The German Muhajid centers on Rachel (short for Rachid Helmut) and his younger brother Malrich (Malek Ulrich), both born in Algeria to an Algerian mother and German father. They are raised in Algeria until they are seven and eight, respectively; then their parents send them to France where an aunt and uncle take them in.

Sansal  brings the readers through a detailed account of what Rachel discovered as Malrich reads Rachel’s diary, and through Malrich’s response to this in Malrich’s diary.  The passages alternate back and forth between the two diaries.  What the brothers learn is horror beyond words, though Sansal brilliantly uses words to convey what he can. The book’s translator into English, Frank Wynne, skillfully conveys the sense and thrust of Sansal’s novel across the language barrier.

It opens with Malrich recounting Rachel’s suicide, after which Malrich reads his brother’s diary. In it he learns that their father had been an SS Officer in Nazi Germany. And not just that; their father studied chemistry in Frankfurt, where the Nazis conducted human extermination chemical tests, and then had assignments under Nazi rule at Auschwitz and beyond.

After Rachel discovers his father’s Nazi military records in the home of his dead parents in Algeria, Rachel becomes obsessed with trying to find out what happened. He researches, travels to archives and visits concentration camps. He studies, he learns. Rachel admits he had previously not known what happened in Germany during World War II; he seeks to rectify his ignorance, and grapple with his father’s life-long, continued support for the Nazi movement. Malrich learns of this only upon discovering Rachel’s diary, and then he too confronts his own ignorance about recent history, and about his own father.

Before his brother’s suicide, Malrich’s life held some memories of Algeria, but otherwise it was mostly limited to his ghetto of immigrants in France, “with the dregs of the estate.”  He felt unwelcome in France, and after getting expelled from school in his first year of high school, he floated around from odd job to odd job.

During this time, Malrich also floated into the local mosque, where he was initially captivated by the cosmic, or at least rhetorical, grandeur of the Islamists who had been expelled from Algeria and were now in France. For Malrich, however, cracks develop in this Islamist ideology that initially gripped him. He eventually turns his back on the Islamists, thinking he is done with them.

But then Malrich learns what can happen when a hate-based ideology claiming transcendent self-justification sets roots in a population. Upon initially reading Rachel’s diary, Malrich falls into shock. Some days later, however, he comes to the realization:

Where my father and Rachel had failed, I had to try to survive. I felt like this was all too much for me. But I also felt, and I don’t know why, I had to tell the world. I knew it was all ancient history, but still, life doesn’t change and what happened to us could happen again.

Malrich does not think it is sufficient just to proclaim his personal rejection of fanaticism. Instead, he takes action where he can, starting in his own neighborhood, against the creeping reach of the increasingly totalitarian Islamists. He leaves what he calls “dumb apathy” behind.

Malrich begins by trying to awaken his immediate circle of friends to the depth of threat growing right in their own neighborhood where the Islamists are taking over. They discuss launching a “counter-jihad” and other options. He even writes to public officials, bluntly explaining, “Jihadists have taken over our estate and are making our lives hell.” He signs the letter, “A furious citizen notionally under your jurisdiction but forced to live under Islamic law.” But still, even though he knows he needs to do something, he’s not sure what. He finds himself in “a state of permanent panic somewhere between madness, anger, and the urge to rush half way across the world and drown” himself.

Sansal uses crass, blunt language for Malrich’s voice in the novel. Some readers may find this jarring at first, but it proves to be a strength of the novel. Through Malrich’s first-person narrative, Sansal helps the reader see what the discovery of human horror and the awakening of individual conscience look like through the eyes of a male teenager.

The German Mujahid’s quality and urgent relevance also remind us of the need for funding and organizational dedication to make works like this available in translations and multi-media formatting, e.g. audio-books, in languages such as Arabic. The tremendously important role the U.S. government played in fostering movement of strategically important ideas through translation during the Cold War has today nearly evaporated and shows no serious signs of revival, even nine years after 9/11. The need for large-scale re-engagement of such efforts may need to come from the private sector.

Toward the end of the novel, Malrich quotes his aunt’s view that “the difference between yesterday and tomorrow is today, because we don’t know how it will end.” Even when figuring out what action to take is hard, Malrich has at least recognized that today is where opportunity lies, and that today what he as an individual chooses to do, and whether or not he chooses to do anything, matters.


Jennifer S. Bryson is the director of the Witherspoon Institute’s Islam and Civil Society Project.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Their repeated exclamation “not that there’s anything wrong with that!”—invariably uttered with far less passion than their denials—is a socially conditioned response. Somewhere they have learned that it is unacceptable to cast aspersions on homosexuality, and that the politically correct response is to say (as Jerry does at one point, albeit rather too excitedly), “People’s personal sexual preferences are nobody’s business but their own!” Jerry and George struggle to suppress what they really think with what they have been taught to think is “enlightened opinion.” Call it the Seinfeld Effect.

Seventeen years later, the advocates of same-sex marriage are making “people’s personal sexual preferences” everybody’s business, and are counting on the Seinfeld Effect to suppress what most Americans really think about same-sex marriage. They are waging their struggle, after all, not just in courts of law but also in the court of public opinion, and the advocates’ success with certain judges will not be secure unless most Americans are with them. So how are they doing?

A CNN/Gallup poll released on August 11 found that 52% of respondents supported and only 46% opposed same-sex marriage—a result widely trumpeted as the first time a majority expressed this view. But in an important finding, a North Carolina firm called Public Policy Polling discovered that its method of automated polling or “robo-calls,” in which respondents interact on their phone with a computer-controlled interview system rather than a human interviewer, yields significantly higher numbers of Americans who oppose same-sex marriage.

The robo-call technique has been pioneered by pollster Scott Rasmussen, who has racked up an impressive record of accuracy in the highly competitive business of predicting election outcomes. Using this same system, Public Policy Polling—whose head actually favors gay marriage—found in a poll released on August 13 that a mere 33% of respondents favored same-sex marriage, while a full 57% opposed it. (This is a result the firm’s head deplored, but defended as accurate nonetheless.)

What’s going on here? If we take both polls as accurate, each in its own way, then we can say that one-tenth (or more) of Americans oppose same-sex marriage but are extremely hesitant to say so to another person, even a stranger conducting a telephone survey. Yet they will express their disapproval in the complete anonymity of a “robo-call” survey—or, from what we have seen so far, the voting booth.

This finding shows that while support for conjugal marriage is widespread, it is also fragile and falling victim to a phenomenon known among public opinion researchers as the “spiral of silence.” The late German political scientist Elisabeth Noelle-Neumann coined this phrase, and used it as the title of a book 30 years ago. W. Phillips Davison summarized her theory as follows:

Most people are able to estimate (although not always correctly) what majority opinion is on most issues, or whether a particular opinion on an issue is gaining or losing ground. Those who see their own views as becoming more widely accepted tend to voice these views in public, and with increasing confidence. Those whose opinions seem to be losing ground are reluctant to speak out. The silence of the “losers,” in turn, increases the confidence of the other side. Finally, only a hard core is willing to defend the minority opinion in public.

One need not believe in what Noelle-Neumann called a “quasi-statistical” sixth sense to see  her point. The conformity of crowd behavior has been observed almost as long as there have been crowds, and, for most people, the smaller and weaker one feels one’s own position to be, the harder it is to maintain it.

Noelle-Neumann’s “spiral of silence” theory doesn’t treat only the increasing dominance of opinion that already commands a majority, but can also account for any opinion that is “gaining ground.” But how does an opinion gain ground, if it begins as the minority view? On this she had less to say. But others who have studied the mass media can help us out here. Communication scholar Jim Kuypers, for instance, has written of the rhetorical phenomenon known as “framing”:

Framing is a process whereby communicators, consciously or unconsciously, act to construct a point of view that encourages the facts of a given situation to be interpreted by others in a particular manner. Frames operate in four key ways: they define problems, diagnose causes, make moral judgments, and suggest remedies. Frames are often found within a narrative account of an issue or event, and are generally the central organizing idea.

There can be little doubt that the dominant institutions in the American news media—the leading newspapers, magazines, and television network news divisions—have been at work for years in framing the question of same-sex marriage in ways that advantage its advocates. In the dominant media “frame,” for instance, it is always the opponents (and never the supporters) of same-sex marriage who are described as employing the controversy as a “wedge issue,” the implicit moral judgment being that those who push such controversies to the forefront are being divisive and working to destroy the harmony of the American community by pitting neighbor against neighbor. The advocates of same-sex marriage are never described in similarly loaded language, although the radicalism of the proposition that men can marry men and women can marry women is self-evident.

The danger for traditional marriage’s defenders, then, is that media framing of an issue can, over time, push many Americans into a “spiral of silence,” in which they will first experience the Seinfeld Effect of publicly suppressing their opinion that there is “something wrong” with same-sex marriage, then prevaricate even with strangers surveying them on the phone, and finally acquiesce, however reluctantly, in a fait accompli foisted on them as a “constitutional right” by activist judges.

On the marriage issue, there will no doubt always be a sizable “hard core” of defenders of conjugal marriage, particularly though not exclusively among the most orthodox religious believers. But there is a “soft middle” in American public opinion on this question, comprised of those who oppose same-sex marriage but fear that their views are losing ground and are hopelessly retrograde in a changing world. What steps can be taken to stiffen their resistance? Is some form of “inoculation” possible?

Inoculation is more than possible. Noelle-Neumann’s spiral of silence is dependent on both the experience of isolation and the fear of isolation. “My view is different from everyone else’s around me” is the opinion-killer for many people, even when the perception is a false one. Defenders of the institution of marriage need to know that they stand, not merely with more like-minded contemporaries than they suspect, but with countless generations of thoughtful people—husbands and wives, fathers and mothers, philosophers and lawgivers, prophets and priests—who believed as they believe.

They also need to know that, however few or many they are in their immediate social surroundings, they have the best arguments at their disposal for the preservation of that tradition: That marriage would not exist were it not for the fact that men and women have children, and it is good that they have them together and rear them together. That on the whole it is best for children to be raised, wherever possible, by their natural mothers and fathers in intact, lifelong familial relationships. That marriage’s nature is not infinitely malleable in response to our will, but is the shaper of our relations as much or more than it is shaped by them. That the reshaping of marriage to “make room” for same-sex couples leaves it vulnerable to every other claimant who wants similar space in the institution, including the polyamorous—and so the reshaping is, in truth, the effectual abolition of marriage. That the defenders of tradition should suffer no embarrassment if their moral views about the law of marriage find confirmation in the tenets of their religious faith, however much they are vilified as irrational bigots by a federal judge.

To these powerful arguments the advocates of radical change in the institution of marriage can oppose nothing but an appeal to sentiment, and the force of the Seinfeld Effect. They expect their fellow Americans to shrug and say, “so they want to get married—not that there’s anything wrong with that.” We must offer instead a firm but loving refusal to shrug at this revolution in our political and cultural life.


Matthew J. Franck is director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute. Gwen Brown is professor emerita of communication at Radford University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Obama’s policy is bad ethics because it creates further incentives for the destruction of human beings in their very earliest stage of life. When President Bush became the first president ever to fund embryonic stem-cell research, he set a clear moral line: the government would not be complicit in encouraging additional embryo destruction. His executive order allowed funding on embryonic stem-cell lines derived from embryos that had already been destroyed, but excluded funding of research using stem cells from embryos destroyed after August 9, 2001 (the date of his announced policy).

Some pro-lifers thought that even this policy fell short of full respect for human life, but Bush was attempting to make the best of a bad situation: for embryos that had already been destroyed, funds would be made available for research that tried to salvage some value out of their destruction. But Bush resolutely refused (twice exercising the veto) to incentivize future embryo destruction by funding it with tax dollars. His reasoning was clear: Science itself tells us that a human embryo is a whole living member of the species homo sapiens, a human being at the very beginning of life. And sound principles of political justice tell us that all human beings deserve the protection of the law. While political will was lacking for legal protections, Bush sought at least to keep the government—and tax-paying citizens—free from complicity in embryo killing. Obama’s policy is bad ethics precisely because it implicates the American taxpayer in an unjust practice.

Obama’s policy is bad science because embryo destruction is no longer necessary for the types of stem cells doctors seek. First, as the L.A. Times noted earlier this month, adult stem cells are already being used to treat patients suffering from seventy-three different ailments. The count for embryonic stem cells is zero. In fact, therapies from embryonic stem cells haven’t even cleared stage-one clinical trials. Second, and even more noteworthy, scientists can now create stem cells with all the same properties as those derived from embryos without killing—or even using—embryos at all. (When this scientific breakthrough was first announced in November 2007, I wrote an article for The Weekly Standard entitled “The End of the Stem-Cell Wars.” Alas, a better title would have been, “What Should Be the End of the Stem-Cell Wars.”) In some respects, these induced pluripotent stem cells (iPSCs) appear to be medically superior to embryonic stem cells: cheaper to produce, easier to work with, and, most importantly, patient-specific—a crucial factor for any future medicinal use.

As anyone familiar with organ transplants knows, immune rejection is a major hurdle to any form of regenerative medicine. Induced pluripotent stem cells clear this hurdle because they can be created from a patient’s own skin cells to have his exact DNA sequence. For the same to be true of embryonic stem cells, they would have to be created from an embryo produced by human cloning—an unethical, unsafe, and so far unsuccessful procedure. In creating economic incentives for research that shows little or no medical promise (especially compared to the ethical alternatives), Obama’s policy is bad science.

Obama’s policy is bad politics because it needlessly perpetuates a stem-cell war where an easy peace is available. While public opinion on stem cells is notoriously difficult to gauge, after the November 2007 breakthrough only the staunchest of ideologues were clamoring for public funding of embryo destruction. Certainly by 2009, the issue had lost most of its political salience, entirely dropping from the front pages of our newspapers. Once an ethically legitimate alternative to embryonic stem-cell research was developed, the public and the media lost interest.

If Obama really wanted to resolve one front of the culture wars and show respect for pro-lifers, as he claimed, he would have refused to make citizens complicit in embryo killing by simply continuing the Bush policies. Instead, beholden to the radical fringe of his party, he chose to make a show of repudiating the Bush years. Not only was this needlessly harmful to our political culture; it may also have harmed Obama’s political self-interest: he certainly didn’t gain himself new supporters by wasting tax dollars on unethical and unnecessary research. In both of these ways, Obama’s policy is bad politics.

Now comes news that Obama’s policy is bad law. Earlier this week Chief Judge Royce Lamberth ruled that the funding guidelines issued by the National Institutes of Health (NIH) pursuant to Obama’s executive order violate the Dickey-Wicker Amendment. This Amendment, in effect since 1996, prohibits the federal funding of “research in which a human embryo or embryos are destroyed, discarded or knowingly subjected to risk of injury or death.” Judge Lamberth’s ruling dismissed the so-called “use-derivation” distinction (by which some would defend Obama’s policies) as mere book-keeping:

This prohibition encompasses all “research in which” an embryo is destroyed, not just the “piece of research” in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way. Congress, however, has not written the statute that way, and this Court is bound to apply the law as it is written.

It shouldn’t be surprising that Judge Lamberth finds the “use-derivation” distinction unconvincing. President Clinton’s Bioethics Commission actually reached the same conclusion: “we believe that this [distinction] is a misrepresentation of the new field of human stem cell research.” Because the Commission supported embryo-destructive research, it urged that the Dickey-Wicker Amendment be overturned. But so long as the Amendment remains valid law, Judge Lamberth is obliged to rule according to its language. Unless Congress overturns the law, Obama’s stem-cell policy appears to be bad law.

Yet Clinton’s Bioethics Commission, if it still existed, might no longer support overturning Dickey-Wicker. As Joseph Bottum and I noted in an article in First Things, “Stem Cells: A Political History,” Congress first passed the Dickey-Wicker Amendment in 1996 to prevent Clinton from authorizing federal funds for embryo-destructive research related to fertility treatments. It wasn’t until 1999 that his Bioethics Commission concluded that embryonic stem-cell research was a legitimate reason for embryo destruction, and thus favored overturning Dickey-Wicker. But, the Commission concluded:

The derivation of stem cells from embryos remaining following infertility treatments is justifiable only if no less morally problematic alternatives are available for advancing the research. … The claim that there are alternatives to using stem cells derived from embryos is not, at the present time, supported scientifically. We recognize, however, that this is a matter that must be revisited continually as science advances.

Given the recent scientific advancements with induced pluripotent stem cells, could anyone plausibly suggest that “no less morally problematic” alternative exists? If Obama refuses to follow Bush’s prudent policy, at the very least he should follow that of Clinton’s Commission.

It is unclear whether Judge Lamberth’s decision, a temporary injunction, will be upheld upon full review and appeal. It is worth noting that his ruling suggests that Bush’s policy of embryonic stem-cell funding was illegal as well. While Clinton’s Bioethics Commission found the “use-derivation” to be morally irrelevant, the general counsel in Clinton’s Department of Health and Human Services found it to be legally valid. But Clinton left office before any funding was ever actually approved and thus left the decision to his successor. Bush sought to honor the spirit, if not, perhaps, the letter, of Dickey-Wicker by providing funding for embryonic stem-cell research without incentivizing further embryo destruction. Obama’s policy, clearly trying to skirt both the spirit and the letter of the law, provides fresh streams of funding for embryo-destructive research, so long as the destruction itself is privately funded. Judge Lamberth had no patience for this argument.

