The Gorsuch Appointment: Where’s the Stealth?
“Is Gorsuch a stealth nominee?” Cliff Kincaid addressed that question this week. In it he raises the specter of past SCOTUS justices, nominated by putatively conservative GOP Presidents, but who ended up being party to SCOTUS decisions, like Roe v. Wade, that gravely imperil the rational foundations of constitutional self-government and the moral conscience and character required to sustain it. Americans who are pro-life are being asked to trust that Neil Gorsuch will not be like them. In his book on a possible jurisprudence inhibiting assisted suicide he does suggest relying on the principle that human life is inviolable. But, as I noted in an article several weeks ago, he diligently refuses to evoke the logic of God-endowed right in support of that suggestion.
Like most constitutional conservatives, Cliff Kincaid objects to “preserving the “rights” that have been made up by a liberal Supreme Court.” He was, therefore, taken aback when soon-to-be-Justice Gorsuch said that Roe v. Wade is “precedent of the United States Supreme Court. It has been reaffirmed…”, and then when on to say that it is “…worthy of treatment as precedent like any other.” Mr. Kincaid further cites Judge Gorsuch’s more emphatic assertion that the SCOTUS’s Obergefell ruling on same sex-marriage is “absolutely settled law”. He takes it as proof that Judge Gorsuch “is not a full constitutional originalist” since “No originalist would ever make…a comment that appears to betray the Constitution and the intentions of the Founders.”
Mr. Kincaid contrasts this with Justice Antonin Scalia’s dissent from Obergefell, in which he “called the Court’s gay marriage decision a judicial ‘Putsch’”. Mr. Kincaid takes this to mean “that the court had overthrown our democratic Republican form of government by creating rights that didn’t exist in the Constitution and which the people in all 50 states had not voted for.”
When it comes to the existence of fundamental rights, one major problem with some “originalist” thinking, which requires strict regard for the words of the Constitution, is that those words include the 9th Amendment. That amendment clearly states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” These words assume that the people retain rights not enumerated in the Constitution, which the Constitution forbids us to “deny or disparage.”
People have rights not enumerated in the words of the Constitution. In order to avoid denying or disparage them we must first be able to recognize them. But is it possible to recognize, say, an apple, except without reference to some criterion that distinguishes apples from peaches, or pears, or other fruits? What is the criterion (or set of criteria) by which these retained, but unenumerated rights can be recognized?
The Constitution does not clearly provide it. However, we do find some basis for discerning it in another of the Organic Laws of the United States, the Declaration of Independence. It clearly refers to the authority of the Creator, whereby all human beings come to possess certain “unalienable rights”, including (but not limited to) “life, liberty and the pursuit of happiness.”
When it speaks of the people’s right of independent self-government, which the American people decided to exercise for reasons it makes known, the Declaration points to the fact that such right exists in consequence of “the laws of Nature and of Nature’s God”. Natural law, ordained by God, is thus explicitly cited as the basis on which the people of the United States lawfully claim their “separate and equal station among the powers of the earth”, independent of the British King or any other merely human sovereign.
So, human rights derive from natural law, which derives its authority from Creator, God. They are called rights because it is right to do what God’s rule (or law) requires. This imperative is what distinguishes the right exercise of freedom, according to God’s law, from injustice, which is freedom abused to violate it.
This logic provides the criteria the Constitution’s 9th Amendment requires. By discerning what God’s law requires, we understand the activities we are, by nature, required to undertake. Since it is right, according to His law, to pursue them, we have the right to do so. But the Constitution itself arises from such a pursuit, since it is ordained and established as the Supreme Law of the Land by authority that the people of the United States derive from their pursuit of just government, according to God’s rule.
Thus, the logic of God-endowed natural right permeates the Constitution, justifying the order of government its words mean to establish and maintain. Therefore, whenever that logic is disrespected or cast aside, it has not been authoritatively construed. This is a matter of practical fact, since the authority of the Constitution derives from the authority of the people, and that authority depends on the logic of God-endowed natural right.
This logic conclusion points to the original intention on which the U.S. Constitution depends. It is not just a matter of words. It involves respecting the primordial authority that conditions how we construe those words. That authority dictates the just character of the government being established by that construction. This primordial authority is not simply a matter of human choice and will. It depends on the will of the Creator, from which arises the comprehensive and universal ordering that informs the existence of all types and ways of being, including humanity.
This is the “original intention” that must be considered when we deal with issues that impinge upon God-endowed unalienable rights; issues like abortion and homosexual “marriage”. Can “rights” predicated on the abandonment of respect for the laws of Nature (including human nature), and of Nature’s God, give rise to rights that human beings, necessarily subject to those laws, are obliged to respect? Can artifacts of human will and power, that contravene those natural rights, be forcibly imposed as “law”? How can SCOTUS rulings to this effect be “absolutely settled law” when they violate the rightful exercise of freedom that is the primordial right, arising in obedience to the primordial natural law that authorizes, along with all other things, the very existence of humanity?
What becomes of humanity’s claim of self-government, and indeed of humanity itself, once the universally sovereign will and power of the Creator God, is banished from our reasoning about the law? Soon-to-be-Mr. Justice Gorsuch simply discards the appeal to God, relied upon by America’s Founders. So, what distinguishes his view of law and justice from the frank and exclusive preoccupation with power that is characteristic of Marxism, pragmatism and other such God-discarding “isms”? Like them, he seems determined to deny the authority of the Being whose presence and activity we assume in all things, but whose self-subsistent and self-informed will Godless secularism deems impertinent to fundamental right. Isn’t this what threatens to make all unalienable rights, including the rights of life, liberty, and property, impertinent to America’s future?
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