Roe and Heller, They Go Together

Roe and Heller, They Go Together June 27, 2008

One issue in yesterday’s post on gun control that provoked a vigorous response was my contention that Roe and Heller were decided with the same underlying philosophy that emphasizes the right to individual liberty as long as it does not impinge upon the equally valid rights of another citizen. This is a very different philosophy of from that of Aquinas, where law is deemed an ordinance of reason for the common good made by him who has care of the community.

I stand by my contention. The counter argument essentially says that my argument is flawed in that Heller merely interprets the constitution, whereas Roe manufactures an entirely new “right” with no basis in the document. Moreover, since the justices who support Roe dissent on Heller, and vice versa, there couldn’t possibly be a connection.

This reasoning is flawed. To claim that Scalia’s decision was a simply technical interpretation of a document that left no room for his personal views and philosophy is simply not credible. The current case boils down to the interpretation of a few words in a document. Those who believe in the private ownership of guns claim the second amendment to be an individual right, while those opposed argue it in collective terms. In his dissent, Justice Stevens took the latter position, calling the decision “a strained and unpersuasive reading” and noting that the right to own a weapon exists only “in conjunction with service in a well-regulated militia”. The decision therefore constituted “a dramatic upheaval in the law.”

And how does Scalia respond? That is the interesting part. He claimed that “the operative clause codified a pre-existing right of individual gun ownership for private use.” So what Scalia is really doing is appealing to the Enlightenment-era doctrine of personal liberty as the foundation of law. This is what he dresses up as “orginalism.”

We see this philosophy elsewhere. The Pre-New Deal Supreme Court was heavily influenced by laissez-faire constitutionalism, whereby any attempt at economic regulation was derided as an attack on the right to free exchange. And yes, this also underpins Roe, with its emphasis on the “right to privacy”– it is simply taking the judicial philosophy of personal liberty to its logical and extreme conclusion. In all cases, the common good is ignored.

Even within the limits of a written constitution, there is scope for interpretation that accords better with a Thomist interpretation of law. Much of the pre-New Deal reasoning has been cast aside. Roe itself can (and should) be reversed. And Heller could have been decided by the jurisprudence of Stevens, not Scalia. The positive law must reflect the natural law, an order of reason based on the common good, and judges do not get a dispensation from the moral law. Anything else is to take God out of the equation– which was a key theme of the Enlightenment, after all.

So why should Roe be overturned? If you say it is because the original framers did not think privacy encompassed abortion, that is the wrong answer. For what if they had? They certainly tolerated many things we do not today, and were heavily influenced by Enlightenment-era thinking– a philosophy I have argued is deeply flawed. No, the correct answer is that the right to abortion is not a right at all, and can never be regarded as a right, for the natural law is superior and antecedent to all positive law, including the US constitution. If a written constitution is to be of service, the “rights” it espouses must be constantly interpreted, in each generation and in response to unique challenges, in light of the natural law and the common good. Mistakes will be made along the way. But the alternative, based on a sola scriptura premise, can lead down the wrong road.

Presently, whatever else they claim, judges decide based on personal ideological attractions, which just happens to match the current political cleavage in American society. Judicial activism depends on one’s perspective (relativism!). As they did in Roe, this Supreme Court majority is simply reflecting the political opinion of its own ideology. EJ Dionne derides their “willingness to abandon precedent in order to do whatever is necessary to further the agenda of the contemporary political right.” The same accusation could have been made in 1973. What Dionne does not say is that Scalia and Blackmun were arguing from quite similar philosophies– the primacy of individual liberty.

One final point. DC’s mayor Adrian Fenty claimed that the “more handguns in the District of Columbia will only lead to more handgun violence.” He is supported by local law enforcement. Fenty is the man charged with care of the local community, and he has quite rightly sees the gun ban as a component of the common good. But this does not concern Scalia. In the Guantanamo decision, Scalia hissed that it would “almost certainly cause more Americans to be killed.” That doesn’t bother him here. Yet more evidence of a flawed and inconsistent judicial philosophy.

Addendum: Legal scholar Jack Balkin notes the following:

“Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans’ minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.”

Exactly. Let us please leave the original purity arguments at home. This was a reflection of the re-emergence of laissez-faire liberalism after the so-called Reagan revolution. Same philosophy that guided Roe, whether they realize it or not.

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