Nor should we.

Bad ethics, bad science, bad politics, and bad law. Normally it takes only three strikes to be out. But not even this fourth will mark the death knell for this deadly science: while the ruling temporarily halts the federal funding of embryo-destructive stem-cell research, it does nothing to prevent the destruction of human embryos in privately funded research. There is no law forbidding embryo killing, and there never has been. And despite what some excitable commentators have said, there has never been a ban on embryonic stem-cell research. Yet this injunction is a step toward restoring taxpayer-supported scientific research to its morally upright place.


Ryan T. Anderson is Editor of Public Discourse: Ethics, Law, and the Common Good.

Copyright 2010 the Witherspoon Institute. All rights reserved.

As Richard H. Immerman observes, however, recent foreign adventures have made it difficult for anyone to maintain that the U.S. is not, at present, in some sense imperial, even if words such as ‘hegemon’ are preferred because they “generate less emotion and controversy.” In Empire for Liberty, he provides compelling evidence that, whether laudable or deplorable, recent American foreign policy is not a historical aberration; objectives meaningfully described as “imperial” have always been a central aspect of American policy. And although American imperialism has always been “inextricably tied to establishing and promoting ‘liberty,’” the vague, shifting, sometimes contradictory notions of liberty invoked have led to national behavior that most contemporary Americans would not consider uniformly admirable.

To make his case, Immerman profiles six influential men whose lives span the history of the American republic: Benjamin Franklin, John Quincy Adams, William Henry Seward, Henry Cabot Lodge, John Foster Dulles, and Paul Wolfowitz. Although Immerman does not use this distinction, I will divide this group into two main phases in the history of American imperialism—the progressive and the apocalyptic.

In the progressive phase the dominant imperial perspective was exceptionalist. It presented the U.S. as a great and uniquely free country, destined to spread freedom across North America and act as the harbinger of global progress. There was however, pragmatic acceptance, as unfortunate but stubborn facts of life, of sub-American states and peoples, and the coexistence of rival great powers.

This phase begins with Benjamin Franklin, the earliest theorist of what would later be called Manifest Destiny. God and nature, he believed, willed a great and exemplary empire to dominate North America. In the language of the day, any large jurisdiction comprised of “previously separate units now subordinate to the metropolis” could be called an empire, and this label had no negative associations. Franklin’s North American empire would be great in conventional terms; that is to say, it would be large, wealthy, powerful, and hospitable to the arts and sciences.

At first Franklin imagined that Britain and her North American colonies would rise together by adopting a new, cooperative imperial model in which the mother country provided the fruits of industry and the Americans farmed and provided a market for British manufactures. For this model to work, Franklin thought, British North America needed more land and security. He therefore advocated aggressive territorial expansion and the political unity among the colonies required to deal effectively with the French and the Native Americans. When it became clear to him that the British preferred to maintain the Americans in strict subordination, he continued to advocate these policies, but with a view to consolidating an exclusively American empire, fit to take its place among the world’s great nations.

But although Franklin and most of the other founders worked toward conventional greatness, they also believed that the United States should, in keeping with the spirit of the American Revolution, be distinguished by a special connection with liberty. It is with this special connection that the complications begin.

It was agreed that America should be in some sense an empire of liberty and in some sense an empire for liberty, but there was no agreement about how it should be each of these things nor about which should take precedence. Confusion about the nature and meaning of American liberty drove controversy about foreign and domestic policy at least until the Civil War. There was, for example, a notable conflict between the localist, agrarian ideal of Jefferson and the nationalist, industrial ideal of Hamilton (Franklin, the nationalist agrarian, split the difference). But there were even more fateful questions. Was slavery compatible with or perhaps even integral to an authentic idea of liberty? Could or should non-Anglo-Saxon peoples be integrated into the Empire of Liberty? When did attempts to expand the sphere of liberty (that is, to act as an empire for liberty) undermine America’s integrity as an empire of liberty?

John Quincy Adams embodied these tensions. He believed that continental expansion was required to nurture and protect the new empire of liberty, and to that end he formulated the Monroe Doctrine as Secretary of State to President Monroe. The republic of liberty would only flourish if Americans had adequate room to move and resources to exploit, and the country needed to drive all potentially hostile powers off the continent (indeed, out of the hemisphere). Expansion, however, had to be limited by two considerations that may seem contradictory to readers who assume that all abolitionists confessed our contemporary liberal universalism, which insists on the political irrelevance of race, culture, and religion. For Adams, it was scandalous that a republic of liberty contained slavery, and he was determined that it should not spread slavery. But Adams also doubted (and in this he was not alone) that large populations outside the Anglo-Saxon Protestant cultural orbit were, at least at this stage of history, capable of participating as full members in a free society. For both these reasons he opposed bringing large areas of Central and South America under American control. He spent his last energies fighting “Mr. Polk’s War” in Mexico, and famously declared that the U.S. should be “friends to liberty everywhere” but should not go abroad looking for “monsters to destroy.”

Like Adams, William Henry Seward was a curious compound of abolitionist and ethnocentrist. He considered slavery wicked and “ignoble,” but far from considering ethnic particularism incompatible with the promotion of liberty, he declared, with unsurpassable explicitness, that the two were mutually supportive. He praised the “ruling homogeneous family” of Caucasians that, “having a common origin, a common language, a common religion, common interests, sympathies, and hopes” was in form for dynamic, beneficial action on the world stage. So important was this ethnic unity that Seward preferred it to the claims of justice even within the empire of liberty. During Reconstruction, Seward wrote that the North should “get over this notion of interference with the affairs of the South. . . . I have no more concern for [the negroes] than I have for the Hottentots. . . . They are not of our race.”

Since effective application of the Monroe Doctrine had made the United States secure from foreign domination, Seward was free to focus on America’s role as an instrument of global progress. Although he believed in the objective superiority of republican government, his main concern was to open the world to American capitalism. He believed that commerce had “largely taken the place of war,” and declared commerce to be the foundation of America’s future global supremacy and the chief means by which it would bless the world. He counseled Americans to stay aloof from conquest, having faith that a vibrant America would grow in size and influence by a natural process of “selective osmosis.” Despite being a senator from New York, the “empire state,” he tirelessly advertised the potential of California to serve as the true seat of a glorious commercial empire, and he campaigned for the acquisition of Alaska in the belief that it would serve as a bridge to the Asian market. He hoped that the resulting cultural and economic exchange would revitalize Asia, producing a “new and more perfect civilization.”

The phrase “new and more perfect civilization” may stand as the definitive expression of the imperial spirit during the progressive phase. This phase ended in the late 19^th century with a period of atavistic nationalism that made it incontrovertibly false to say, as did President George W. Bush, that the United States “has never been an empire.” The great representative of this period was Henry Cabot Lodge. In a climate dominated by Lodge and his fellow imperialists, the United States followed the European fashion of colonization, annexing Hawaii and the Philippines and otherwise parading American “muscularity.” Lodge embraced much of Seward’s vision for America’s future, but in his view the causes of wealth and liberty were subordinate to a grand notion of national greatness. He did not share the misgivings of men like President Grover Cleveland, who argued that threatening Hawaiian sovereignty represented “a perversion of our national mission.” Lodge dismissed such qualms with all the Enlightenment idealism of Achilles: “We are a great people; we control this continent; we are dominant in this hemisphere; we have too great an inheritance to be trifled with or parted with . . . . I cannot bear to see the American flag pulled down when once it has been run up, and I dislike to see the American foot go back where it has once been advanced.”

The only curb on Lodge’s ambitions for an American empire was his increasing worry that his earlier progressive attitude toward ethnicity had been mistaken. He began to doubt that those outside Seward’s “ruling homogenous family” could be taught the “stock of ideas, traditions, sentiments, modes of thought” needed to integrate into American society or even to make liberal democracy a success in their own territories. Later in his career, therefore, Lodge became an ardent supporter of restrictive immigration policies and entertained belated doubts about the wisdom of annexing the Philippines.

The apocalyptic phase of American imperialism began at the end of the First World War. It was distinguished by a new sense of urgency: the United States should not only strive for power and influence, but should immediately seize and preserve uncontested headship and actively direct the remaking of the world, preferably in America’s image. Unsurprisingly, the rhetoric of anti-imperialism, directed primarily at the British and the French, becomes more common and strident during this phase. After all, advocates of imperial policies sought to reorder the world so thoroughly that American dominance had to be considered fundamentally different from (and superior to) all previous forms of hegemony.

In a sense the first representative of the apocalyptic spirit was Woodrow Wilson, who famously sought to make the world “safe for democracy,” but it is John Foster Dulles whom Immerman chooses to profile. Dulles developed a nuanced theory of international relations that, perhaps uniquely among theories of any kind, managed to combine ideas redolent of both Hobbes and Henri Bergson. In Dulles’ view, the main aim of diplomacy was to maximize security, which he defined as “freedom from attack upon person and property.” The old model of empire, typified by the French and the British, invited insecurity because it boxed in what Dulles terms “dynamic” elements, meaning (apparently) energetic, creative, and ambitious social bodies, such as the Germans after World War I. These dynamic forces naturally resist the imperial yoke, leading inevitably to violent conflict. The United States, however, possessed the “vision” and “creativity” to design, rule, and expand a zone of security (what Dulles famously named “the free world”) in which dynamism was accommodated with a minimum of violence and participants in the system would be protected from the Soviets, who ruled their own zone inhumanely. Although the main levers of control would be diplomatic, economic, and cultural, the ultimate basis of the system would be American military power. Dulles often used the “lofty vocabulary of the Church and of America’s Founding Fathers” but his guiding goal of security was, like the “national greatness” of Lodge, quite compatible with acts that deprived other nations of sovereignty. As Immerman tells the story, the notion of “liberation” as used by Dulles meant nothing more or less than inclusion (free or forced) in the American zone of security. As proof of this, Immerman cites Dulles advocacy for American intervention in favor of Castillo Armas’ counterrevolution in Guatemala. In Immerman’s judgment, the result of this advocacy was a “sorry chapter in the history… of the United States” in which Guatemala was “ ‘liberated’… from its own people…[making] a mockery of the very word liberty.”

The final profile is of Paul Wolfowitz, who combines Dulles’ enthusiasm for the Pax Americana with Wilson’s democratic idealism. His position, Immerman suggests, is best explained as a response to the genocidal and totalitarian episodes of the twentieth century. History, read as Wolfowitz reads it, yields a clear lesson: tyrants cannot be merely “contained.” Against John Quincy Adams, he maintains that the United States has a solemn obligation to cultivate the overwhelming power needed to destroy the monsters who violate human rights. Unlike all the other figures profiled, Wolfowitz gives no indication of ethnocentrism, insisting that liberal democracy is a universal possibility and a universal right.

But although Immerman evidently feels some sympathy for the generosity and humaneness of the neoconservative impulse (at least as found in Wolfowitz), he reserves his most pointed criticisms for the policies it has inspired, which Immerman considers the most classically imperialist in American history. Revelations about American misdeeds in Iraq, both occasional and systematic, have pointed out the perpetual tension in American history between acting aggressively as an empire for liberty and maintaining integrity as an empire of liberty. Immerman closes with the hope (though he does not sound very hopeful) that the election of Barack Obama will lead to an age of humbler American foreign policy that does not sacrifice liberty for sake of empire.

Empire for Liberty is required reading for anyone interested in the history of American self-understanding. Of course, because it aims at exposition and analysis rather than creative contribution to American political theory, Empire for Liberty naturally invites many questions that it does not acknowledge, let alone answer. How are Americans to understand their national purpose? We may wish to dismiss as baseless bigotry the frank and unapologetic ethnocentrism of many who once defined that national purpose, but their views should challenge us to face some delicate problems: Are there in fact cultural prerequisites of our form of polity? If so, what are they? More fundamental still, what exactly do we mean to export under the name liberty, and in what ways and to what extent is it universally attractive and applicable? Is our understanding of the “stock of ideas, traditions, sentiments, modes of thought” among the vastly diverse peoples whom we would rescue sufficient for us to give a reliable answer?

No historian, qua historian, can give us clear solutions, but by bringing us into conversation with some of the thoughtful men who have trod our path before us, they can offer us what Richard Immerman does this book—the gift of provocation.


Stefan McDaniel, a former assistant editor at First Things, is a graduate student in political science at the University of Pennsylvania.

Copyright 2010 the Witherspoon Institute. All rights reserved.

The buildings that go up in our neighborhood matter to us in just the way that our neighbors matter. They demand our attention, and shape our lives. They can overwhelm us or soothe us; they can be an alien presence or a home … Buildings need to fit in, to stand appropriately side by side; they are subject to the rule of good manners just as much as people are.

Elsewhere, Scruton emphasizes the importance of good manners—whether in decorum or construction—to our common life:

In America’s culture manners are of supreme importance, and recognized as the ultimate guarantee of peaceful coexistence … so that people will fit in, not stand out … to ensure that each person is secure within his space, and that the public realm is minimally threatening.

Edward Shils, in The Virtue of Civility, agrees that good manners “are like uniforms and discipline which hide slovenliness, poor taste and unpleasing eccentricity,” in order to “restrict offensiveness” and allow us to dwell alongside others in courtesy and peace.

Just as the pleasant neighborhood emerges from a diverse set of buildings all striving to “fit in” with their neighbors without losing their own particular status, so too manners in ordinary human conduct recognize, preserve, and quietly insist upon what Marion Montgomery termed “the very graciousness of being,” a tacit acknowledgement of the value of the other. The tradition of civility checks our tendency to put ourselves forward at the expense of comity.

Civility in the political sense allows diverse individuals and groups, even when partisan, to pursue the good of all. So important is civility, the moderating of particular interests for the common interest, that “it comprises a pattern and standard of judgment without which the institutions of civil society cannot flourish.” Thus, while civility is not reducible to liberal democracy, civility is a necessary condition of its success, for civility accepts the plurality and irreducibility of human goods without thereby resigning political life to disordered relativism. If we are to be free, then we must accept that the good can be pursued in many ways; if we are to be free and ordered, then we must not accept any and every judgment but rather those proportionate to human flourishing. Civility, then, allows political neighborliness of those not so illiberal as to turn their backs on the common good.

Here I’d suggest that the two forms of civility highlighted by Shils—good manners and civil society—indicate an underlying third sense without which neither good manners nor civil society could be ultimately reasonable, namely, respect for the dignity of others, for their “very graciousness of being.”

The tradition of good manners recognizes, preserves, and insists upon the graciousness of being and dignity of each individual. Good manners recognize that as ends in themselves persons ought to be afforded courtesy. Neither courtesy nor civil society creates this worth but rather they recognize the pre-existing value of personhood, recognized because it is true.

Civility in this third sense means due respect—piety, even—toward citizens of the cosmos, or, as we usually refer to them, persons. Civility is rightly due to persons because they are goods in themselves, and so not merely factical givens but rather more like gifts. To encounter another person is something like receiving a gift, for in such an encounter a good in itself is gratuitously offered for our consideration—the very graciousness of being—and in the face of that gift we owe courtesy and civil society.

The campus architecture of Randolph College and the many colleges like it is a reminder of the role universities played in promoting civility. Today, though, the university has moved away from the idea that each human is a person with dignity that demands respect. In a 2007 commencement address at Bellarmine University, Wendell Berry explained his resistance to exclusively utilitarian education, arguing that the “American civilization so ardently promoted by these institutions is … a civilization entirely determined by technology, and not encumbered by any thought of what is good or worthy or neighborly or humane.” A university fails its purpose when in unchecked enthusiasm for technological progress it overlooks “preparing their students for responsible membership in a family, a community, or a polity,” and so become “unabashedly utilitarian.” The sort of technological civilization sponsored by the new university is, Berry thinks, fundamentally hostile to civility in all its forms.

The main reason for this, I suggest, is that the utilitarian education of the new university views the cosmos (and its citizens) as brute, factical, as merely given—what Charles Taylor calls the “great disembedding.” The cosmos is mere stuff—indifferent and valueless until it is found useful and assigned a task. Lacking a sense of the gratuity of being, such education lacks also commitment to the worth of being; lacking a sense of the worth of being, such education lacks also commitment to acting only in conformity with the dignity of things; lacking a sense of the dignity of things, such education lacks also commitment to civility and the teaching thereof. If all that is has value only in its use, then nothing is owed any proper respect, let alone the rather quaint respect of modest civility and neighborliness.

It would be thought slightly quaint to suggest that universities exist to form scholars who are also good citizens, and perhaps ludicrous or offensive to add that they should form gentlemen at the same time. This reaction has some justification. Certainly some of the past formation of ladies and gentlemen was genteel and exclusive nonsense. Still, the new university seems to lack civility. Perhaps most glaringly obvious in the sexual norms on campus, incivility extends also to architecture, faculty culture, the lack of genuine intellectual and political diversity, the corporatization of the college (including naming rights for buildings and athletic facilities), cheating as common and accepted, politicization of the curriculum, grade inflation, careerism, and sadly the list goes on. Some of these phenomena reveal a failure of civility in the first sense, the lack of courtesy, while others link more closely to incivility in the second sense, an illiberality in the pursuit of the common good, but all these forms of incivility have at root incivility in the third sense, the stripping away of the very graciousness of being. For without confidence in the worth of things, very little mandates we act in modesty and grace in the face of that worth.

