Based on a quick read of the majority opinion: The Supreme Court's decision upholding the federal ban on partial-birth abortion seems a narrow, but important one. Justice Kennedy's opinion for the majority does not change the Court's basic position with respect to abortion, but it does make clear that the Court's precedents permit reasonable, careful regulations of abortion in order to promote the state's valid interest in protecting what Justice Kennedy called the government's '"interest in respect for life." The Justices distinguished, but did not overrule, their 2000 decision, Stenberg v. Carhart, which struck down Nebraska's differently worded partial-birth-abortion ban.
My take: Unlike the earlier decision, today's ruling respects the views of the overwhelming number of Americans -- pro-life and pro-choice alike -- who believe that partial-birth-abortion is a procedure that a decent and humane society need not permit. In this sense, the decision is consistent with the view that federal judges should not take it on themselves to remove controversial debates from the arena of democracy.
As Justice Ginsburg observed, it is not clear that the PBA ban actually saves the lives of any unborn children. And, as she wrote, it should not be imagined that other abortion procedures are not also gruesome. Is it troubling, then, that such a narrow decision will be hailed (or lamented) as a "huge win" for the pro-life side of the debate? Yes. Still, it is a step in the right direction.
The Court, in a 5-4 ruling, has upheld the partial-birth abortion ban. Justice Kennedy wrote the majority opinion. The Court did not overrule Stenberg, but found that the federal statute at issue here is narrower than the Nebraska statute. The Court also ruled that these facial challenges to the statute (as opposed to as-applied challenges) should never have been heard. An excerpt:
[The State, from the] inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, [and this] cannot be set at naught by interpreting Casey's requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.
A welcome ruling from Justice Kennedy, to be sure. Not to say that there isn't still a whiff of his "sweet mystery of life" reluctance to state obvious truths as truths. Consider this:"No one would dispute that, for many, D&E [dilation and evacuation] is a procedure itself laden with the power to devalue human life." Now I know that many people disagree over whether the mother's interests should outweigh the state's concerns with the D&E procedure's "devaluing" of human life, but is it really beyond the pale to recognize, as a matter of fact, that the procedure is "laden with the power to devalue human life?"
