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Nietzsche's Children: The Post-Modern Supreme Court

by James G. Bruen, Jr.

     When I was a child, I would turn around quickly, trying to see a void. I wanted literally to see "nothing," to observe the void that existed behind me. I was trying to prove that the objects that were behind me didn't exist whenever I couldn't see them. No matter how quickly I turned, I couldn't do it. The objects always got there too fast.

          Employing a method of doubt that holds that any judgment about the external world is suspect, Rene Descartes nevertheless held that he must exist. He could not "be nothing so long as I think I am something," so he famously concluded Je pense, donc je suis; Cogito ergo sum; I think, therefore I am. That's nice, but Descartes' approach falls apart proving anything else exists too unless one discards his rigorous method of doubt. To put it a little differently, he couldn't prove that the objects in back of him existed and weren't merely in or from his mind. Indeed, he couldn't prove that objects that were right in front of his eyes actually existed either.

          So, I have some difficulty deciding whether I was a foolish child or instead whether I was an incipient world-class philosopher. Now that I am adult, no one has suggested I have become a world-class philosopher.

          Scepticism is the philosophical attitude that maintains we can seek but not find sure knowledge of how things really are. Seek and ye shall find? No. Seek, but you cannot find.

          Postmodernism describes a way of thinking that has become pervasive in the West. According to post-modernism: We create our own reality; there is no truth.

          The difference between scepticism and post-modernism may be this: scepticism concedes there may be an objective reality but doubts we can find it while post modernism says there is no objective reality but we each can create our own reality.

          Scepticism says the objects might be behind me when I'm not looking; post-modernism says they're there if I want them to be.

          There is a wonderful story about G. K. Chesterton receiving some visitors who were philosophy majors. At least my memory told me the story was about Chesterton. And the story should have been about him, but when I went to find it, I found my memory was faulty: the story did involve Chesterton, but it was not about him.

          Here's the anecdote, as related by Christopher Derrick in Escape from Scepticism: Liberal Education as if Truth Mattered (Sherwood Sugden & Co. 1977):

Last summer, two young American friends came to my home, which is near London, and we discussed all manner of things. Both were pleasant and bright, and both were philosophy majors from liberal arts colleges of repute. The conversation developed along such lines that I eventually plucked up my courage and uttered the Chestertonian dogma 'Pigs is pigs'; and to this, both my friends responded with a storm of contradiction and even of anger. No, I was quite wrong: the mind cannot know anything outside itself, and it certainly mustn't classify its experiences in any essentialist language of objective pighood.

And so on. But soon it was time for them to go, and they started worrying about the time of their train. I pointed out, mildly, that since there was no real and knowable world within which their train could have any objective 'out there' existence, their anxiety was misplaced. This irritated them a little: philosophy (I was given to understand) was one thing, but the practical business of daily life was another.

... [W]hen pressed, they admitted that for them and their instructors too, philosophy amounted to little more than a word-game, making no real claim to yield 'truth'."

          Life, though, is not a word-game. There is little to be gained from denying the existence of realities outside the individual. Indeed, it is impossible to live a sane life unless one accepts those realities. The ultimate deracination is a believed philosophy that is untethered from reality: if you deny reality, you are insane. If you are not rooted in reality, you are adrift. Put another way, if you believe there are no realties outside of your mind or that you create your own reality, then put your head down and run into what appears to be a solid wall. You will discover whether the wall is a reality outside of your mind.

          The United States Supreme Court may harbor the most dangerous post-modernists in the United States. Now, I don't mean the Justices disregard train schedules or run head long into walls. If they did, they'd probably only be a danger to themselves. Instead, they have enshrined post-modernism in the American Constitution, using it to strike at the family, thereby undercutting the basic unit of society and a foundation of Western Civilization.

          The United States prides itself on having a government "of laws" not "of men."  In simple terms, by this Americans mean that they are not governed by and at the arbitrary whim of a sovereign but by clearly enunciated laws applicable to all and applied fairly. That's the theory. In the American system, the Supreme Court supposedly is not the law-maker or the law-giver, but instead the interpreter of the Constitution (which was adopted in the late Eighteenth Century, and which has been amended numerous times thereafter pursuant to a process delineated in that Constitution) and laws enacted by Congress and signed into law by the President or, if he vetoes legislation, enacted over his veto.

          Especially when addressing matters that involve the family, though, the Supreme Court has severed itself from its proper role and from its "root" document, i.e., the Constitution, to become a law unto itself, by pretending the Constitution can mean whatever it wants it to mean. It is transforming America into a land which has a government "of men," not "of law," while denying that it is doing so.