Soon the summer quiet of Randolph College, as of so many other colleges, will return to the bustle and activity of study. Many students will labor under the arches, columns, and balustrades of grace’s legacy: have they been taught the courtesy of offering thanks?


R. J. Snell is an associate professor of philosophy and director of the Philosophy Program at Eastern University.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Given the probable usefulness of ella as an abortion pill, the FDA’s approval of the drug for EC prescription is only the beginning of the controversy surrounding ulipristal. A newly approved abortion drug for EC purposes will warrant future regulatory battles over the drug’s labeling, disputes over abortion funding, and, ultimately, demonstrate the inadequacy of our current pharmaceutical regulatory regime in controlling the “off-label” use of drugs. (“Off-label” use of drugs, of course, refers to the use of drugs for purposes outside of their FDA marketing approval. The possibilities for the “off-label” use of ella are obvious.)

News reports on the approval of ella note that it is an improvement over the previous form of emergency contraception “Plan B” (levonorgestrel), which purports to work only seventy-two hours after unprotected sex or contraceptive failure. Levonorgestrel has been used in hormonal contraceptives for decades, and Plan B simply uses a large dose of it to prevent pregnancy by preventing a woman’s ovulation. (Plan B’s label, however, also notes that it can wok by obstructing fertilization of the ovum or by preventing the fertilized embryo from implanting in the womb.) The ulipristal in ella works in a similar manner according to its label: “When taken immediately before ovulation is to occur, ella postpones follicular rupture. The likely primary mechanism of action of ulipristal acetate for emergency contraception is therefore inhibition or delay of ovulation; however, alterations to the endometrium that may affect implantation may also contribute to efficacy.”  While the operation of the drugs as EC might be similar, ella can boast that it is approved for use up to two days longer than Plan B.

In all likelihood, however, ulipristal does more than simply prevent ovulation or implantation like levonorgestrel. As the American Association of Pro-Life Obstetricians and Gynecologists (AAPLOG) pointed out in their submission to the FDA prior to ella’s approval, ulipristal acts as a “selective progesterone receptor modulator” (SPRM). An SPRM acts to block receptors of the hormone progesterone throughout the body. AAPLOG described three ways this could possibly kill the developing child:

1. Ulipristal blocks progesterone at the level of the endometrial glands, and destroys the receptivity of the endometrium so that the embryo cannot implant;

2. Ulipristal destroys the capacity of the corpus luteum granulose cells to produce progesterone; production of progesterone at the corpus luteum level supports the implanted embryo throughout the first 10 weeks of pregnancy; absent this corpus luteal progesterone production, the placenta which feeds the embryo will die; this mechanism of action is identical to the action of [abortion drug] RU-486 on the corpus luteum;

3. Ulipristal directly blocks progesterone receptors in the endometrial stromal tissue, identical to the mechanism of action of mifepristone (RU-486) which kills the implanted embryo by directly destroying the maternal component of the placenta.

AAPLOG notes that the second and third abortifacient mechanisms, similar to those of mifepristone, distinguish ulipristal from levonorgestrel, which does not interfere with an implanted embryo. So while ella has been approved for marketing as contraception in the same vein as Plan B, it has the capacity to operate like the (more tightly regulated and more controversial) abortion pill RU-486.

AAPLOG, in its submission to the FDA, suggested that ella should have a “black box” warning on its label about its abortifacient properties, not unlike the drug Cytotec (misoprostol)—a drug approved for the treatment of certain ulcers that also moonlights as the abortion drug of choice in places where RU-486 is not available. As it stands, the ella label does note that “use of ella is contraindicated during an existing or suspected pregnancy.” This notice to users, however, is practically meaningless in the world of drug regulation, as the approved use of a drug by the FDA has more to do with marketing than with use.

FDA approval is a notoriously costly and laborious process, and when a drug company submits a “new drug application,” the drug undergoes no fewer than three phases of clinical testing for a specific population (e.g. “adults”), with specific administration criteria (e.g. “by prescription”) for a specific condition (e.g. the treatment of NSAID-induced gastric ulcers). When the FDA approves a drug, it can be marketed by the drug company under the conditions set forth—so the manufacturer can market misoprostol to adults to take the drug by prescription to treat NSAID ulcers. This marketing takes the form of marketing to “learned intermediaries” (physicians) who then recommend and prescribe the drug to patients, or, more recently “direct to consumer” (DTC) marketing, alerting consumers directly what their options are so they inquire with their physicians about the possibility of taking a drug. (The myriad commercials ending with, “Ask your physician if [drug X] is right for you,” following a comically long list of horrible side effects are examples of DTC marketing.) The FDA approval process bears directly on how drug companies can market drugs, not on how physicians can prescribe them.

It is an established fact of law that the FDA does not regulate the practice of medicine. As such, physicians are free to prescribe drugs as the practice of medicine dictates, not as the FDA has approved them. This “off-label” prescription of drugs is so commonplace that in some specialties a physician’s failure to prescribe a drug in an “unapproved” manner can open her up to malpractice liability. In many ways, this makes sense: in fields such as oncology, time is of the essence in treatment, so the cutting edge of the specialty might rely on accumulated knowledge and academic studies in lieu of plodding regulatory approval in Washington; in pediatrics, most drugs are approved already for adult populations, but getting them approved with a supplemental new drug application for children would be prohibitively costly (leaving aside the ethical problems with conducting clinical trials on children). Thus the current FDA regulatory framework does not constrain “unapproved” uses of drugs.

In the case of ella, this means that its labeled contraindication for pregnant women is wholly irrelevant to how it can be prescribed. While the label professes agnosticism as to how ulipristal might interact with an implanted pregnancy, the science of SPRMs like mifepristone is well established. A physician who is aware of ulipristal’s embryocidal properties has nothing to prevent him from prescribing ella to a patient in the early stages of pregnancy, regardless of what the FDA label indicates. Indeed, the main constraint on a physician doing so would be the fear of malpractice liability in the case of an adverse event.

In a sense, ella’s manufacturers do not need the FDA to approve ulipristal for anything more than EC. If they were to get it approved as an abortion drug, that would simply allow them to market it as such, and the political and commercial realities of contemporary America make DTC (or even learned intermediary) marketing of an abortion drug a dubious goal for a corporation. With or without FDA approval, the sorts of physicians who prescribe abortion drugs will be able to prescribe ulipristal to terminate a pregnancy.

Herein lies an immediate problem: If ella is labeled for use as emergency contraception, but can be prescribed to effect an abortion, what is to prevent Federal monies from subsidizing it as contraception, only to have it used as an abortifacient? Congressman Chris Smith has concluded that coverage of the drug is probably mandated under the recent healthcare reform act, and has called on President Obama to issue an Executive Order clarifying that federal agencies and affected insurance plans are not to fund the drug. Given the already blurry line between contraceptive family planning and abortion, executive clarification is certainly in order.

Another development that is probably pending is a dispute over ella’s administration criteria. As it stands, it is only available by prescription, in stark contrast to the other available EC, Plan B. When the FDA allowed Plan B to be distributed to adult women without a prescription for over the counter distribution for women 18 and older it was hailed by Planned Parenthood’s Cecile Richards as “great news for women and great news for women’s health.” It is highly unlikely that the reproductive health left will be content with the administration discrepancy between the two drugs, and similarly unlikely that Watson will pass up the opportunity to increase the drug’s market share as EC by removing the necessity of having a doctor write the prescription (regardless of its capacity to function as an abortion pill). In the coming months and years we should expect a supplemental new drug application from Watson asking for a dual administration label like Plan B, thus allowing adult women to buy ella without prescription. This would put the FDA in the position of approving an OTC abortion pill.

According to Kirsten Moore of the Reproductive Health Technologies Project, ella’s approval “was consistent with standard FDA procedure and based on scientific evidence, not politics.” Those standard FDA procedures, however, are not well equipped to respond to the unique problems posed by the emergency contraception ulipristal: namely its potential for off-label use as an abortion pill. Even if the FDA were to rightly adopt stricter labeling guidelines warning of abortifacient potential, like those employed with misoprostol, that would only serve to inform consumers, and not have any bearing on physicians who prescribe the drug to perform an abortion. Such warnings will also have little effect on women who purchase the drug on their own, should ella become over-the-counter like its predecessor Plan B, with the intent of procuring an abortion.

The possibilities of public funding for ella, its switch to over-the-counter availability, and its usefulness as an abortion drug implicate more than just “scientific evidence,” and necessarily involve politics. Drugs like ulipristal further blur the line between contraception and abortion, and lawmakers like Congressman Smith are right to demand that those lines remain bright when it comes to appropriations, regardless of the confusion caused by FDA labeling. More generally, the relatively quiet approval of an abortion drug as contraception should cause us all to step back and consider whether our current regulatory framework is in the best interests not only of Big Pharma, physicians, and patients, but also those of the body politic.


Michael Fragoso, formerly a policy analyst at the Family Research Council, is a law student at the University of Notre Dame.

Copyright 2010 the Witherspoon Institute. All rights reserved.

But what if people began to argue that a tail really is a leg? They might say that what defines the leg is that it is an appendage of the dog’s body, that it contains bone and muscle covered with skin and fur—just like a tail. Tails just happen to come out of the body at a different angle than other legs. When a tail hangs down low, who can tell the difference?

This is an example of defining a thing according to non-essential characteristics. It is like saying that a soldier is “a man who wears a uniform and carries a gun,” or calling a football stadium “a field surrounded by lots of seats.” It may be true in each case, but fails to tell the story.

To continue the figure, the bones and muscle of a leg are different from the tail. They have to support the dog and make it possible to run and jump. No matter how well the dog can wag its tail, it will not propel it anywhere. The issue, then, is not that the leg has bones and muscles, but how they are put together, and why. A tail is not a leg, because it is impossible for it to function as one.

Some may respond that there are legs on many dogs that cannot propel the dog anywhere. They have broken bones, or withered muscle, or have lost the foot in an accident. If not all legs can propel the animal forward, then this ability is not an essential characteristic of a leg. If lame legs are legs, so is a tail.

But a wounded leg is still a leg. Repair it, and it will function as one. If it cannot be repaired, this fact does not change the kind of thing it is. It is a leg, though damaged. The tail remains a tail.

The call for same-sex marriage involves a similar misdefinition. Marriage is often characterized today as follows: 1) two people 2) who love each other 3) want to perform sexual acts together, so 4) they consent to combine their lives sexually, materially, economically 5) with the endorsement of the community. Since same-sex couples can meet the first four criteria, how can society refuse the fifth?

It is easy to see why this would be a cause of aggravation, not only for same-sex couples who wish community endorsement of their relationships, but for millions of others. If the criteria stated above actually define marriage—and in contemporary Western society, many have come to view marriage as no more than this—then refusal to acknowledge and endorse same-sex relationships is a rank injustice, nothing but an exercise in bigotry or stupidity.

Typically, marriage does in fact have these characteristics. But why does marriage have these characteristics? Remembering why will help us to remember how they show themselves in a relationship that has the essence of marriage—and how that is often different in other relationships.

First, human beings have a powerful hankering to engage in sexual intercourse.

Second, sexual intercourse between a man and a woman naturally and frequently leads to children. Male and female alone each have part of a complete reproductive system. Without both parts, reproduction cannot happen. Without the result of children, it would be a real puzzler why we have these organ systems at all, and why we have such a deep urge to engage in sexual acts.

Third, the rearing of children is a lifetime responsibility. As deeply social beings, we remain connected to each other across generations. Even adults with children of their own need the wisdom and guidance of their fathers and mothers. It is easier for those who enter this project that they have affection for each other, and that they form a self-giving friendship. To perform these actions lovingly is the properly human way.

Fourth, because it leads to children, sexual intercourse has extraordinary public consequences. It is not, as we might like to think, a purely private act. It matters a lot to the community who is doing it, and under what circumstances. So the community endorses certain sexual arrangements; others, which fail to abide by the fullness of truth of human sexuality, the community rejects as unfitting for human beings. To support those that are fitting, it offers the institution of marriage. In marriage, the couple promises before the community to fulfill this project through vows of fidelity and permanence, joining their bodies and their lives to make the project work. The community promises to give the couple the privacy to perform their sexual acts, and care for each other; it further supports the family by means of appropriate protections and benefits. It may be that others could receive similar benefits for different reasons, but this is why benefits accrue to marriage: to help the marriage project flourish.

If sexuality did not naturally bring us offspring, it is hard to explain why it exists, whether you believe in a purely material evolution or a loving designer of the universe, for it would serve no purpose. If sexual acts did not naturally lead to offspring, it is just as hard to explain how marriage would have appeared in human history, for it would serve no purpose.

Religions may bless marriage, but they did not invent it. Because it involves such profoundly important human realities, it is no surprise that sex and marriage have religious significance. But sex and marriage have existed as long as there have been human communities.

If we accept the misdefinition of marriage using non-essential characteristics as the complete story, it would be impossible to reject same-sex marriage. Given the whole truth, however, it is impossible to accept it. No matter how superficially similar they are to real marriages, same-sex relationships cannot function as marriages.

Today, marriages crumble, families are torn, society flounders. Why? We are not living in the truth. We accept a bad definition of marriage, acquiesce to almost any sexual arrangement, glorify the quest for sexual pleasure, treat children as a means to fulfill our desires. Overwhelmingly, research shows that rearing children in any other environment than with both their natural parents is damaging. Sometimes that damage is unavoidable, as when a parent dies, but we shouldn’t seek it. And it certainly won’t help to say the impossible is real.

We need the truth. We need to fix the legs. Calling a tail a leg only makes matters worse.


Stephen J. Heaney is Associate Professor of Philosophy at the University of Saint Thomas in Saint Paul, MN.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Such judicial activism has been an ongoing problem for decades. In response, a conservative legal movement has arisen to offer resistance through public and scholarly argument, the election of constitutionalist presidents and senators, and, ultimately, the appointment of judges and justices who will confine themselves to the requirements of the constitution and refrain from imposing their own values as law. Such efforts have been fruitful but never fully effective. Judicial activism has been slowed but not stopped, with the result that democratic self-governance and the rule of law continue gradually to erode. Since even the incremental surrender of these fundamental principles of American republicanism is unacceptable, it is time to weigh the use of stronger medicine. It is time to consider the impeachment of federal judges as a remedy to judicial activism.

Impeachment will place the argument against activist decisions on its proper footing—presenting them not as mere errors, but as illegitimate usurpations of power lodged elsewhere, as incompatible with the preservation of democratic self-government and the rule of law. Despite their insulation from the political process, most judges are sensitive to public opinion and mindful of the need to maintain the courts’ public legitimacy. Thus the debate begun by judicial impeachments will, if pressed publicly, reasonably, and tenaciously, foster restraint among the more prudent federal judges, who will perceive that such debate is not in the institutional interests of the judiciary.

Such a proposal will, of course, provoke a chorus of outraged objection from the American left, which has won so many of its policy victories through the promiscuous use of judicial activism. It will be said that the use of impeachment constitutes an attack on the independence of the judiciary, and hence an attack on the constitution itself, insofar as judicial independence is a key constitutional principle. Such an argument, however, mistakenly elevates a mere institutional means to the status of a constitutional end. The founders did value judicial independence, not as an end itself but as a way of securing the impartial rule of law. The purpose of an independent judiciary was to ensure that the constitution was observed according to its original meaning, despite the whims of temporary impassioned majorities. It was not intended to allow judges to invent new constitutional doctrines out of whole cloth and impose them authoritatively on an unwilling populace. Yet the latter is precisely what modern judicial activism entails.

The founders were practical men who sought the most effective ways to secure lawful self-government. Accordingly, they frequently appealed to the lessons of experience. In our time, experience shows that the independence of judges, which was designed to protect the constitution as a rule of law, has been abused to the extent that it is now a threat to the constitution as a rule of law. The institutional means has, in practice, become hostile to the constitutional end for which it was devised, and such a situation demands some corrective action. Fortunately, the constitution itself provides for such a corrective in the form of impeachment and removal of judges from office.

Some will likely object that the purpose of the impeachment power is to rid the federal judiciary of judges found to be guilty of criminal wrongdoing. Certainly this is the most common use of the impeachment power in relation to judges, but there is ample reason to believe that the constitution contemplates its broader use as a corrective to the abuse of the judicial power. The idea that impeachment is to be reserved only for cases of criminal wrongdoing receives some superficial support from the constitution’s language that it shall be used in cases of “treason, bribery, and other high crimes and misdemeanors.” The term “misdemeanor,” however, can be understood to include not only law-breaking but, more generally, misconduct. After all, Webster’s defines a misdemeanor not only as a crime less serious than a felony, but also as a “misdeed.”

Historically, this broader understanding has been borne out in the area of presidential impeachments.  For example, the articles of impeachment approved by the House of Representatives against Richard Nixon cited not only his criminal conduct, but also his misleading of the American people about his role in the Watergate cover-up. The House evidently regarded such conduct as an abuse of the office of the presidency that was worthy of impeachment and removal from office. To this extent, the grounds for impeachment appear to include unethical abuses of official authority.

