Constitution Watch: The Oregon Trail

William Bentley Ball, the distinguished constitutional lawyer and Crisis contributor, passed away in Florida on January 10, 1999. Bill Ball was an extraordinary man—a lawyer of great skill and subtlety who argued many cases before the nation’s highest courts, a legal scholar of surpassing acuity, and a deeply humble Christian gentleman. At his funeral in the cathedral in Harrisburg, Pennsylvania—concelebrated by Anthony Cardinal Bevilacqua of Philadelphia and the majority of the Pennsylvania episcopate—more than 400 people gathered to pay tribute to his life and work. Joseph Esposito of the National Catholic Register offers a reflection on that work following this, his last column, filed just days before Bill’s passing.

We considered removing this column from this issue, out of respect for the Ball family. However, in the end, we decided that to do so would be to dishonor Bill Ball’s memory. To Bill, nothing mattered more than the security of our constitutional rights to life, liberty, and the pursuit of happiness. He would—and during his life, always did—willingly pass up personal renown and regard for the advancement of that cause. Even in death, we felt, it would have mattered more to Bill Ball that the cause be furthered—even by means of disseminating information through this column—than whatever praise we could pen in his honor. William Bentley Ball was that kind of man. This magazine, and the entire community of believing, faithful Catholics in this nation, is less for his passing.

—The Editors

For many Americans, March brings to a close a winter of constitutional discontent. There is the quarter-century persistence of the abortion right—like a cancer in the very marrow of the constitutional bone. But we think also of the impeachment question—and now, in the failure of the Senate to convict the impeached president, the actual impeachment of our society. We think, too, of the long erosion of constitutional principle governing the making of war—with the hideous example of our massive bombing of a third world nation in December. Then there is the almost silent proliferation of trespasses on constitutional liberties by states, little published, yet menacing. To reflect upon this last:

Justice William J. Brennan had once observed that we should regard the states as laboratories for advancement of social goals—e.g., further loosening of abortion restrictions. The state of Oregon provides a useful example—indeed a role model for all states—of militantly secularist polity. The secularist impulse is not new in Oregon’s history. It was Oregon that in 1922 adopted an initiative making it a crime for parents to enroll their children in any but public schools. The monopoly had been defended on the ground that the public school melting pot would mix those with “prejudices” (e.g., religion) with others “while their minds are plastic.” That public school monopoly was declared unconstitutional by the United States Supreme Court in 1925 in the Pierce case for its implicit state-prescribed mind control of citizens.

The year 1986 witnessed Oregon again expressing its concern for what goes on in people’s heads with its enactment of a “hate crime” law. This statute creates a crime called “intimidation,” i.e., causing physical injury to another, or damage to his property, because of the assailant’s “perception of that person’s race, color, religion, national origin, or sexual orientation.” The physical action is, of course, a crime for which a specified punishment is imposed. But the “perception” of hatred brings an additional penalty, the penalty for the physical action being thus (in the odd lawyerese employed) “enhanced.” “Hate crime” laws are now in force in most states. They raise serious constitutional questions concerning freedom of speech.

Morality and the protection of society do necessitate limitations on expression, not only as to obscenity but as to words almost certain to result in calamity—like yelling “Fire!” in a crowded theater (in Justice Holmes’s famous example). The Supreme Court in 1942 moved beyond that example to condemn certain epithets—”words which by their very utterance . . . tend to incite an immediate breach of the peace.” The “hate crime” laws move to a yet further and different step—not simply to prevent breaches of the peace but to punish harrowing insult. Here a warning flag must be raised. We raise it, not in unison with those who (selectively) decry governmental attempts to “impose morality” (for the sake of our hides, at least, all our criminal laws impose morality). Neither is it out of lack of moral concern for any groups in our midst. But while we bear in mind that the “hate crime” laws do not punish insulting speech apart from an accompanying physical crime, we must not forget that they also punish speech itself without the necessity for proof of certainty of breach of the peace. Oregon goes beyond punishing speech in order to punish “perception.” A vaguer and worse example of overkill is hard to imagine. But kill, as well as overkill, has engaged Oregon lawmakers.

Oregon, in 1994, became the first state in the union to legalize assisted suicide. Its Death With Dignity Act is legislation embodying a favorite goal of the secularist mind, a model for replication by all states. In sum, it provides that terminally ill adults who have the ability to “communicate health care decisions” may request medication for the purpose of killing themselves “in a humane and dignified manner.” Physicians who participate, by prescribing the fatal medication, are made immune from criminal or civil liability. Oregon, in the grip of the same groups that nationally support abortion, religion-free education, and in so many ways seek to bend our culture to the secularist will, has secured a significant triumph in this lethal act dressed up in language of humaneness. Oregon chose to ignore the trenchant warnings of the Catholic bishops of Oregon—virtually the only opponents of the act, sad to say. They presented not only moral arguments with which Americans a century ago would have universally agreed, but the documented experience of the Netherlands showing that assisted suicide is soon euthanasia. The state’s leadership was also oblivious to what a narrow majority of Supreme Court justices had to say in its assisted suicide decision of 1997, pointing to dangers to “vulnerable groups, including the poor, the elderly, and disabled persons” from abuses readily arising from legally allowed assisted suicide.

But whatever its view of human life, though, Oregon has intense respect for its land. Picture now a thriving Pentecostal church that built a school on 15 acres of land it owns. This pervasively religious school, when opened, will accommodate 200 children who will meet compulsory school attendance requirements. The church has secured necessary governmental approvals (building code, zoning law, etc.) for its building—except for one. Oregon land-use authorities have blocked the opening of the school under a regulation that provides that schools outside an urban growth area “shall be scaled to serve the rural population.” The school is located in a rural area adjacent to an urban area, and of course wants its doors to be open to all, regardless of place of residence. What does “scaled to serve” possibly mean? Is a school rightly “scaled” if it can (as this school plainly can) accommodate rural kids? Or must it accommodate none but rural kids—have an all-rural population, with no urban children enrolled? The reader might pause to join with the church’s pastor and the land-use authorities to play with possible meanings of the phrase. If you do, you will realize that here is the kind of bureaucratese that the Supreme Court long ago rightly castigated—a regulation about which “men of common intelligence must guess at its meaning and differ as to its application.” The Oregon authorities’ guesswork over this guess-provoking language, by forbidding the church to build its school, has resulted in a palpable violation of the constitutional freedom of ministry.

Here we see, in this environmental extremism, another manifestation of the secularist mentality—misplaced enthusiasms, expressed in regulations by whim, resulting in hard blows at fundamental human liberties.

Oregon, for all of the foregoing, may not qualify as the secularist state of the nation. Competition for that title proceeds apace. But Christian forces should not feel prodded into sullen and angry protest. They should not merely stand for traditional values; they should choose instead to lobby, litigate, and publish for them—fight for them. They can and must show how contemporaneous are ancient values in terms of importance to the lives of all today. They can and must turn their states away from hitting the Oregon Trail.


  • William Bentley Ball

    William Bentley Ball was one of the nation's foremost Catholic constitutional lawyers. He died in 2000.

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