          The Supreme Court's assault on the family dates to 1965 when it created a right to privacy that included the right of married couples to use contraceptives. Griswold v. Connecticut, 381 U.S. 479. In 1972, it ruled that unmarried people also had a constitutional right that prevented states from prohibiting distribution of contraceptives to them. Eisenstadt v. Baird, 405 U.S. 438.

          So much for the sanctity of marriage and the marital act. The Constitution included the right to copulate without consequence! Of course, the Constitution is an imperfect contraceptive: children might result despite the purported constitutional right to contracept. So, in 1973, the Supreme Court discovered that the right to privacy also included a woman's (dare I say mother's?) right to abort her preborn child. Roe v. Wade, 410 U.S. 113.

          That right, it later ruled, trumped any interest the father had in preserving the life of his child, regardless of whether he was married to the child's mother, using the peculiar logic that any rights the father had were not inherent in his status as father but must be delegated to him by the government. "Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period." Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 69 (1976). It's as if the father is a subsidiary unit of the government, like a town, that has no powers of its own but can only exercise powers delegated to it by the state.

          The American Constitution, of course, contains no reference to a right to privacy, a right to contraceptives, or a right to abort a child. But, in the name of privacy and individual rights, the Supreme Court has struck at the family by separating the couple during the marital act, allowing a mother to kill her child, and preventing a father from saving his child from that mother.

          These Supreme Court decisions were, to borrow Justice White's phrase in his dissent from the abortion decision, an exercise of "raw judicial power." The Justices had the power to do as they wanted, so they did. Does anyone else hear echoes of Nietzsche? The Court's appeals to logic and the Constitution were merely a means by which its collective "will" asserted its power.

          Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992) included one of the most ludicrous statements I have read in a Supreme Court decision. There, the Court explained its contraception and abortion decisions by saying "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment." Then came the howler. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

          When I first read the opinion, I laughed, embarrassed for the Justices who must have let a law clerk's sloppy thought and writing slip into their opinion.

          But it was no laughing matter: The Supreme Court was explaining that a right to contraceptives and abortion sprung from "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

          And it was no mistake. Mocked even by fellow Justices on that Court, most notably Justice Scalia, who says the "famed sweet-mystery-of-life passage" may be "the passage that ate the rule of law," the Court trotted out the passage again in 2003 in Lawrence v. Texas, 539 U.S. 558, 574, to rationalize constitutional protection for anal sodomy between men. Having ruptured the bonds between mother and child, father and mother, and father and child, what does the Supreme Court substitute therefor? Anal sodomy!

          The sweet mystery of life passage, of course, embodies post-modernist thought: We create our own reality; there is no truth.

          Do the Justices believe this claptrap? Maybe, but I doubt it. Justice Souter, who was in the majority in both Casey and Lawrence, was mugged in Washington, D.C., in April, 2004. He didn't create his own reality, instead reality intruded. He didn't define away his assailants or his injury. Instead, he went to a hospital.

          What, then, to make of the sweet mystery of life passage? Like the students who visited Christopher Derrick, the Supreme Court Justices are involved in intellectual game-playing that they must ignore when real life intrudes. But why? Why the intellectual gobbledygook? Why the word-game?

          In Casey, the Court said its "legitimacy [is] a product of substance and perception" that "depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation." The Court thus suggested that theoretically it could make a decision that was so outrageous that the "Nation" would reject it which could lead to "violence." In other words, they don't want to get out ahead of the American people too far, otherwise they might lose their power to do as they want. Thus, it is hard to envision the Justices discovering that liberty protects a right to rape. But it is not impossible: would a right to rape be any more abhorrent than the right to kill a child?

          This, then, is the purpose of the gobbledygook: it feigns a principled character for the Court's decisions, fanning a perception that the substance of the decisions is sufficiently plausible to allow acceptance by the public even when wrong.

          The "principled character" of the decisions upholding the constitutional rights to abortion and sodomy is hardly self-evident or even plausible. Instead, the decisions reek with condescension: we, the Court seems to say, are sufficiently bright that we can churn out opinions that can justify almost anything without causing rebellion or injuring our ability to do as we please; we are the elite, the knowing, the wise, the powerful, but, recognizing that the "Nation" includes others who are not as enlightened or intelligent, we must guide and control them while protecting ourselves against violence and a loss of power by writing opinions that engender a "perception" that our actions are "sufficiently principled."

          Seen in this light, the sweet mystery of life passage is a fig leaf. The Court ingrains post-modernism into the Constitution to hide and make more palatable its Nietzschean imposition of its will on the less powerful. Indeed, Nietzsche himself viewed appeals to reason and truth, indeed language and philosophizing, as but a means - physical force is another - by which one will can assert its power over another. As Justice Scalia pointed out in dissent in Casey, the Court is acting from a "Nietzschean vision" in which "unelected, life tenured judges lead[] a Volk." 505 U.S. at 996.  The transition from post-modernism to Nietzsche is unsurprising, indeed inevitable. If I create reality, then there is no reality outside myself. You do not exist except in my mind; therefore I can do with you as I wish. I can even kill you, as happens in abortion. My will controls as I have power over you. Nietzsche, of course, went mad, as, perhaps, have some of the Supreme Court Justices.