Indeed, it is worth noting that the constitutional language that applies specifically to judges reinforces this conclusion in their case. Article III of the constitution provides not that judges shall serve for life, but “during good behavior”—a formulation that clearly suggests that their continuance in office depends on more than just steering clear of unlawful conduct. Moreover, it is reasonable that the constitution should imply a lower standard for judicial impeachments than for executive branch ones, insofar as judges, not having to face re-election, can be restrained in the conduct of their offices by no other principle.

It should be obvious that judges are capable of non-criminal misconduct for which impeachment is an appropriate punishment. A judge might, for example, manipulate his enforcement of trial procedure and the rules of evidence so as to ensure a conviction that might not have been secured on a more neutral management of the trial. He might do so, moreover, on the basis of his own private conviction that the defendant is guilty of some other crime for which he is not being tried in this case. Surely no one would deny that a judge who behaves in this manner deserves not only to have the verdict of his court reversed on appeal, but also that he himself deserves to be disciplined by being removed from office. The former remedy can correct the injustice at hand, but only the latter can ensure that it is not repeated.

Again, someone might object that there is a difference between this kind of mistreatment of a litigant at trial and the case of a judge dealing with constitutional questions. There is indeed a difference, but it is one that makes impeachment just as appropriate, or even more appropriate, to the latter case. The cases are analogous to the extent that both involve a judge allowing his personal convictions about what is just to influence the exercise of his duties. Nevertheless, the one who indulges such behavior in relation to judicial review arguably does something worse. For the trial judge who abuses his procedural discretion against a litigant does violence most immediately only to the rights of specific persons, while the judge whose moral and political prejudices lead him to strike down laws on the basis of spurious constitutional theories does violence to the rule of law and self-government, that is, to American republicanism itself.

Moreover, the use of impeachment as a restraint on an ambitious judiciary was publicly advanced by one of the leading defenders of the constitution during the ratification debates. The problem of what we now call judicial activism was a common worry of the anti-federalist opponents of the constitution, who feared that federal judges would use their power of judicial review to strike down democratically enacted laws, intruding illegitimately on the legislative power. When the anti-federalists pointed this out, Alexander Hamilton, writing in Federalist 81, responded that a “complete security” against such abuses was provided by “the important constitutional check” found in “the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other.” Hamilton says that there is no serious danger that “judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body entrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.” Hamilton’s faith in judicial good behavior was based on the constant implicit threat of impeachment.

The rise of the tea parties has revealed widespread dissatisfaction with the fecklessness and irresponsibility of the political class. An appetite to see its worst members called to account could be extended to the judicial class. Indeed, the rise of the tea party movement indicates a widespread openness to restoring the vitality of American republicanism precisely by returning to the principles of the founders. Politicians and public figures concerned about the ongoing abuse of the judicial power should do a lot of work to remind citizens of the compatibility of judicial impeachments with constitutional principles.

It is possible that despite being constitutionally sound and, potentially, politically appealing, this strategy is doomed to fail as policy. It is extremely unlikely that the House and Senate would approve articles of impeachment against a judge. Nevertheless, judicial impeachments need not lead to removals from office in order to exert a wholesome restraining influence on potential judicial activists. Merely to introduce articles of impeachment, and to defend them vigorously in the proper terms, will tend to induce caution in federal judges, who, again, must be sensitive to public perceptions of their legitimacy.

The hour is late. Over the last three generations the federal courts have more and more usurped the right of the American people to govern themselves, not merely in trivial matters but in relation to weighty issues such as the protection of life, the definition of marriage, and the rights of enemy combatants. It is time to restrain such judicial excesses by using the tools provided by the constitution for that very purpose.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha. He is the author most recently of The Way of Life: John Paul II and the Challenge of Liberal Modernity (Baylor University Press).

Copyright 2010 the Witherspoon Institute. All rights reserved.

Such an advocate is Judge Vaughn Walker of the U.S. district court in San Francisco. After two and a half weeks of trial in January, and a day of closing arguments in June, he finally delivered his ruling and opinion in Perry v. Schwarzenegger on August 4, overturning California’s Proposition 8, an amendment to the state constitution adopted by the people in November 2008, declaring that “only marriage between a man and a woman is valid or recognized in California.” The California Supreme Court, in May of that year, had overturned an earlier popular referendum protecting marriage (that had only statutory status) on grounds that it violated the state constitution. And so the people of the state, against the odds and facing elite opposition, amended that constitution just six months later. Judge Walker has shifted the ground of the controversy to the federal constitution, and has flung wide the door of the federal courts to embrace (he hopes) some of the worst sophistical knavery that has been seen in quite some time in the pages of American jurisprudence.

Perhaps the most surprising thing in the judge’s opinion is his declaration that “gender no longer forms an essential part of marriage.” This line, quoted everywhere within hours with evident astonishment, appears to be the sheerest ipse dixit—a judicial “because I said so”—and the phrase “no longer” conveys that palpable sense that one is being mugged by a progressive. But Judge Walker’s remark here is actually the conclusion of a fairly complex argument. The problem is that the argument is not only complex but wholly fallacious.

Judges, especially those of the lower courts, know that their innovations in constitutional law are best armored by an appearance of continuity with history and precedent. And so Judge Walker begins by reminding us that the right to marry has long been considered “fundamental” in our jurisprudence. And so it has, for those—namely couples of men and women—considered capable of entering into the relationship of marriage. Are the same-sex plaintiffs in the Perry case asking then for a “new” right, or for admission without unjust barriers of discrimination to the enjoyment of an old one? At first glance it looks like the first of these is the case. But any road that leads to the second conclusion will be smoothest for the judge-advocate’s purposes, since it will provide that much-desired appearance of continuity with the law’s long history.

Yet how to pave that road? By distinguishing between the “core” attributes of the institution of marriage and those that are only incidental, those historical attributes that have been abandoned without harm to what is essential about marriage. Many American states, for instance, once considered race an important attribute, so that racial difference was a barrier to the formation of a marriage. But race is now universally understood not to matter, and the Supreme Court even said in 1967 that the Constitution did not tolerate such a legal rule.

By the same token, says Judge Walker, the doctrine of coverture, in the common law, in which a wife’s legal identity was subsumed by that of her husband as the superior partner in the marriage—that too has been abandoned by a more modern understanding of the sexes as equal partners. Thus, concludes the judge, there has been a “movement of marriage away from a gendered institution and toward an institution free from state-mandated gender roles.” And this has not been an essential change in the “core” of the marriage institution, but merely a shedding of an extraneous characteristic, thanks to “an evolution in the understanding of gender.”

And now watch carefully, for here the fallacious reasoning enters the equation. When “the genders” are no longer “seen as having distinct roles,” it is revealed that at marriage’s “core” there is ample space for same-sex couples too. Since “gender no longer forms an essential part of marriage,” indeed since it never really did, “plaintiffs’ relationships are consistent with the core of the history, tradition and practice of marriage in the United States.” There, you see? There is something eminently conservative about the admission of same-sex couples to the marital bond. What could we have been thinking, denying them this right for all these centuries?

Judge Walker seems to have committed the fallacy of composition—taking something true of a part and concluding that it is also true of the whole of which it is a part. If it is true that “gender” no longer matters as it once did in the relation of husband and wife, he reasons, therefore it no longer matters whether the relation is one of husband and wife; it may as well be a relation of husband and husband or of wife and wife, since we now know that marriage is not, at its “core,” a “gendered institution.” But restated in this way, it is quite plain that the judge’s conclusion doesn’t follow from his premises. To say that the status of men and women in marriage is one of equal partners is not to say that men and women are the same, such that it does not matter what sex their partners are. The equalization of status is not the obliteration of difference, as much as Judge Walker would like to pretend it is.

Once having admitted same-sex couples to the ranks of those holding the “fundamental right” to marry, the judge has easier sport in his sights, manipulating the “levels of scrutiny” that so afflict modern constitutional law, and concluding withal that the voters who approved Proposition 8 acted without any “rational basis” for their decision to preserve marriage in the only form in which our law has ever known it. Now conservatism gets a hiding from Judge Walker: “Tradition alone . . . cannot form a rational basis for a law.”

Well, yes, to be sure. Tradition must give its reasons—though in the common-law legal tradition, it is novelty that usually bears a heavier burden in this respect. And is it really as easy as the judge thinks to dismiss a “tradition” so bound up with commonsense understandings of nature, of human flourishing, of the purposes of marriage and family? Confidently sweeping aside such understandings, Judge Walker declares that “moral and religious views form the only basis for a belief that same-sex couples are different from opposite-sex couples.”

This is a very telling conjunction. Once it would have been thought to strengthen the case for a law, that it rested on the moral views of the lawmakers, if no countervailing right against being governed by such views could be adduced. And it would have been a matter of no legal suspicion whatsoever that the moral views informing a law found confirmation in widely held religious views as well. For such moral principles are not articles of faith, in the sense of being specially revealed to the elect or the faithful. They are the conclusions of trains of reasoning about right and wrong, and about human ends and the fitness of the means to them. In language we might borrow from Plato’s Euthyphro, the moral norms that govern marriage are embraced by the pious not because they are mysterious commands of an inscrutable divine will, but because they are rationally knowable as good in themselves, and for this reason find support in the dictates of faith as well.

But for Judge Walker there is an odor of illegitimacy about merely “moral” views expressed in legislation, especially when morality finds support in religion. Thus he declares that Proposition 8 expresses only a “private moral choice,” not a considered public morality. And thus in his tendentious “findings of fact” (about the purpose of which, see this editorial in National Review), he makes the astonishing claim—purporting to be a fact found at trial, not a judgment of his own—that “religious beliefs that gay and lesbian relationships are sinful . . . harm gays and lesbians.”

Perhaps here, in this nadir of absurdity, we have found the real fundament of the judge’s thinking. Citizens who wish to defend the institution of marriage as they and their families have known it all their lives, and for countless generations, are irrational bigots. Worse still, if they are moved to act because of the union of their faith with their moral opinions, they are crazy religious folk, bent only on harming others whom they merely “dislike” on grounds that cannot possibly be defended before a tribunal of right-thinking people. And those others, the same-sex-couple plaintiffs? They must be rescued from the “harm” to their feelings that results from their exclusion from a historic civil and moral institution that has never hitherto been thought to have been built for them.

That Judge Vaughn Walker evidently cannot grasp what an effrontery his opinion is to the faith, the morals, and yes, the feelings of the vast majority of his fellow Americans is the final irony of his ruling in Perry v. Schwarzenegger. But perhaps he can be taught a lesson about the violence he has done to the rule of law, and to the United States Constitution.  His fellow citizens, more accustomed than he to governing themselves by canons of reasoned judgment, may have to teach the lesson, if his superiors on the bench will not do so.


Matthew J. Franck is the director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

Copyright 2010 the Witherspoon Institute. All rights reserved.

While technologically the atomic bombs marked a departure from earlier bombing raids in Japan and in Europe, which had required many bombers and tons of ordinance, strategically, these two raids were of a piece with earlier allied actions. The American firebombing of Tokyo, for example, killed roughly 100,000 people. The Allied bombings of Dresden and Hamburg, meanwhile, deliberately targeted “built up” residential areas and killed tens of thousands of German citizens. These bombing raids were part of a strategy of demoralization in which military facilities and armament production were not the main targets. By deliberately attacking civilian populations the Allies hoped to teach their enemies a lesson and bring them to their knees.

Some few Catholic scholars, notably Elizabeth Anscombe and Fr. John Ford, S.J. argued at the time that the Allied approach was immoral. Their argument, which drew from a moral tradition dating back to St. Augustine, was based on the premise that intentionally killing the “innocent” was always a grave wrong. Both Anscombe and Ford noted that, despite occasional confusion, the meaning of “innocent” could not be “morally innocent,” but rather must mean “not posing a threat.” For it is a threat that justifies the use of defensive force in war, not the moral character of individual civilians who might be morally at fault in their support of, say, the Nazi government, yet be engaged only the in same tasks they would have been working on in peacetime: growing and distributing food, caring for their families, working in the medical profession, and so on. Given this approach to the distinction, Ford estimated that as much as two thirds of the city of Boston would, during World War Two, have been “innocents,” when women, children, and the aged were factored in.

The Allied bombings in Europe, then, and the firebombing and atomic bombing in Japan, seem to have been deliberate targeting of civilian populations: in other words, intentional attacks on innocent human life. And, if Anscombe’s and Ford’s premise about intentional killing of the innocent is correct, then the conclusion is inescapable: these Allied actions constituted murder on a vast scale, running to hundreds of thousands of lives.

Two possible justifications might be offered for these actions. One is that German forces had also, and earlier, attacked British citizens, thus initiating the targeting of non-combatants. Something like this seems to have been foreseen by the British, for, in 1939, President Roosevelt had asked for assurances from the warring parties that there would be no targeting of civilians. The British had agreed, but added a condition saying that they reserved the right to adopt “appropriate measures” in the event that Germany should attack civilians. Yet the right not to be murdered, and the obligation not to murder, are not conditional on what other persons might or might not be doing. Those attacking may, of course, be defended against; but their moral wrongs do not, as such, provide a license to any party to abandon moral norms themselves. Nor, as noted, were German civilians themselves the ones attacking. So the “reprisal” justification fails.

Similarly, the outright consequentialist justifications that were offered then, and continue, in some cases, to be offered today, fail, for two reasons. First, there are inevitable epistemic limitations to our knowledge about what would have been the case without these Allied attacks. Would the war really have lasted longer and cost many more lives? What were the long-term, as opposed to the short-term, consequences of dropping the bomb? There is much speculation on these questions but little, if any, real knowledge.

Second, and more importantly, why should we think that there really are “best possible consequences?” How are the lives of innocent Japanese and German women, children, sick, elderly, and non-military personnel to be weighed against the lives of Allied fighters in such a way as to make clear that saving a certain number of Allied lives was “better” all things considered than killing a much larger number of enemy civilians? The impossibility of such a calculation, and the dignity of each human being, as a free and rational creature, seem together to be at the root of the traditional injunction never intentionally to kill the innocent. Meanwhile, the abandonment of this injunction seems to be at the root of the philosophical and cultural move in the direction which Anscombe called consequentialism.

The Allied bombings were, therefore, by the standards of traditional, non-consequentialist morality, utterly wrong and intrinsically unjustifiable. And this great moral evil has itself had consequences, some of which it is salutary to note now, more than half a century later.

Some of those consequences have been to the good. Thankfully, the inference which Anscombe and Ford drew from the moral injunction against intentional killing to the moral conclusion against area (or terror) bombing has increasingly become part of our Western military ethic. The option is apparently no longer available to the generals in any Western army to order the obliteration of a city for the sake of inducing its rulers to surrender. And this surely must be considered moral progress in the making of war.

Yet other consequences indicate that the moral lessons of World War Two have not fully been absorbed, or, if they have, that they have been absorbed in the way that bad acts usually are: they are absorbed into the character of those who performed those acts, or approved them, and never repudiated them. For it cannot truly be said, for all the progress in military ethics, that the West has fully repudiated either the Allies’ actions, or the consequentialism underlying them. Anscombe would surely be a minority figure today, as she was in the 1950’s, for holding that a “couple of massacres” to the credit of Harry Truman made him unworthy as a candidate for an honorary degree at Oxford; and Winston Churchill is today considered a great hero of the War, despite considerable evidence that he was a major architect of the policy of terror bombing. And, finally, there are still many in the West willing to defend the atomic bombings as decisions difficult but necessary for the common good.

So the actions have not been repudiated; nor has the consequentialism, which is nakedly on display in the West’s willingness to countenance the killing of unborn children for the sake of avoiding negative consequences, to countenance the killing of in vitro human beings for the sake of the positive health consequences, and, for many decades, to countenance the conditional elimination of entire populations in the event that their leaders should strike us with atomic weapons. In each case, a decision has been made that innocent human lives are not to be held sacrosanct, or inviolable, if the consequences of doing so would be too significant. The consequentialist ethic of the Allied bombings is thus still with us, and plays a continuing, and horrific, role in our public and private moral deliberations.

There are, finally, some problem areas, puzzles regarding which we have not yet determined how the lessons of World War Two are to be brought to bear. As I noted, military ethics now take for granted that civilians are not to be targeted. Perhaps, however, that has simply made our leaders more scrupulous about calling civilian casualties “collateral damage,” even when they are willing to accept many more such casualties than they would harm to our own troops. But the original precept against killing the innocent no matter what the consequences is based on an even deeper truth: the fundamental and radical equality of all human beings as persons, as free and rational beings whose lives are each loci of intrinsic and incommensurable value. The West’s willingness to bomb at a distance, engage in drone attacks, and tolerate, in Iraq and Afghanistan, wildly disproportionate numbers of civilian casualties, suggests that our soldiers do indeed count more than their wives, children, and elderly. While this may be an understandable viewpoint in any society, it is not, for all that, a correct one.

So Hiroshima and Nagasaki, the bombings that preceded them, the decisions that led to them, and the rationalizations that justified them, remain with us today, underwriting both some of our most grievous moral errors, and our more ambiguous moral triumphs. As individuals, and especially as a nation, it still remains for us to grasp the deep significance of those fateful, and horrible, days.


