There was a cartoon, many years back, in the New Yorker, of a man holding forth at a cocktail party, and declaring, with a sweep of self-assurance, “As Immanuel Kant once said—or perhaps it was Cap Weinberger.” I was mildly surprised when a friend, well schooled in matters literary, was herself surprised when I drew a line from the Gospel according to John: “Ye shall know the truth, and the truth shall make you free.” Like many lines grown familiar to us, it has circulated widely, until we come to forget who first said it. Who was the last person we heard say it—was it Bill Moyers? Sam Ervin?
The surprise for my friend was that the line had come from Jesus. But even people who may recall who said it will probably find, as I did, that they hadn’t recalled the lines that came next.
After Jesus vouchsafed that “the truth shall make you free,” one of his interlocutors responded, “We are Abraham’s seed, and were never in bondage to any man.” That is, they were leading a Jewish life, which meant that they were leading lives guided by the law of Moses. Laws, of course, restrain, but the laws that restrain us from the things we ought not do free us from the distractions of vice. They free us to expend our efforts, and make our choices, within that vast universe of things that are rightful to do. But to all of this Jesus replied in turn, “Verily, . . . Whosoever committeth sin is the servant of sin.”
The claim made initially by the Jews could have been offered, with the same coherence, in Athens as well as Jerusalem. And the same could have been said, in turn, about the rejoinder made by Jesus. It was consistent with Judaism and quite recognizable by any moral philosopher who may profess his detachment from Jerusalem. Even people blessed to live under good institutions and good laws may themselves fall into sin. They could be enthralled by vice; they could be displaying, in the weave of their lives, principles quite at odds with the ethic portrayed in the laws. That is why confession and atonement still make sense even for people living in the freest countries. Can we not fall into sin and corruption ourselves, even where the government is restrained and liberties are protected, under the laws? But if that is the case, is there not another recognition, as old at least as the admonition recorded by John? Is it not possible for a people to fall into corruption even while its political life is framed by good laws and institutions?
And in that case, would it not be quite as possible that the men acting with the powers of office may make decisions, over a number of cases, that are inconsistent with the very premises on which the laws are founded? Lincoln used to point out Senator Petit of Indiana, who insisted that the self-evident truth proclaimed in the Declaration of Independence that “all men are created equal” was nothing less than a “self-evident lie.” As Lincoln understood, the American republic began with the proposition that all men are created equal, that human beings deserved to be ruled only with their consent. That proposition formed the very ground of our laws. But evidently there were portions of the American political class who were no longer committed to that proposition. They would vote to sustain a regimen of slavery, and they would acquiesce in every alteration of the laws, every abridgment of constitutional freedom, that was necessary to preserve those arrangements of slavery. In other words, men who filled the office of senator might nevertheless be acting on premises that were incompatible, at the root, with the premises that underlay their offices. In classic terms, this was a case of the corruption of the political order, and as the ancients understood, this kind of corruption had to be an immanent possibility even in the best of regimes.
Why should we suppose, then, that this country should be exempt from these dangers inherent in political life? And in that case, it should not strain the wit to encompass this further possibility: Could the outward forms of this political regime remain the same, while its substance is being removed and the regime is being converted into something else?
Once again, the experience in the nineteenth century with slavery may yield the most vivid lessons. When slavery was brought out of the plantations and into the cities of the South, it became necessary to move away from the informal controls of the household to the formal instruments of the law. Slaves might be free to move about the city on errands, but in that event, the premises contained in the system of slavery had to be made jarringly explicit: There were passports, or badges, to be carried by slaves; there were new laws meting out discipline and punishment; there were sentries, with rifles and bayonets, making a display of their presence, and the meaning of that display was not lost on anyone. Frederick Law Olmstead, visiting the South, took in these sights and remarked that he had seen “more direct expression of tyranny in a single day and night in Charleston, than in Naples in a week.”
The American regime was, without question, a republic and a constitutional order. But within the framework of that regime, the need to keep reinforcing the system of slavery was imparting to the law an authoritarian character. A regime that could justify the enslavement of blacks could begin removing the franchise from many whites as well. And in this way, a government that remained outwardly a republic could be transmuted into something strikingly different in its substance.
What inspired this meditation is the controversy that has lingered over the recent symposium in First Things. The symposiasts had sought to show the design marked off by the judges—as they took upon themselves the authority to remodel the matrix of the American law—on the meaning of sexuality, the family, of life and death. As we filled out the indictment and sounded the alarm, some of our friends thought that we were calling upon people to disobey the laws. But we had deliberately steered away from any counsel of lawlessness, for reasons everyone should have understood: So long as elections were open and the policies of the government may be changed through persuasion, the procedures of a democracy commanded our reverence.
That all of this required explaining to our critical friends was something we had never anticipated. But as the argument wears on, I find myself even more astonished that our friends apparently have not encompassed the possibility understood by the ancients and by Lincoln: that the substance of the regime may be changed radically from within, even while the outward forms remain the same. Our friends treat, as incendiary the suggestion of Father Richard Neuhaus that the regime could be forfeiting our “moral adherence,” and yet do they assume that the regime, in all of its phases, remains morally the same?
Harry Jaffa once remarked, on the controversy over slavery, that whether the black man was, or was not, a human being could not be a “value judgment.” It was not a question to be delegated to the legislators, for that is a question that had to be answered before we could even have legislators. Who, after all, was fit to serve as a legislator or vote to constitute a legislature? Could horses and cattle vote? Could they serve if elected? Or did the whole enterprise not begin where Aristotle began it, with a recognition of the kind of being who was suited by nature to live in a polis? In the same way, the question of human life, or when it begins, cannot be, as one justice has put it, a value judgment, to be voted on by legislators in the separate states. Once again, the very existence of a legislature must presuppose that we have already rendered an answer to that question. The burden of justification would have to lie, then, with the people who contend, with a blend of audacity and imagination, that the offspring of human parents can be anything other than human, at any stage of their existence.
With a proper degree of sobriety, therefore, this much can be said: When judges treat as problematic the existence of human life, and when they remove human beings from the protections of the law, they are installing premises that are incompatible with the very ground of the authority they are exercising. Nor will these decisions remain static. Roe v. Wade soon fostered an acceptance of infanticide, plain and undisguised, and it is now being used as the ground of the argument for assisted suicide. The dynamic of this ethic will not be stilled; it pushes on to remove the protections of the law from the aged as well as the unborn.
As we were taught long ago, even under good laws people may fall into sin. But when the laws begin to teach lessons quite at odds with the premises of a democratic order, should we be surprised that more and more of our people profess not to care whether the law protects the unborn or the aged? And would we mark ourselves as a special order of zealots if we merely point out, in an ancient voice, that a people, tutored by the laws, may mirror the corruption of the laws? To sound these concerns is not to counsel insurrection. It is rather to remind ourselves, as Professor Jaffa once again put it, that a free people must be summoned to respect, in the first instance, the premises on which its own freedom rests.