THE ONLY CONSTRAINT                                                                

          The only constraint on the Justices of the Supreme Court seems to be the ability of each Justice to get the other Justices to join in an opinion. If and when five out of nine Justices agree on an opinion, then that is what the law is, at least at that moment. Nevertheless, the Supreme Court has invoked this sweet mystery of life language infrequently. Indeed, the sodomy and abortion opinions are the only ones in which the Court invoked it, although Justice O'Connor has suggested it might also preclude states from barring assisted suicide. Glucksberg v. Quill, 521 U.S. 702, 745 (1997) (concurring).

          Does this infrequency mean there is little to fear? On the contrary. It demonstrates starkly that the Supreme Court views its mission as one of engaging in social engineering to remake society in its own image. The Court has invoked this language explicitly only when undermining the most fundamental underpinnings of Western civilization: human dignity and the sanctity of marriage, human sexuality, and the family. It is only explicit when striking at the very roots of civilization. And then it is at its most dangerous. For when the individual has no family, he is cut off from his roots; he stands naked and alone, vulnerable to the whim and will of government or whoever has power. He has, like the father in Danforth, no inherent or natural rights or authorities, only those that the government or the powerful choose to give him or to recognize.

          In this, the Supreme Court of the United States is following in the well-trod path of modern social engineers, who, recognizing that each person is rooted in his own family and that families are the root of each society, must force deracination in order to remake man and society in their own image. They must prevent the family from nourishing, educating, and raising the child. They must prevent the family from nurturing and protecting its members. They must preclude the family's ability to insulate its members from their will and their social engineering. They must, in a nutshell, weaken and then destroy the family. So modern attempts to remake culture strike at the family, the basic unit of society, to break it and cut off the individual from his roots. Thus, Rousseau delivered his children to the orphanage. In their quest to establish a master race, the Nazis engineered breeding farms. The Soviet communists and the hippies insisted upon raising children communally rather than in their families. And the Chinese communists have a one-child policy, sometimes enforced even by compulsory abortion in which the child is aborted despite the mother's objection.

          The Supreme Court of the United States packages its deracination under the guise of freedom, privacy, and individual rights, which today are more attractive and seductive than the now-discredited approaches of the Nazis and Soviets, but that is merely a tribute to America's infatuation with advertising and salesmanship. And, by and large, the Supreme Court is succeeding. It has lost no power despite the outrageousness of its attack on the family. No Justice has been impeached, and the Congress has not restricted its jurisdiction. Indeed, so sacrosanct are these decisions in America as the law of the land that many in Congress will try to thwart the nomination to the judiciary of anyone opposed to the abortion decisions. Thus the double standard under which the stridently pro-abortion Ruth Bader Ginsburg glided onto the Supreme Court, while Samuel Alito's accurate observation in 1985 that "the Constitution does not protect a right to an abortion" guarantees frenzied opposition to his nomination to that same Court. And, yes, there has been some violence in opposition to abortion as a result of the Supreme Court's rulings, but it has been squelched so effectively that most of those opposed to abortion separate themselves from it and seem quite docile, working politely and impotently within the system as millions are killed.

          Meanwhile, other courts are emboldened, invoking the Supreme Court's example to impose their own will, secure in the knowledge that while the public may gripe, that is all that will likely occur. This occurred most notably in Massachusetts in Goodridge v. Department of Public Health, 440 Mass. 309, 331 (2003), where the Supreme Judicial Court of that state invoked and relied on Lawrence but went further, saying "The Massachusetts Constitution is, if anything, more protective of individual liberty and equality than the Federal Constitution; it may demand broader protection for fundamental rights; and it is less tolerant of government intrusion into the protected spheres of private life." And thus the Supreme Judicial Court mocked marriage and further undercut the family by imposing homosexual marriage as a newly discovered constitutional right in Massachusetts. 

          This, then, is the philosophy that currently underlies the American judiciary: My will be done.  And that will, tragically, is to uproot the individual and the family.

          The question of the moment, of course, is whether the seating of Chief Justice John Roberts and the probable confirmation of Judge Alito portend the Supreme Court's abandonment of its present approach. Will they, as does Justice Scalia, recognize and disavow the Nietzschean vision that has driven the Court recently? The public record suggests reason to hope they will. But hopes have been dashed before. The question can only be answered over time as the Court issues its opinions.CW

James G. Bruen, Jr. is an attorney.

This article was published in the January, 2006 issue of Culture Wars.

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