Christopher O. Tollefsen is Professor of Philosophy at the University of South Carolina and a senior fellow of the Witherspoon Institute. His latest book, co-authored with Robert P. George, is Embryo: A Defense of Human Life (Doubleday, 2008). Tollefsen sits on the editorial board of Public Discourse.

Copyright 2010 the Witherspoon Institute. All rights reserved.

We take a simpler view. Our analysis of the bill has been concerned with protecting the unborn and guarding the consciences of those who bravely refuse to participate in their destruction. We have been guided by the conviction that it is our duty as citizens not only to extend healthcare but also to expand the circle of human care. Commonweal is free to flog whatever interests and flay whatever enemies it wishes, but those are distractions from the pressing task at hand.

The editors of Commonweal seem to have a bad case of miter envy. They think that we here at Public Discourse imagine ourselves wearing one, because we dared to publish a defense of the U.S. Conference of Catholic Bishops’ legal analysis of the Obama administration’s healthcare law, the Patient Protection and Affordable Care Act (PPACA). They charge that Public Discourse and Professor Helen Alvaré, author of “A Health Care Challenge to Commonweal and Timothy Jost,” have tried to turn a dispute over abortion funding in the health care law “into an ecclesial turf war.” With genuine or feigned high dudgeon, Commonweal instructs us that “it is possible for Mennonites—or Mormons or Zoroastrians—to construe a piece of legislation correctly and for Catholic bishops to misconstrue it.”

We readily admit as much. But who suggested otherwise? We agree with the bishops on this issue because they are right, not because they are bishops. Professor Alvaré does likewise. And she criticized Timothy Jost, Commonweal’s favorite health care expert, not because he isn’t a Catholic but because his legal arguments are lacking. Surely at Commonweal they have noticed that this conclusion might be applied to persons who call themselves Catholics—not just to those who call themselves Mennonites or Mormons or Zoroastrians.

In her initial piece for Public Discourse and a follow-up published today, Professor Helen Alvaré, chair of the Witherspoon Institute Task Force on Conscience Protection, has done a brilliant job of ignoring distractions and simply pointing to the actual words of the bill. Alvaré agrees with our analysis that unless the bill is revised or repealed, Americans face the risk of new, unprecedented, and direct taxpayer funding for abortions. We urge everyone to read these articles.

It has become standard practice for politicians and public figures of all stripes to present themselves as “pro-life” even when they oppose the basic goals of the pro-life movement. Despite this devaluing of the word, we are still inclined to take people at their word when they identify with the unborn. But we are troubled at the fact that when you actually look at the words of Jost, they are at best ambivalent, and at worst actually opposed to the cause of life.

Our concerns center on Jost’s public stance against the pro-life Stupak Amendment. Of course, there are many conceivable reasons why a pro-lifer might have opposed the Stupak Amendment, but Jost’s reasons were neither tactical nor prudential. Instead, they appear to be principled. For Jost’s opposition to the amendment was based on the premise that abortion—far from being the taking of innocent life—is a legitimate form of health care:

The intent of health care reform, as President Obama said from the outset, was to extend health insurance to Americans who do not now have it while not taking away coverage that Americans now enjoy. Reportedly, half or more of health insurance policies in the United States now cover abortion. To the extent that any Americans insured through such policies will receive affordability credits under the new legislation to purchase their health insurance, they will have less coverage after the bill goes into effect than they did before.

Jost decries the fact that citizens will lose their abortion coverage, but the pro-life movement’s stance all along has been precisely that the intent to harm has nothing to do with the call to heal. No pro-lifer could agree with Jost’s claim that a health plan that dropped their coverage for abortion would offer “less coverage after the bill goes into the effect than they did before.” Abortion is not health care.

In the same piece, in a surprising category error for a law professor, Jost worries about Catholic participation in the health care debate, and urges “Let us not become another Iran.” He remarks that the “separation of church and state” is somehow threatened if the Catholic bishops succeed in persuading the Congress of a point in moral reasoning that has no recourse to revealed truths of the Catholic faith. We know that one or two major figures in the law have been careless enough to make this kind of argument—Justice John Paul Stevens comes to mind—but it does not recommend Jost to us as a legal thinker. By this line of thinking, no legislation grounded in any moral judgment could survive constitutional scrutiny if it happened to coincide with the moral tenets of any identifiable religious sect. That is not remotely plausible as a reading of the First Amendment, and it is not what one would normally expect from a legal scholar who bills himself as a pro-life Christian.

What remains most confusing about Jost’s case is the fact that he previously expressed rank hostility for the Stupak Amendment but now claims (approvingly) that the new law prevents everything the Stupak Amendment was intended to prevent. If that is indeed the case, his strong opposition to Stupak and love of the current bill today seems baffling.

Jost professes to be shocked that Alvaré has, in his words, “essentially written a brief that could be used by an abortionist claiming that community health centers must cover abortions.” This, he intones gravely, “is a very strange argument for a pro-life advocate to be making.” But if Alvaré is right about the law, as we believe she is, then there’s nothing the least bit strange about it. Abortionists hardly need assistance in making this case, while allies of President Obama with dubious claims to pro-life credentials can be expected to say—as Commonweal and Jost have consistently done—“nothing to see here, move along, folks.”

Jost’s revealing slips and naked partisanship come as little surprise at this point in the debate. Pro-life groups have tried in vain to correct the errors promoted by Jost and Commonweal. Nonetheless, Jost continues to cite irrelevant statutes and ignore the relevant precedents on the issue of the funding of Community Health Centers. He has also refused to acknowledge the threats the bill poses to conscience protection. Commonweal, for its part, has been a broken record playing a bad song. They have constantly reiterated the claim that “new funding [under PPACA] was already implicitly covered by the [Hyde] amendment.” But, as we have stated before, there’s no reason to think this. In previous cases the court has mandated that agencies spend money on abortion when there is not statutory language stating otherwise.

We’re hardly happy with our assessment of the new health care law’s treatment of abortion. It would indeed be nice if the claims advanced by Commonweal and Jost were true and the position held by Alvaré and every major pro-life group was false. But the law speaks for itself. There is nothing we can do except change it. One way to do so would be through the Protect Life Act, which was recently introduced into Congress. Here, surely, is a place where the pro-life movement can stand together. If Commonweal and Jost take protecting life as seriously as they took the imperative to pass the health care bill, they will stop sniping from the sideline and join us in the effort to restore the protections they helped destroy.


Copyright 2010 the Witherspoon Institute. All Rights Reserved.

In his response to my piece on abortion and health care, Jost claims that pro-lifers have failed to cite relevant judicial decisions. This is a canard. Pro-lifers have cited the pertinent cases chapter and verse—especially in a legal analysis written by the United States Conference of Catholic Bishops. It is hard not to think that Jost is being disingenuous when he demands “[the name of a] single [judicial] opinion that has ordered abortion coverage in the face of a federal administrative regulation and an executive order that interprets a federal statute as prohibiting abortion coverage.”

As Jost surely knows, the category he describes is a null set. Such opinions could not previously exist. Before the Hyde Amendment, there were no such federal administrative regulations or executive orders because there was no statutory abortion-funding restriction on which to base such a regulation or order.  After the Hyde Amendment, there were no federal health care mandates that could include elective abortion for the simple reason that Hyde already applied to all of them.

Jost admits that “the Hyde amendment . . . does not specifically cover the funds appropriated for community health centers [CHCs] under §10503 of the Affordable Care Act.” He nevertheless holds that Hyde will restrict the funds in the newly created CHC fund because these will be “mixed together with funds covered by the Hyde Amendment.” But he continues to provide no legal support for this argument—no case law, no relevant statutory text.

Jost seeks to bolster his claims by appealing to the authority of law professor Thomas Berg. In a recent essay for Democrats for Life, Berg looked at the language of §10503 (“The Secretary of Health and Human Services shall transfer amounts in the CHC Fund to accounts within the Department of Health and Human Services”), and concluded that such funds will become subject to Hyde restrictions by becoming part of “existing accounts” already covered by Hyde. Unfortunately, the word ‘existing” nowhere occurs in the passage he cites. While Berg made a more complete attempt to address the relevant questions, his conclusion also flies in the face of the plain language of the Hyde amendment, which states that it applies only to funds “appropriated in” the Labor/HHS appropriations law, or to “funds in any trust fund to which funds are appropriated in this Act.” The new CHC fund is not appropriated by the Labor/HHS law, but by a new law—PPACA. PPACA furthermore does not appropriate funds into any “trust fund” receiving Labor/HHS appropriations, but rather into a new—and separate—CHC fund.   Neither Professor Berg nor Professor Jost can get around this plain language.

In yet another red herring, Jost invokes the Chevron principle of administrative law, which holds that courts will defer to the reasonable interpretation of a law by a federal administrative agency unless the law is unambiguous. Yet his legal argument has two fatal problems.

First, the CHC law unambiguously requires that CHCs fund “health services related to family medicine, internal medicine . . . obstetrics, or gynecology that are furnished by physicians,” and “family planning services” (42 U.S.C. § 254b). Past court cases cited by the USCCB have interpreted similar categories in Medicaid law to require the funding of abortion. Neither the statute governing CHCs, nor PPACA’s text appropriating new money to CHCs contains a Hyde-type amendment limiting funding for abortions. In light of the unambiguous wording of the law, therefore, a federal administrative agency interpreting either law contrary to the statutory language would not win Chevron deference. Neither the Secretary of Health and Human Services (HHS) nor the President can overcome legal barriers created by the clear language of a statute. Good will is no remedy for bad law.

Second, the regulation that does presently restrict abortion funding at CHCs—the regulation that Jost continually relies upon as HHS’ “reasonable interpretation of a law”— is not a regulation interpreting the PPACA or the law governing CHCs. It is a regulation interpreting the annual Hyde amendment, a law which, by Jost’s own admission, “does not specifically cover” the PPACA’s appropriations to CHCs.

For both reasons, a Chevron argument cannot accomplish the task Jost assigns it. It cannot assuage the well founded fears of pro-lifers that new appropriations for Community Health Centers—which, by their statutory terms, must provide categories of services that are consistently interpreted to include abortion—are statutorily available for elective abortions.

Earlier this month, defenders of the new health care law crowed when HHS told Pennsylvania, New Mexico, and Maryland that high-risk insurance pools could not be used to pay for elective abortions. But this series of events only confirmed the USCCB’s legal analysis. It was precisely because the high-risk insurance pools were not governed by Hyde language that states assumed that their federal grants could cover elective abortions. This is exactly the conclusion that pro-life groups predicted states would reach when confronted with broadly worded federal health care mandates without Hyde restrictions.   It is also the conclusion reached by the Congressional Research Service in a June 23, 2010 memo to the Senate Committee on Health, Education, Labor and Pensions.  They found that neither the PPACA, nor the Hyde Amendment, nor the President’s executive order, nor any other law, forbade high-risk insurance pool funds from funding elective abortions.

Pro-choice politicians and abortion providers have reached the same conclusion. The president of the nation’s largest abortion provider, Planned Parenthood,  said last week: “This decision [by HHS to restrict abortion funding] has no basis in the law and flies in the face of the intent of the high-risk pools . . .” Planned Parenthood sent an email to its supporters about the HHS directive stating that “No law passed by Congress forced this decision.” Congresswoman Louise Slaughter sent a letter to HHS on behalf of the Pro-Choice Caucus decrying the federal government’s “narrow[ing]” of the scope of “legal reproductive health care services” available to women. In short, when the plain language of a law mandates coverage of broad categories of medical needs, extant law makes clear that abortion is almost certainly included unless it is specifically excluded.

The fatal blow to Jost’s argument comes from the fact that HHS was able to restrain federal funding for abortion in this specific case only because §1101 contained explicit language allowing it do so (or indeed to set any other requirement it wishes). Crucially, this language does not have broad application across PPACA and is not contained in PPACA’s language about Community Health Centers. Section 1101, as Jost correctly notes, allows the Secretary of HHS to require high-risk pool grants to meet “any other requirements determined appropriate by the Secretary.” Due to this language, there is an argument that the federal regulators are empowered to direct states to exclude elective abortions from these plans for high-risk enrollees—although it is worth noting that the Secretary did so only after a public outcry by pro-life groups.

The Secretary’s response is welcome, and one hopes it will hold up if challenged in court. However, it needs to be stressed that Jost does not grapple with the distinction between the explicit grant of administrative power to the Secretary in §1101 and the absence of similar power in the PPACA’s sections dealing with CHCs. It is also worth noting that the USCCB did not point to the high-risk insurance pools section of PPACA pre-passage, as a prime example of the law’s potential for unfettered abortion funding. CHCs, with their statutory mandates for “family planning” and “gynecology” services are not subject to Secretarial “requirements determined appropriate,” but high-risk insurance pools are. The plain language of PPACA thus supports the power of the President via his executive order to instruct the Secretary to limit abortion funding in high-risk pools (or of the Secretary to limit  such funding of her own authority). There is no similar statutory language to support presidential authority in the case of CHCs (or for that matter, more broadly across PPACA).

Jost must ultimately confront the fact that under PPACA, there is a new status quo respecting direct federal subsidizing of insurance plans that cover abortion. There are already federal tax breaks for insurance plans containing abortion, but PPACA takes us further down the road of federal support for and involvement with elective abortions. Why shouldn’t pro-life people protest when there is a move from the status quo on this matter to something worse?

There is also, sadly, a new status quo on conscience protection. The Senate had the opportunity to apply longstanding conscience protections of the Weldon Amendment to PPACA, but refused to do so. The President’s executive order indicates that he was willing to apply Weldon to the PPACA, but separation of powers means that the President cannot unilaterally insert it into the PPACA in the face of the Senate’s rejection. About this problem, Jost replies only that “many provisions of the Act were not well drafted.” Now that PPACA is passed, then, one would expect Jost and Commonweal to be on the front lines of the effort to get this and other problems resolved fully via the recently introduced Protect Life Act (H.R. 5111). Yet their full-throated support is not yet evident.

Jost finally faults me and the USCCB for writing a “brief that could be used by an abortionist claiming that community health centers must cover abortions.” Yet any person experienced with legislation affecting abortion or conscience protection knows that that is exactly what the wise pro-life lawyer or lobbyist must do while a law is being drafted. Abortion supporters most certainly had a hand in crafting the PPACA. I often dealt with some of the best pro-abortion attorneys during my years working directly in the pro-life movement, and I know from experience that they are adept at the practice of using legislative language in order to forward the practice and funding of abortion. Indeed, they have already started to coach Community Health Centers on ways to provide elective abortions No one should fool himself into thinking that I am making arguments that are not already known to our opponents in this debate.

Pursuing these questions is, far from being cynical, a necessary part of a robust search for truth. Furthermore, Jost and Commonweal have turned a blind eye to facts known by every experienced legal and policy analyst in the pro-life movement—e.g. the pro-choice commitments of so many of the political actors managing the health care bill, and the significance of the Senate’s refusal to adopt Hyde or Weldon language across the PPACA.

All that pro-life groups said—and all that I affirm after looking at the legal back-and-forth—is that between the plain language of the new health care law, its accompanying executive order, the legal precedents relevant to each, Congress’ rejection of proposed fixes, and the political processes leading to the enactment of the PPACA, pro-life citizens and legal experts were right to express grave concern over the final passage of this bill. They had more than reasonable cause to believe that it would move the United States toward a greater acceptance of abortion and the violation of moral conscience.


Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.

In the beginning of the book Forsythe discusses the philosophy of prudence. He describes the thoughts of a number of philosophers, including Aristotle, Augustine, and Aquinas, on prudential reasoning and prudential judgment. While the philosophical arguments are interesting, Forsythe’s main interest is trying to make a practical case for prudence. He does this through analyzing the history of two important political movements—the efforts by William Wilberforce to abolish the slave trade in Great Britain in the 1800s and efforts by President Lincoln to abolish slavery in the United States.

Specifically Forsythe chronicles Wilberforce’s career in public service and favorably comments not only upon his strategic decisions, but on Wilberforce’s charisma and winsome nature. He also describes the legislative steps Wilberforce advocated which ultimately led to the abolition of the slave trade in Great Britain. Wilberforce promoted three types of incremental legislation, bills that prohibited slave exports from specific parts of Africa, bills that prohibited the importation of slaves to specific foreign colonies, and bills that would require more humane treatment of slaves, such as those that reduced the number of slaves that could be carried per ship.

Forsythe also details how Lincoln used prudential judgment in nine of the most important decisions of his Presidency. These include the decision to use force to restore the Union, his 1861 decision to resupply Fort Sumter, and the timing of the Emancipation Proclamation. Throughout the book, Forsythe rightly notes that these incremental measures advocated by both Wilberforce and Lincoln were helpful in allowing both men to achieve their respective long term goals of ending the slave trade in Great Britain and abolishing slavery in the United States.

Forsythe then uses these historical examples to defend the strategy of incrementalism that has been pursued by a number of pro-life groups. Specifically, in the years following the Roe v. Wade decision, many in the pro-life movement realized that it would be politically impossible to enact a constitutional amendment that would ban abortion. As such, many pro-life groups pushed for incremental legislation that would either prevent abortion in certain circumstances or create obstacles that would abortions more difficult to obtain. Such legislation included bans on the public funding of abortion, parental involvement laws, and partial birth abortion bans.

Those promoting this strategy of incrementalism have always argued that it will advance the long term goal of providing legal protection for all unborn children. However, this strategy of incrementalism has still been controversial. Some pro-lifers feel that the passage of incremental laws regulating abortion legitimizes the practice of abortion. Some also think that incremental legislation providers political cover for elected officials who want to court pro-life voters while still keeping abortion legal.

However, in his book Forsythe presents a robust defense of incrementalism. He argues that pro-life efforts to enact incremental laws have accomplished a number of worthwhile objectives. For instance, the debate over incremental laws has served, and continues to serve, an important educational purpose. For instance, the debate in the 1990s about banning partial birth abortion informed millions of Americans about the extreme nature of abortion policy in this country. Incremental laws have also kept the abortion issue alive politically. Most importantly, some incremental pro-life laws, such as parental involvement laws and public funding bans, have been effective at lowering abortion rates.

While Forsythe’s book contains important lessons for all civically engaged citizens, his main audience is clearly people involved with the pro-life movement. Since the Roe v. Wade decision, the pro-life movement has certainly had a tumultuous history. Early on, one could certainly argue that many decisions made by some pro-lifers lacked prudence. Most notably, the bitter fights during 1970s and early 1980s on the proper way to design a Human Life Amendment crippled pro-life progress and caused long-term damage to the pro-life movement.

In the years after the Roe v. Wade decision, many people who joined the pro-life movement had little previous involvement with either politics or policy. To a certain extent, some previous mistakes can be excused due to the lack of political experience of these newly minted pro-life activists. However, in the past 35 years, the pro-life movement has achieved a greater degree of experience, maturity, and sophistication. Good incremental progress has been made on a number of fronts.

In particular, the pro-life movement has made some impressive gains in public opinion with a number of surveys indicating that for the first time, more Americans are willing to describe themselves as “pro-life” rather than “pro-choice.” More importantly, these public opinion gains have been the largest among America’s youth. Planned Parenthood is receiving more scrutiny because of the recent GAO investigation and Lila Rose’s undercover investigative reporting. More states are enacting incremental pro-life laws. Most importantly the number of abortions is declining, between 1990 and 2005 the number of abortions performed in this country fell by 22 percent.

Despite this incremental progress, many pro-lifers are frustrated. Furthermore, while the divisions in the pro-life movement are less visible today than they were 30 years ago, they still exist. As such, imprudent strategies and proposals which hold the promise of big gains can often find a welcome audience, even when a substantial number of veteran pro-lifers express serious skepticism.

In his book, Forsythe diplomatically tries to engage those pro-lifers who are either hostile or skeptical toward an incremental strategy. He ably shows that many leading philosophers and theologians find nothing objectionable about incrementalism. Practically speaking, Forsythe also demonstrates that incremental gains helped bring about the end of both the slave trade in Great Britain and slavery in the United States.

Overall, the pro-life movement is neither blessed with abundant material resources nor substantial influence in elite circles. For this reason, unity is important, and pro-lifers should cooperate as often as they can. Furthermore, pro-lifers should always make an effort to be diplomatic to other pro-lifers pursuing strategies that some might find questionable. However, as we continue our efforts to restore legal protection to all unborn children, all pro-lifers would do well to heed Forsythe’s advice and pursue their work with prudence.


Michael J. New is an Assistant Professor of Political Science at The University of Alabama and a Fellow of the Witherspoon Institute in Princeton, NJ.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Although gun-rights enthusiasts are understandably elated by this result, anyone who views original understanding in constitutional interpretation and modesty in the exercise of judicial power as quintessential judicial virtues must be deeply troubled. The Court’s plurality opinion, written by Justice Alito, eschews original understanding and reflects a lack of fidelity to text. The concurrence by Justice Thomas illustrates the peril of jurists misconstruing complex historical materials.

Building on the historically dubious conclusion that the Second Amendment (“a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed”) contains an individual as opposed to a militia-related right to bear arms established in District of Columbia v. Heller (2008), the McDonald Court determined that the right discovered in Heller was sufficiently fundamental to be incorporated into the due-process clause of the fourteenth amendment and applied to the states. Now all gun regulations, whether enacted in the District of Columbia or by any state or municipal government, are subject to review by federal courts.

A textually unambiguous guarantee of procedural fairness, the due-process clause (“nor shall any state deprive any person of life, liberty, or property, without due process of law”) has of course been abused as a seemingly inexhaustible source of substantive rights invented by the Court over the years. It has also been the means by which the Court has taken certain protections in the Bill of Rights and applied them against state and local governments. Since 1897, the Court has engaged in “selective incorporation,” the piecemeal incorporation of protections found in the Bill of Rights. In McDonald, a plurality of the Court invoked this precedent to reach the result it wanted.

The problem is that the jurisprudence of incorporation has no bearing on the due-process clause. As Justice Thomas pointed out, “All of this is a legal fiction. The notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.” Yet Thomas agreed that the Heller reading of the second amendment should be incorporated. Rather than the plain dishonesty of using the due-process clause of the fourteenth amendment for that purpose, however, Thomas argued that the only sound textual course was to use the privileges-or-immunities clause of that same amendment (“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”).

The flaw with Thomas’s opinion is a real shortcoming in original-understanding interpretation. Working through dense historical materials—and the Fourteenth Amendment’s history is dense—is not something lawyers are trained to do. Thomas made a characteristically principled argument that incorporation was originally designed to take place through the privileges-and-immunities clause. The problem is that his history is all wrong. The most distinguished legal historian at work today is Philip Hamburger (author of the erudite books Separation of Church and State and Law and Judicial Duty), and his forthcoming article in the Northwestern University Law Review conclusively demonstrates that comity-clause rights for free blacks, not incorporation, was the original understanding of the clause. This point is not to argue against any historical inquiry—text and history are the only legitimate sources of constitutional meaning—but it is the reason why judicial modesty is utterly essential when law-office history brings about a revolution in our understanding of the regulation of guns.

There is no question that McDonald dramatically expands judicial power. This decision, in complete absence of textual or historical warrant to move into this area, will result in federal judges exercising what are fundamentally legislative judgments in all areas of gun policy. In his dissenting opinion, Justice Breyer provides a realistic sampling of the questions that will need to be addressed in future litigation:

Consider . . . that countless gun regulations of many shapes and sizes are in place in every State and in many local communities. Does the right to possess weapons for self-defense extend outside the home? To the car? To work? What sort of guns are necessary for self-defense? Handguns? Rifles? Semiautomatic weapons? When is a gun semi-automatic? Where are different kinds of weapons likely needed? Does time-of-day matter? Does the presence of a child in the house matter? Does the presence of a convicted felon in the house matter? Do police need special rules permitting patdowns designed to find guns? When do registration requirements become severe to the point that they amount to an unconstitutional ban? Who can possess guns and of what kind? Aliens? Prior drug offenders? Prior alcohol abusers? How would the right interact with a state or local government’s ability to take special measures during, say, national security emergencies?

Such is the steep price of judicial hubris.

Just as remarkably, McDonald provided no standard for reviewing the constitutionality of these questions. Once a standard is established, one can expect protracted and contentious litigation over all these sorts of questions. How the gun landscape will look in, say, ten years is anyone’s guess. While the Court asserted in Heller and repeated in McDonald that these decisions will not disturb long-established prohibitions on possession of firearms by felons and the mentally ill, bans on carrying guns into schools and government buildings, and the imposition of conditions and qualifications on the commercial sale of arms may be undermined or swept aside.

Because of McDonald, federal courts, not state and local elected officials, will now have the final word on the vast and complex area of social policy involving guns. Neither the text nor the history of the Constitution provides grounds for this radical shift in power. McDonald, alas, stands for the proposition that the excrescence of judicial legislation now has both a liberal and a conservative visage.


Gregory J. Sullivan is a lawyer in New Jersey. He has written for First Things and The Weekly Standard.

Copyright 2010 the Witherspoon Institute. All rights reserved.

It is important to remember that monetary policy reflects the state’s choice to prioritize one set of economic possibilities (e.g., long-term monetary stability) over other options (e.g., the government’s ability to use its money-supply monopoly to bolster employment during recessions). These trade-offs, however, don’t just involve technical economic arguments. They also come down to questions of principle.

The case, for example, for fiat money managed by modern central banks is linked to the conviction that the state’s control of the money-supply should be used to realize particular goals. This helps to explain why part of the Federal Reserve’s charter includes the objective of “maximum employ­ment.” The underlying principle is that economic justice requires the state to go beyond maintaining the rule of law, promoting monetary stability, enforcing contracts, protecting private property, and preserving minimal safety nets.

What, then, are the principles underlying the gold standard? To grasp these, we should recall how the classical gold standard worked in its heyday between 1870 and 1914. During this period, the gold standard gradually linked the different currencies of major trading powers such as Germany, America, Britain and France insofar as all notes and coins of countries adhering to the gold standard were underwritten by and redeemable in specific weights of gold.

The effects were twofold. First, the gold standard facilitated an unprecedented stabilization of prices. Thus, as noted by Lewis E. Lehrman and John D. Mueller, “between 1879 to 1914, average annual CPI inflation [in America] was 0.2 percent, with average annual volatility (up or down) of only 2.2 percent. No other standard comes close in combining low average inflation with low volatility.” A second effect was that each unit of the currency circulating in a country could be equally used for payments in other countries. A common and stable universal currency was therefore created without any need for an international monetary authority.

Apart from generating monetary stability, the gold standard also automatically adjusted balance-of-payment deficits. If a country overextended itself by importing more than it exported, gold left the deficit country to cover the imbalance of payments against nations with surpluses. The money supply in the deficit country subsequently fell, thus reducing demand and providing a brake against inflation. The fall in demand also forced deficit countries to become more competitive. In surplus countries, the gold imports increased the money supply, augmented demand, reduced competitiveness, and thus gradually diminished the original causes of the gold inflows.

Central banks played a critical role in this process. Indeed the entire system relied on close cooperation between the world’s central banks. In surplus countries, the gold standard required central banks to lower the discount interest rate charged to members of the domestic money system in order to reduce the gold inflow. This resulted in gold flowing back to deficit countries. Conversely, central banks in deficit countries would raise the discount interest rate, thereby reducing demand, and averting potential inflation.

Consequently, under the pre-1914 gold standard, modern China could not have built up and maintained its presently large currency reserves. Similarly, neither the Bush nor Obama Administrations would have been able to run huge deficits. Nor would it have been as easy for American consumers to acquire such irresponsibly high personal debt levels.

There were several economic advantages to the gold standard. For one thing, its workings were driven by known rules. Monetary decisions by central banks could therefore be foreseen to a certain extent and were thus more predictable. One downside to the gold standard was the slowness with which the gold supply adjusted to real changes in demand. This impaired gold’s ability to function as a regulating mechanism. Ironically, however, it was soon realized that the gold standard’s regulating effects could be accelerated by measures that removed impediments to the ability of economies to adjust quickly to change. The gold standard therefore created incentives for trade liberalization, competition, and entrepreneurship.

A number of principled considerations were, however, also operative. The gold standard placed a high premium on economic security by reducing the uncertainty and risk that flows from fluctuations in the value of money that have nothing to do with the relative valuation of different goods and services. Constant oscillations in the value of currencies undermine our ability to discern what we find marginally preferable to what is marginally inferior.

Another commitment at stake was the conviction that stable money meant greater economic prosperity for increasing numbers of people. Greater monetary certainty spurred productivity and investment, not least because many long-term contracts benefited from a confidence that prices would remain relatively constant over time. Then there were the ways in which the gold standard bolstered the economic well-being of particular marginalized groups. Monetary stability helps, for example, those who lack the financial sophistication to navigate the shoals of inflation, or who are on fixed incomes (e.g., the elderly and disabled).

At the same time the gold standard also encouraged governments to promote the common good instead of narrow sectional interests. Within nation-states, for instance, the gold standard diminished opportunities for the state to manipulate monetary policy in order to favor those with an interest in inflationist policies.

Likewise, the gold standard also generated a commitment on the part of governments to promoting the international common good. As the German economist Wilhelm Röpke once wrote, the gold standard relied upon the unwritten agreement of central banks and governments “to behave in matters of monetary and credit policy in such a way that this fixed and free coupling remained an undisputed permanent institution, irrespective of trade fluctuations.” This required central banks and governments to prioritize the global economy’s long-terms needs over the short-term exigencies of national economies. It also entailed a willingness to resist popular pressures to revert to a type of monetary nationalism in the face of the fluctuations in employment and growth sometimes generated by the gold standard’s adjustment mechanisms.

We should wonder, though, whether the gold standard demanded too much from governments. As the economist and financial historian Michael D. Bordo pointed out in 1981, most countries on the classical gold standard did not follow the rules of the game. During economic downturns, governments were sorely tempted to escape those strictures of the gold standard that facilitated the process of downward correction that adjusted general living standards to the reality of a lower level of economic well-being. Even before 1914, governments knew that abandoning the gold standard would allow an expansion of credit and public spending not possible under the pre-1914 gold standard.

This situation was exacerbated by two factors. First, in the conditions of democracy, monetary authorities became more susceptible to popular pressures to use monetary policy to provide short-term fixes to immediate economic problems. Second, the rise of neo-Keynesian economic theories encouraged politicians and central bankers to adopt monetary policies and interventionist strategies that routinely violated the gold standard’s disciplinary boundaries. In his Tract on Monetary Reform (1923), Keynes demanded that Britain abandon the gold standard because, in his view, it required countries to pursue deflationary policies just when expansionary measures were needed to combat rising unemployment. On these grounds, Keynes dismissed the gold standard as a “barbarous relic.” Underlying Keynes’ argument was a political concern: that liberal democracies might falter under the impact of mass unemployment. Others, however, such as the distinguished French economist Jacques Rueff disagreed. Against Keynes, Rueff insisted that unless the gold standard was allowed to work its anti-inflationary magic, many people would turn to demagogues to save the social order from inflation’s destructive effects.

Is a restoration of something like the pre-1914 gold standard possible? The domestic opposition from those with vested interests in inflationist and interventionist policies would be formidable. Even if that was overcome, the gold standard’s reinstatement on an international level would require a nucleus of countries to agree to adhere to it—something which happened rather spontaneously in the nineteenth century through a series of unilateral decisions by individual countries. Once this had occurred, adherents of a re-established international gold standard would have to insist upon all members maintaining maximum monetary discipline as well as freedom and stability in foreign exchange markets. Countries unwilling to adhere to these rules could not be admitted to the club.

There is of course no such thing as a perfect monetary system. All involve trade-offs. Each has its disadvantages. Nor is something like the pre-1914 gold standard the only alternative to the present fiat money system. Today most politicians, central bankers, and economists regard the gold standard as neither desirable nor possible.

What cannot, however, be denied is that the case for the gold standard goes beyond efficiency arguments. It embodies an emphasis on limiting arbitrary state action, promotes the longer-term economic well-being of less powerful groups, encourages prudence and a concern for lasting stability over urges “to just do something” (however ineffective or counterproductive), and generates a concern for the national and international common good over more narrow sectional interests.

Such principles and commitments should surely be demanded of any monetary system.

Samuel Gregg is Research Director at the Acton Institute. He has authored several books including On Ordered Liberty, his prize-winning The Commercial Society, and Wilhelm Röpke’s Political Economy.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Conversely, Commonweal has extended every benefit of the doubt to the opinions of one professor, Timothy Jost, who not only has no record of cooperation with Catholic moral and policy interests along the consistent ethic of life, but seems to regard Catholic contributions to moral reasoning about law with animosity, comparing Catholic influence to the establishment of an Iranian theocracy. Furthermore, Jost seems to be a strident partisan across the board, a condition best (and hilariously) exemplified in his May 17 editorial for Politico, wherein Jost wrote how “unimaginable” it would be for American voters to want Republicans back in government when, under the Democrats, the “economy has come roaring back.”

Meanwhile, The USCCB’s uniquely nonpartisan voice—even in the midst of some of the nastiest inter-party exchanges in recent history—successfully held together advocacy against killing the unborn with advocacy for expanding health care insurance to all Americans. Yet Commonweal, it seems, would not be satisfied with anything less than a full-throated blessing of whatever the House majority decided to offer pro-life Americans while in the throes of desperate, last-minute negotiations.

Commonweal’s reliance on Jost became more and more troubling as Jost persistently failed to address the arguments contained within the USCCB’s legal analysis and Commonweal failed to hold Jost to account. Instead, Commonweal and Jost have continued to suggest that the USCCB reacted to the PPACA in an alarmist fashion. Yet the law does identifiably weaken protections against federal involvement in abortion, and weaken federal protection for freedom of conscience. Given both the continuing high number of abortions in the U.S. today, and the way in which rights of conscience are increasingly characterized as the enemy of women’s rights (most notably in a 2008 letter from then-Senator Obama to the Secretary of Health and Human Services), why shouldn’t the USCCB protest against problematic portions of the PPACA?

This law will affect every American, every health plan and every health care entity from sea to sea. It will, as Commonweal surely knows, reframe the health care landscape for generations to come. With regard to the importance of the specific dispute about whether abortions might be funded in Community Health Centers (CHCs), for example, a recent article on CHCs in the New England Journal of Medicine reports that 5% of Americans currently rely on CHCs for their health care, a figure that could balloon to 40 million people under the new law. Abortion-rights groups are also aggressively promoting a combination of accounting gimmicks and community activism in order to get CHCs to offer elective abortions. The USCCB’s lawyers and policy analysts are responding proportionally to the size of the threats to conscience and to respect for vulnerable human life.

We must keep in mind that the Senate refused to incorporate existing law—namely the Hyde amendment’s protections against abortion funding and the Weldon amendment’s protections of conscience—into the PPACA. On Dec. 8, 2009, an amendment that would enforce Hyde limits on the PPACA was tabled (in a 45-to-54 vote), and the Senate adopted the “Nelson-Boxer language” instead. Regarding Weldon conscience protection language, Senator Reid decided not to include it in the bill he drafted behind closed doors in late November and December. Rather, different language about abortion funding and conscience was adopted, language accepted by Senators and interest groups robustly supportive of legal abortion. This is not meaningless. Rather, a logical observer would conclude that this series of events renders it highly unlikely that the final language of the PPACA—as Jost and Commonweal claim—does in fact does include protections either similar to or as strong as Hyde- and Weldon- type protections.

Indeed, the naïve hopes of Commonweal and Professor Jost were almost immediately disappointed. During the week of July 12, the state insurance commissioner for Pennsylvania announced that the federal government will be providing 160 million taxpayer dollars to help pay for medical services in the new high-risk insurance program established by §1101 of the PPACA—including virtually unlimited abortion services. The Department of Health and Human Services has already issued a statement denying this, but they have offered no documentation as to why Pennsylvania’s published proposal does not mean what it says. The only sure solution for this morass, and for similar problems likely to arise in the other 49 states, is to amend PPACA with a clear statutory ban incorporating the Hyde amendment policy. Neither Commonweal nor Jost has explained why they don’t simply endorse this clear solution instead of straining to argue—with growing implausibility—that doing nothing achieves the same thing.

We must also remember that executive orders can’t change legislation; they can only enforce and implement what’s already there. Yet this order repeatedly claimed to describe PPACA’s effects. Section one of the order claims that the “Act maintains current Hyde amendment funding restrictions.” Section two says that the Act “specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services … and … imposes strict payment and accounting requirements.” Section three tells us that the “Act establishes a new Community Health Center (CHC) Fund within HHS” and claims that the “Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers.” Again, considering the nature of executive orders, it appears that this one “doth describe too much.” A closer look indicates that indeed it does misstate what is in PPACA, as will be noted below.

I do not mean to claim here that the matter of all of PPACA’s effects regarding federal funding for abortion and freedom of conscience is an open-and-shut case. In order to “read” PPACA, one has to perform a fair amount of legal research. For example, one has to inquire how judges have interpreted laws containing similar, open-ended mandates (e.g. “preventive care,” “health services related to gynecology”). Jost does not engage in this inquiry, he simply writes these concerns off as “irrelevant.” In order to determine whether the limitations of the Hyde and Weldon amendments apply to the PPACA, one must not only scrutinize the PPACA language on its face, one must also look at the Hyde and Weldon amendments in their original settings. But Jost shirks this legal task as well.

The USCCB’s publicly available memoranda regularly demonstrated the appropriate amount of legal analysis and a healthy dose of “legal modesty” even after deploying facially compelling legal arguments. In its formal “Legal Analysis” (March 25, 2010) it uses language like “courts are highly likely to conclude,” that certain regulations are “highly likely to be found unenforceable,” and that the President’s Executive Order “would almost certainly be struck down as exceeding [his] authority.” Jost’s analysis, however, not only fails to respond to the USCCB’s major points, but also tends toward the unequivocal: In an NPR interview, after a question about whether Hyde-style protections were absent from various sections of the PPACA, he responded: “Well, that’s just simply not true.” He further called the USCCB’s reading of the PPACA the product of an “unwarranted belief that [members of Congress] are proceeding in bad faith,” and called Congressman John Boehner’s statements about PPACA allowing federal funding of abortions the “biggest…lie” told at the health summit.

Jost’s personal website lists 63 media appearances and 15 essays on the subject of health care reform. Yet, despite the volume, and his attempts in several essays to speak directly to the USCCB’s arguments, he never directly answers the following questions:

First, how does Jost get around the plain language of Hyde amendment—that its limits apply only to monies appropriated under “this Act” (the Labor/HHS Appropriations Act) or to monies put in a trust fund funded by “this Act”—and insist rather that the money appropriated by a different act, the PPACA, is also governed by Hyde? The PPACA specifically appropriates its own money (section 10503) for Community Health Centers. Both the PPACA and the President’s executive order state that a “new” fund is being both created and funded by the PPACA (which new fund is not a trust fund funded by the Labor/HHS Appropriations Act). Jost ignores the plain language of the executive order and simply asserts without proof that the funds appropriated for CHCs are “not segregated funds.”

Second, how can Jost state that 1970’s HHS regulations restricting the funding of abortions, which regulations derive their authority from (and explicitly reference) the Hyde statutory language, are also authoritative with respect to the new CHC fund created by the PPACA? He is overlooking basic administrative law. The USCCB simply has the better of the argument on the possibility that the PPACA money appropriated to CHCs—who are legally mandated to provide “health services related to … obstetrics or gynecology,” (see 42 U.S. C 254b)—will, without attached Hyde protections, be steered toward elective abortions.

Third, as a backup argument regarding CHCs, Jost raises the President’s executive order. But the law on separation of powers holds that such orders may not override specific statutory directives. Will Jost ever engage the law on this matter?

Fourth, because he fails to credit basic legal principles on separation of powers and administrative law, Jost also fails to engage the USCCB’s argument that federal court decisions interpreting broadly-worded federal health care mandates have required abortion funding when no specific limits were attached to the mandates. He states in his May 24 Commonweal piece that these cases “have no relevance,” because there are abortion-limiting federal regulations and an executive order in place. But as I have noted above, the regulation does not likely apply and the executive order is powerless in the face of a contrary statute.

Fifth, Jost can never bring himself to acknowledge that a new line has been crossed by the PPACA’s allowing federal subsidies to flow to health plans covering abortions. True, certain kinds of federal monies cannot pay for an abortion directly, and individual plan subscribers will pay separate premiums for abortion procedures (§1303(b)(2)), but a line has been crossed nevertheless. Pre-PPACA, the federal government would not help plans including abortion to exist and to stay in business. Post-PPACA, it will. This is not a moral line that bothers Jost or Commonweal. But to insist it should bother no one is both arrogant and naïve. It represents an incremental move toward the normalization of abortion as a “medical service.” In a country where abortion is all too frequent, it is yet another step in the wrong direction.

Sixth, regarding conscience protection, Jost never directly addresses the PPACA’s failure to protect against government discrimination based on an unwillingness to participate in abortion. The Senate’s failure to include it—by refusing to incorporate Weldon-type language—does not mean nothing; less protective language leaves religious health care providers, at the very least, in an uncertain position about their futures. Jost’s claim that §1303(c)(2) of the law suffices to prevent such government discrimination makes no sense. That section provides that the PPACA is not intended to overturn conscience protections in other federal laws. It does not apply to this new law. Nor can the President’s executive order pretend to make it so.

Overall, Commonweal and Jost succumbed—naively in my opinion—to their own and to Congressional leadership’s ardent desire to believe that everything will be just fine once the PPACA goes fully into effect. More might be offered regarding the oversights and misinterpretations found in Jost’s analyses. Enough has been said, however, to conclude at least this: the USCCB’s conclusion that the PPACA fell morally short remains measurably more convincing than Commonweal’s and Jost’s conclusion that the bishops were too scrupulous and alarmist in their reading of the PPACA.

Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.

DOMA cannot be properly understood outside its historic context. Congress passed DOMA, a statute that is as simple as it is brief (consisting of barely more than 350 words), to prevent this judicial tyranny. DOMA did just two things: in section 2 it permitted states to deny recognition to any “relationship between persons of the same sex that is treated as a marriage under the laws” of another state; and in section 3 it defined “marriage” for purposes of all federal laws and regulations to be “only a legal union between one man and one woman as husband and wife.”

Neither section took any notice of which state institutions might be responsible for introducing the recognition of same-sex marriage. But the law as a whole was a response to the looming threat, by then already met and rebuffed in Hawaii, of judges imposing the agenda of same-sex marriage on the country, state by state. Indeed, in the event that democratic action caused same-sex marriage to become widely accepted, and recognized in the law in most of the states, one might expect DOMA to be repealed in its entirety. But that would be for Congress to do, following the actions of other elected legislatures at the state level. And in 1996, when DOMA was passed, no state legislature had seen fit to upend the entire meaning and history of marriage by fabricating the fraud of permitting persons of the same sex to “marry.” In the fourteen years since DOMA’s passage, only one legislature (New Hampshire’s) has acted to authorize such marriages entirely on its own, while another (Vermont’s) did so only after being pushed as far as same-sex ‘civil unions’ by its state’s judiciary. And in every state in which the question of permitting same-sex marriage has been put directly before the people, it has been rejected by popular majorities, in most cases acting in their sovereign capacity as constitutional lawgivers. The sine qua non of same-sex marriage in the United States has been the tyranny of the American judiciary, while republican constitutionalism has been fighting a rearguard action.

One of Judge Tauro’s defenders might say that since it has already been decided that same-sex marriages may take place in Massachusetts, the only question before Tauro’s court was whether the federal government could decline to treat same-sex couples as married when the state has so treated them. “The authority of the Commonwealth,” after all, has “recognized same-sex marriages among its residents,” he noted. But what “authority” worked this recognition in Massachusetts? Why, its judiciary, of course, which has infamously frustrated the operations of democracy at every turn.

Thus it takes a certain cool nerve for Judge Tauro to argue that DOMA broke with a tradition of federal restraint from meddling in “states’ areas of sovereign concern,” and to say as well that “DOMA set the Commonwealth on a collision course with the federal government in the field of domestic relations,” when DOMA predated the Massachusetts judiciary’s invention of a right to same-sex marriage by seven years. Who was it who set the collision course? Not the bipartisan national coalition that enacted DOMA as a purely defensive measure, and not the sovereign peoples of the states or their elected representatives who are responsible to them for the shape of their constitutional orders, and who have acted to preserve authentic marriage in the law. No, it has been the judicial ideologues who have determined to attack the defensive bulwarks of sovereign power, and to play at being sovereigns themselves.

It is worth noting, as Ed Whelan has done, that the Obama administration (guided by Solicitor General Elena Kagan, now nominated to the Supreme Court) explicitly abandoned the argument that marriage is tied to procreation and that Congress might thus decline to recognize state-sanctioned same-sex marriages. But had the argument been preserved, there is no reason to believe it would have prevailed in Judge Tauro’s court. He was plainly intent on building the next story of the same-sex marriage edifice on the foundation built by the usurper jurists who have come before him. And like his predecessors, he has found it necessary to beg important questions and to hold others’ views “irrational” without any real ratiocination of his own.

Quoting Supreme Court precedent, for instance, he allowed that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law. . . .” The ellipsis is his, but it conveniently conceals that even the Justice who originally said this (John Paul Stevens) knew that the traditional view of morality espoused by democratic majorities does prevail, unless a countervailing constitutional ground for overturning it is produced by the law’s challengers. Judge Tauro provided no such ground, but was content to leave the impression that “legislating morality” is not, in itself, possible in a constitutional democracy. This he himself contradicted, holding that Congress is bound by “historically entrenched practices”—that is, traditions of its own making that he invested with moral significance—and also expressing high moral dudgeon about the putative motivations of the legislators who crafted DOMA, presuming to instruct the Congress in precepts of constitutional morality. It is only judges, it seems, who may use the law for purposes of legislating morality.

Judge Tauro is certain, for instance, that DOMA somehow “targets” persons of a certain “sexual orientation” as members of a “group of which [Congress] disapproves”—indeed, has an “animus” against—and which it therefore wants to “disadvantage” in the law. But this is not what DOMA is about at all. Instead it is the mildest of all possible measures that Congress could have taken to defend marriage as human civilization has always known it. It attempts to cabin a judicial revolution in those states in which it occurs, and to head off the sorts of claims that would spread the revolution, such as same-sex couples moving from one state to another and saying that, after all, in their former domicile they had jointly filed their federal income taxes as married.

There is no “animus” in such legislation. But Judge Tauro sees nothing else, because he has already concluded that the difference between same-sex couples and opposite-sex couples is “a distinction without meaning.” Of that moral conclusion the judge is quite sure, but there is no telling what is the ground of his certainty. All we know is that “traditional morality” cannot stand against it. Perhaps it is novelty alone that suffices for the victory of one moral view over another. But who made our judges the pioneers of society’s moral “advancement”? And if, thanks to some other judicial pioneers, polygamy comes to be legalized in one of the states, would it be permissible for Congress to legislate that only monogamous marriages were recognized under federal law? Or would that too be “a distinction without meaning”? Time may tell that tale as well.

Judge Tauro’s rulings were restricted to section 3 of DOMA, concerning the status of same-sex couples under federal law and policy in states permitting them to marry. But his logic would hold section 2 on interstate recognition unconstitutional as well, notwithstanding his repeated view that states may determine the right to marry in different ways. Holding that no rational distinction can be made between same-sex married couples and opposite-sex married couples, the judge “finds that DOMA induces the Commonwealth to violate the equal protection rights of its citizens.” True, he predicates this holding on the fact that, under Massachusetts law, there already are same-sex married couples. But it is a short step from such reasoning to the conclusion that, if one such Massachusetts couple moves to West Virginia, their new domiciliary state cannot rationally deny them a recognized status that their former state already accorded.

“Married in Massachusetts, married everywhere” is the conclusion Judge Tauro invites. And it is but one more step beyond that to “marriageable in Massachusetts, marriageable everywhere,” with the equal protection clause becoming the source of a federal constitutional right of same-sex couples to marry. This is the outcome almost certain to come from the federal trial of Perry v. Schwarzenegger in California, where the sovereign act of Proposition 8 hangs in the balance and a decision is expected any day from Judge Vaughn Walker. But Judge Tauro, in his smaller way, has signaled his own eager enlistment in the revolutionary vanguard of the American judiciary, ready to instruct the little people, who used to be the self-governing citizens of the United States, in the moral categories commanded by progress.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.
An earlier version of this article misstated the number of states in which same-sex marriage has been adopted by legislative action.

Martinez’s importance derives not so much from any dramatic extension or rewriting of constitutional doctrine, but from the shared mindset that appears to have animated the law school’s actions and the Justices’ interpretation and evaluation of those actions as reasonable. Before exploring that mindset, though, we need to clarify what this case is not. CLS did not set out to defy a law school edict that all student groups accept “all comers,” nor was CLS aiming to be supported by taxpayer funds. The evidence suggests that CLS was targeted for exclusion based on the content of its particular membership policy, and the case was never about money.

On the first point, though the Court treated the law school’s policy as though it requires all student groups to accept any student who wishes to join, the procedural history is murky. The evidence in the case suggests that the denial was made pursuant to a school policy prohibiting discrimination on several grounds, including religion and sexual orientation. Ignoring the applicability of this policy in favor of a purported “accept all comers” policy was a significant move by the Court, for it is much more difficult to portray as “viewpoint neutral” a policy that prohibits discrimination based on sexual orientation or religion compared to a policy that requires completely open membership. A viewpoint-neutral policy is much easier to defend against First Amendment challenge. The Court pinned its analysis on the fact that, during the course of litigation, the parties jointly stipulated that the law school has an “all comers” policy. As the dissent points out, the stipulation did not indicate whether the policy was applied to—or even in effect for—the law school’s denial of CLS’s request to be recognized as a student group. The so-called “all comers” policy had not been mentioned, much less put down in writing, until litigation had already begun. The fact that many student groups at the law school espouse belief-based membership requirements shows, at a minimum, that any such policy was not enforced against any group other than CLS.

Second, while it is easier to dismiss the liberty claims of a group when the “liberty” espoused is the right to support at taxpayers’ expense, the funding in this case was minimal. But the consequences of de-recognition were not. CLS lost access to reserved meeting space, school communication channels, student orientation fairs, and student activity funds. Yes, CLS was free to exist, to meet off campus or to scrounge for (and perhaps pay for) on-campus meeting space when all other student groups’ needs were met, but CLS was effectively cut off from the life of the university, from easy access to student email, from the visibility that is the life-blood of organizations hoping to thrive in the marketplace of ideas that is supposed to be at the center of student life. As CLS noted in its reply brief, “to university students, the campus is their world,” and “the right to meet on campus and use campus channels of communication is at least as important to university students as the right to gather on the town square and use local communication forums is to the citizen.”

So if the significance of Martinez cannot be explained away as the enforcement of a neutral open membership requirement or as a straightforward government funding case, what are the case’s lessons? Put simply, the case is a lesson in the legal norms surrounding dangerously amorphous concepts such as “diversity” and “discrimination,” and is an example of how those concepts can contribute to a robust, thick conception of the common good . . . or not. There are central questions that do not even appear to be on the radar screens of universities, courts, or other decision-makers that are shaping the course of these conversations: Is “discrimination” always bad? If diversity is an important value in our society, where does associational diversity rank? Does our framework of liberty include the right to exclude? The factual history and legal analysis of Martinez leave us to wonder whether we even have the resources and inclinations as a society to engage these questions, much less to draw meaningful distinctions among types of discrimination.

Standing up for associational freedom need not crowd out the legitimate place that anti-discrimination norms hold in a society that has admirably labored to remedy past injustices toward, and continuing marginalization of, certain segments of society—including gays and lesbians. At the same time, anti-discrimination norms can corrode the core beliefs that animate associational life.  In this regard, CLS sensibly emphasized before the Court that its membership policy focuses on beliefs (e.g., does the student affirm Christian teaching?), not status (e.g., their sexual orientation), and that the law school could constitutionally enforce a policy that prohibited groups from discriminating based on status. This was a sensible distinction to concede, for while a coherent group identity requires an ability to select leaders who share the group’s beliefs, a state institution committed to equality need not offer its support to groups dedicated to the categorical exclusion of racial, ethnic, or sexual minorities.

The Martinez Court did not buy the distinction. The majority observed that policing a distinction between status on one hand, and conduct or belief on the other, would present the law school administration with a “daunting” task. The Court then invoked Lawrence v. Texas (the case that is the proverbial gift that keeps on giving), noting that “our decisions have declined to distinguish between status and conduct in this context.” The Martinez Court quoted Lawrence’s reasoning that “when homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination.”

A religious student group’s right to participate in the life of the university without jettisoning its animating beliefs may seem to raise starkly different considerations than the state’s power to criminalize sexual conduct engaged in primarily by a certain category of individuals, but apparently the status-conduct distinction is no longer viable in either category. Not surprisingly, the Martinez Court’s application of Lawrence in this context did not escape the notice of the plaintiffs looking to overturn California’s same-sex marriage ban, who promptly filed a letter with the trial court in that case, announcing that the Supreme Court has now “held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class.” Whatever the collapse of the conduct-status distinction may mean for marriage, it does not bode well for associations seeking to maintain fidelity to beliefs that include the disapproval of homosexual conduct.

Equating a belief-based membership policy with status-based discrimination may also reflect a view that religious groups such as CLS are motivated by an exclusionary animus. Justice Stevens, in his concurring opinion, notes that the law school’s “all comers” membership requirement “may end up having greater consequences for religious groups . . . inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths” (emphasis added). Note what this phrasing communicates about the Justice’s mindset. I have never met a CLS member or leader who desired “to exclude students of particular faiths.” They desire to engage in the mutual formation and expression of truths held in common. A desire to exclude is not the point of the project, nor is the exclusion aimed at “particular faiths.” Moreover, the CLS membership policy is not aimed at gays and lesbians specifically, but at the affirmation of a Biblical view of sex. A CLS leader indicated to me that no student chapter has ever been confronted with a situation where they needed to remove an openly gay student from leadership; student chapters regularly remove heterosexual students from leadership for engaging in extramarital sex. These exclusions are a consequence—and usually a consequence that is neither celebrated nor trumpeted—of a commitment to meaningful inclusion.

But Justice Kennedy couldn’t see the force of these arguments and argued in his concurring opinion that if “students were required to avow particular personal beliefs” as a condition of membership, this “might undermine the principle that in a university community . . . speech is deemed persuasive based on its substance, not the identity of its speaker.” The Justice reminds us that “the era of loyalty oaths is behind us,” and a school “quite properly may conclude” that a “belief-affirming requirement” could be “divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”

One hardly knows where to begin in addressing Justice Kennedy’s assumptions about the nature of meaningful group identity. Suffice to say that, under his reasoning, there would be no student groups dedicated to the pro-life or pro-choice causes, to environmentalism, to particular political platforms, or to any substantive position on a contested issue. There would only be groups classified by subject matter. That’s certainly one vision of associational life, but it has very little connection with the historical American vision. Justice Kennedy, meet Tocqueville.

Our struggle to define and demarcate “discrimination,” to identify the sort of diversity that is conducive to a vibrant, participatory, and just society, and to figure out how formal legal norms can support these projects is primarily a political inquiry, not a constitutional one. The Martinez Court’s holding has pushed the constitutional dimension further from view, and the Court prudently recognized that its decision is not the final word, explicitly cautioning against confusing the advisability of the law school’s policy with its constitutional permissibility. The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.


Robert K. Vischer is associate professor at the University of St. Thomas Law School in Minneapolis. He is the author of Conscience and the Common Good: Reclaiming the Space Between Person and State (Cambridge University Press 2010).

Copyright 2010 the Witherspoon Institute. All rights reserved.

The older version of living constitutionalism was famously defended by Justice William Brennan in his 1985 speech at Georgetown University entitled “The Constitution of the United States: Contemporary Ratification.” In that speech Brennan rejected calls for a jurisprudence of “originalism” and instead insisted that the constitution should be interpreted in light of contemporary values. Brennan strictly averred, however, that these contemporary values must not simply be the judge’s own values. Rather, the judge’s task is to discern the community’s current interpretation of the constitution, to be guided by the public’s contemporary values, and not by his own idiosyncratic beliefs, in deciding constitutional cases.

The problem is that often a constitutional case demonstrates the existence of an important clash of values within the community itself. Frequently, such a case will involve a clash between a majority whose values have been enshrined in law or policy through the democratic process and an individual or minority that cannot prevail politically and thus has had recourse to the courts. A judge who invokes the “living constitution” to invalidate democratically enacted policy in such a case—and this is a use of living constitutionalism that its proponents have not been reluctant to embrace—is not finding a solution based upon the community’s values. He is rather siding with one part of the community over another, and, again, in many cases siding with a minority position over a majority position. In view of this conflict within the community, and hence the inability of “community values” to give him any clear guidance in the dispute before him, he is deciding which set of values he agrees with or thinks more just and ruling accordingly. That is, he is imposing his own values, which is precisely what Brennan had said must not be done.

In some recently reported and widely defended comments, Supreme Court nominee Elena Kagan has gone much further, suggesting that judges may properly be guided by their own values in deciding cases. In a 1995 review of Stephen Carter’s The Confirmation Mess, Kagan approvingly quoted Carter’s claim that “the interpreter’s own experience and values become the most important data” at a “crucial moment” that arises in most cases heard by the Supreme Court. Then, speaking clearly for herself, Kagan adds that “it should come as no surprise by now that many of the votes a Supreme Court justice casts have little to do with technical legal ability and much to do with conceptions of value.” According to Carter, this is the proper mode of resolving controversial questions such as “flag burning, segregated schools, and executive power,” and Kagan adds that one could cite “countless more” examples.

Supporters of Kagan’s nomination have defended her by pointing out that her views are widely shared by members of the American legal left. In fact, her position is not in principle different than that of President Obama last year when he contended for the role of a judge’s sense of “empathy” in deciding important cases. After all, a judge’s values will inexorably influence which litigants receive the benefit of his empathy. In her book review Kagan reveals herself as, if anything, an even more ardent judicial activist than her presidential patron. In defending his theory of judicial empathy, President Obama went out of his way to insist that the proper legal answer would be clear to a judge or justice in the vast majority of cases, but that empathy would have to come into play in the handful of truly difficult cases that the Court must confront from time to time. In contrast, as the language quoted above indicates, Kagan thinks that a justice’s own values and experiences, and not technical interpretations of the law, will be the most important considerations in “many” and perhaps even “most” cases the Court must resolve.

Kagan’s new living constitutionalism, according to which individual jurists breathe the life of their own meanings into our fundamental law, is even less defensible than the earlier version articulated by Justice Brennan. It is not even an accurate description of what Supreme Court justices do, or at least not an accurate description of how they present what they do. One can seek almost in vain for examples of Supreme Court opinions in which the author even refers to his own experiences and values, let alone deploys them as the decisive considerations for the case in question. In the few cases when such considerations are mentioned, they are often raised so that a Justice can demonstrate his personal sympathy with the side for which he cannot, for legal and constitutional reasons, render judgment.

This is not to say that justices are never influenced by their own values in their work. Any astute observer, by discerning the weakness of the legal reasoning deployed in many cases, can reasonably conclude that the justices could not have been guided by anything other than their own values. The unwillingness of justices to state their personal reasons for the public record, their insistence on crafting opinions in terms of objective legal analysis, suggests that they know that the personalized justice advocated by Elena Kagan cannot stand the light of day. They know that to embrace it openly would be to destroy the Court’s legitimacy by openly flouting long-established, deeply-rooted American expectations about the role of courts in a constitutional democracy.

The idea that judges should be guided by their own values in rendering judgment is not one that anyone can honestly and consistently embrace. For if liberal judges may properly be guided by their own values, then conservative ones can be as well. But does anyone really believe that if a majority of conservative justices were to overturn, say, Roe v. Wade, simply on the basis of the justices’ own moral convictions about abortion, Elena Kagan and her supporters would not complain bitterly about both the outcome and the illegitimacy of the reasoning? In the face of such a difficulty, the proponents of Kaganism must either admit that, as a matter of principle, judges should not be guided by their own values, or claim that only liberal judges may properly be guided by their own values. To admit the former is to surrender their position. To claim the latter is to reveal their jurisprudence as a barefaced exercise of power.


Carson Holloway is an Associate Professor of Political Science at the University of Nebraska at Omaha and the author of The Way of Life: John Paul II and the Challenge of Liberal Modernity.

Copyright 2010 the Witherspoon Institute. All rights reserved.

Why is the conscience issue so neglected? One possible reason is that conscience violations are less tangible than the destruction of a living human being. Furthermore, the area of conscience protection has many moving parts, which can be hard to monitor. Conscience protection laws can shield both the religious and moral objector or just the former; they might cover many different forms of involvement (providing, referring, etc.) in one or more services (abortion, euthanasia, birth control, etc.); they could cover one or more sets of actors in the health care field (individual providers, hospitals, insurance companies, etc.) against discrimination by one or more authorities (government entities, employers, health plans, etc.). There are also various theological and philosophical grounds for different conscience claims; these might range from an objection to killing (easy to grasp) to an objection to impairing the normal functioning of the human reproductive system (more difficult for many to grasp in a world awash in birth control). Finally, there is the seemingly insoluble dilemma posed when the demand for legal conscience protection is characterized as a contest between “your right to refuse” and “my right to have.”

But conscience protection merits increased attention, particularly in the context of legislation such as PPACA which contains an extraordinary array of new mandates affecting every player in American health care—governments, insurance exchanges and insurance plans, hospitals and clinics, doctors and employers, and every single health care consumer. Some new mandates include language (“essential health benefits,” “preventive services”) which regulatory agencies and judges might easily construe to include medical services objectionable to a wide swath of individuals and institutions. PPACA furthermore leaves a good deal of discretion to federal agencies about standards for qualifying doctors or institutions or insurance companies, without conditioning that discretion upon respect for individual or institutional conscience.

It is not too much to say that—unamended—PPACA threatens the continued existence of institutions deeply embedded in the American health care system, including nonprofit hospitals, clinics and social services. These are the collaborative efforts of professionals and staff dedicated to an unusual degree to the common good. Often, they are formed around a thick moral or religious identity. They benefit a significant portion of the population, but frequently focus especially on service to the poor and underserved. If not for these types of institutions, more and more of the work of caring for the sick, the poor, and the marginalized would fall to the government or simply go undone.

Many institutions in need of conscience exemptions provide a level of health care characterized by a commitment to treating the whole person, body, mind, and spirit. They take quite seriously their professions’ demands in the way of training, judgment and integrity. They sometimes assume a more critical stance toward health care practices supported by large pharmaceutical corporations or unregulated industries. such as assisted reproductive technology. In short, they are communities of dissent playing an important role in the health care landscape.

For these reasons, such institutions should be protected for what they are; our social world would be worse off without them. Their dissenting views on what many regard as marginal issues—contraception, for example—should be respected, and a failure to protect them on marginal issues threatens to have even more serious consequences. For the arguments for coercing objecting providers and institutions to cooperate with services to which they object—such as contraception—are frighteningly applicable to services like abortion. If a religious employer is required to pay for insurance coverage of contraception on “gender discrimination” grounds (as prescription contraceptives are made only for women) it is natural to suspect that mandated coverage for abortion (as a procedure performed only upon women) is not far behind.

What, then, are some of the key flaws in PPACA where conscience is concerned? To be sure, section 1304(b)(4) of the PPACA prohibits plans that qualify to participate in state health insurance exchanges from discriminating against any health care provider or facility because of its unwillingness to provide, pay for, provide coverage of or refer for abortions. It does not, however, encompass refusals to train for abortions, nor does it protect providers or health care entities against discrimination by various government entities, or institutions receiving federal funds. These groups remain free to compel providers to cooperate in the provision of controversial interventions. Further, section 1311(c) of the PPACA indicates one scenario in which the absence of protection against discrimination by the government is a threat to conscientious objectors. This section grants the executive branch of the federal government the authority to determine providers in health care plans to some extent, but without any protection for providers with conscientious objections. The president’s executive order could have, but did not, take care of this lacuna.

PPACA does offer important protections of conscience with respect to end-of-life care: governments at all levels are prohibited from discriminating against conscientious objectors under §1553 of PPACA as to assisted suicide, mercy killing, and euthanasia. But other medical services are not covered, a disconcerting omission.

PPACA further failed to state that existing state conscience protections are not preempted by the federal law, even while it did protect against federal preemption of state abortion laws regulating abortion or abortion coverage (§1301(c)(1)). And it failed to assure individuals or institutions the ability to purchase health care insurance consistent with their moral or religious conscience.

PPACA’s conscience protection flaws must be viewed against the backdrop of the law’s new mandates, new funding streams, new categories (e.g. “preventive” and “essential” services) and new powers vested often in the Secretary of Health and Human Services (HHS). It is also instructive to understand how many conscience exemptions are already contained (either in authorizing or appropriating legislation) in other federal laws, but are not in the PPACA and therefore not applicable to its many new mandates and funding streams. A comprehensive conscience amendment proposed by Senator Tom Coburn, containing many of the conscience protections found in other federal programs, was rejected in the Senate. Thus, for example, while §1303(b)(1) provides that abortion cannot be considered an “essential health benefit” under the new law, it does nothing to exclude abortion from being included within other categories of mandated services such as “ambulatory patient services,” “prescription drugs,” or “preventive services.” All of these categories the Secretary of HHS is authorized to populate under §1302(b). Nor does §1301(b)(1) provide that other procedures or services inimical to religious or moral convictions (e.g. sterilization, contraception, genetic testing, new reproductive technologies) may not be characterized by the Secretary as mandatory benefits under any one of these categories, including “essential health benefits.” The president’s executive order also failed to so direct HHS.

The precedent that will be set by the implementation of PPACA is also crucial. Even in a country increasingly marked by government regulation, PPACA represents a sudden and significant increase in the powers of the regulatory state. The implications for citizens’ and institutions’ abilities to live with personal integrity and the freedom to make decisions consonant with a long and deeply held understanding of the common good are profound. Opponents of conscience protection know this. It shows in the “take-no-prisoners” terms in which they conduct their debate. The Washington Post article reference above called conscience one of the “bitterest debates in medicine.” And the American Civil Liberties Union characterizes the position of conscientious objectors as “tak[ing] patients out of the equation.” The National Women’s Law Center has stated that it would refuse conscience protection to pharmacists, even in cases where a particular service might be obtained from a different provider and the objecting providers are willing to provide advance public notice of their stance. PPACA provides a large stage on which such players can shift the direction of health care over the next decades.

Sadly, some of those who support health care conscience protections in principle also threw their support behind PPACA on the strength of President Obama’s promises in a health care executive order signed after passage of the PPACA. But this is the same president who has proposed to rescind Bush-era conscience regulations, having stated publicly when he was a U.S. Senator that protecting the consciences of health care providers would impair the “health care needs of women.” Furthermore, the executive order could not constitutionally alter the legislation, which therefore remains problematic for conscience in several ways. It further failed to provide assistance in those areas where it might have directed the federal agency in charge (most notably the Department of Health and Human Services) to respect conscience.

Despite PPACA’s many failures to explicitly protect individual or institutional conscientious objectors, the Catholic Health Association (CHA) endorsed it shortly before the House vote. CHA’s endorsement is very likely impairing the public’s understanding of the law’s many conscience flaws. CHA’s 2009 “blueprint” for “ethical health care law” insisted upon “respect” for “the religious and ethical values of patients and health care providers alike.” Yet, after endorsing the bill, CHA never provided any legal analysis to back up its claim that “We are confident that the reform law . . . keeps in place important conscience protections for caregivers and institutions alike.” Detailed legal analyses of the bill’s conscience flaws went unanswered, both before and after PPACA’s passage.

Currently, a bill cosponsored by Republican Joseph Pitts and Democrat Dan Lipinski (H.R. 5111) contains a variety of conscience protections which would repair many of PPACA’s most serious flaws. It merits considerable attention in the public square as current changes in health care law could represent a watershed in the field of conscience protection.


Helen Alvaré is associate professor at George Mason University School of Law and a senior fellow of the Witherspoon Institute, where she serves as chair of the Task Force on Conscience Protection.

Copyright 2010 the Witherspoon Institute. All rights reserved.