Conservatives, Beware of Fred Thompson

He disappointed conservatives during his eight years in the Senate. Is there any reason to think this Washington insider and veteran trial lawyer would be any better as President?

The frustration of conservatives is understandable. Faced with the prospects of Rudy Giuliani, John McCain, or Mitt Romney as the next Republican presidential candidate, many are pinning their hopes on former Senator Fred Thompson of Tennessee. Could this actor-politician be the new Ronald Reagan?

This is the second time conservatives have pinned their hopes on Thompson. When he was first elected in the Republican sweep of 1994, he was seen then as the “new Reagan”—a charismatic movie star turned politician. Senate Majority Leader Bob Dole quickly picked Thompson to give the five-minute GOP rebuttal to President Clinton’s economic address, and no less than The New York Times swooned with its headline the next morning, “A Star Is Born.”

He turned out to be a shooting star—a dazzling flash in the sky, soon gone, not there dependably, night after night, like the Big Dipper. Or, as The Tennessean later put it, “A year ago [Thompson] looked like a rising star. Today he looks more like a fading comet.”

Rumors circulated that Thompson was lazy, uninterested in the daily grind that comes with being a Senator—and one can understand that Capitol Hill is a lot more tedious and less glamorous than a Hollywood movie lot. More important were Thompson’s failures of will and his lack of leadership on any legislation that would promote the conservative cause. Instead what little leadership we got from Thompson advanced the liberal Establishment agenda.

Failure of will: Charged with investigating the Clinton White House’s Asia fundraising scandal (“Asiagate”), Thompson managed to draw a tiny blood sample from Bill Clinton but little more. If he’s that ineffectual against an easy target like Bill Clinton at the height of his parade of scandals, why should we expect Thompson to be any more effective against, say, the other partner in the Clintons’ 20-year plan to rule the nation?

On the wrong side of the fence: The McCain-Feingold campaign finance bill, championed by Fred Thompson, is the only important piece of legislation where he played a major role. And that is not an accomplishment to be proud of as a conservative. In fact, now that he’s running for President, Thompson is trying to flip-flop on this issue. Well, he can run, but he can’t hide from his record.

Never mind that it was patently unconstitutional, as the courts are starting to declare. McCain-Feingold was also, from the beginning, a sham and a lie.

Its stated purpose—its claim to being a “reform”—was that it would take big money out of politics. Well, you can see how successful it’s been! The big corporate and union lobbies are more powerful than ever, and bored billionaires with nothing else to do are eyeing the Senate and the White House as the next trophies on their mantelpieces.

No, the real purpose of “reform” legislation like McCain-Feingold is to serve as incumbent-protection laws. Establishment politicians aren’t threatened by the K Street lobbyists: they feed off them. They are threatened by grassroots organizations that keep an eye on how they vote and pass that information on to their members.

From the National Rifle Association to the Sierra Club, from Right to Left, these groups call incumbents on the carpet. So the incumbents pass laws to restrict the activities of these groups.

McCain-Feingold, the most prominent recent addition to campaign regulations, does this by prohibiting these groups from broadcasting any issue ads that refer to specific candidates for federal office in the 30 days before a primary, or 60 days before a general election.

Why were those dates chosen? Because “that’s when people are most interested in the elections,” according to Congressman Martin Meehan (D-MA), one of the law’s most ardent supporters. In other words, McCain-Feingold and similar laws are intended to silence the voices of ordinary citizens who contribute to these organizations. And they are designed to do so at exactly the times when grassroots citizens can have the greatest impact.

The real purpose of McCain-Feingold-type laws is to silence your voice in the campaign process, by placing a gag on the organizations that represent you and your views. Such measures are the gravest threat to your free speech that exist today.

And who was the only other Republican Senator to join John McCain in pushing hard for this assault on your First Amendment free speech rights? Fred Thompson. Indeed, campaign finance “reform” was the only issue on which he seemed to show any passion.

Thompson was deeply involved in writing the law, lobbied for it among his fellow Republicans, and was even inclined to call it “McCain-Feingold-Thompson.” He and McCain were able to convince only five of their fellow Republicans in the Senate—but added to the Democrats, that was enough. “You were essential to our success,” Senator Russ Feingold (D-WI) told Thompson in a gushing thank-you note after passage of McCain-Feingold.

Fred Thompson viewed through the Goldwater Test and the Reagan Test for conservative leadership

The Goldwater Test: Senator Barry Goldwater became the first political spokesman for the conservative movement because, out of all the Republican politicians who claimed to be conservative in the 1950s, he and he alone was willing to confront the sitting Big Government Republican in the White House. President Eisenhower’s policies were “a dime store New Deal,” he said on the floor of the Senate. He spoke truth to power.

Well, again we have a Big Government Republican in the White House, and now it’s no longer a dime store New Deal—it’s a supersized Wal-Mart of a New Deal. The Republican welfare state is far worse than anything the Democrats achieved.

And what has been Fred Thompson’s response these past seven years as the GOP massively expanded the federal government? If he’s said anything to warn us about the direction of the Republican Party, he’s said it so quietly that nobody—not just us, nobody—has noticed. And by his silence he has become complicit.

The Reagan Test: Throughout the 1960s and 70s Ronald Reagan walked with conservatives. He was at our conservative functions, and not just at the head table—he mingled with us, listened to our concerns, and made it clear where he stood. Also, our conservative friends were all around him as he governed in California and then ran for President—people like Dick Allen, Ed Meese, Lyn Nofziger, Marty Anderson, Paul Laxalt, Judge Bill Clark…and the list goes on.

Where are the long-time conservative activists today around Fred Thompson? Not campaign consultants who sell themselves to the highest bidder at campaign auctions. No, dedicated and recognized conservative thinkers and activists who will work only for truly conservative politicians.

Go ahead, try and name one. And if conservatives were not part of his inner circle before he started running for the presidency, we cannot expect him to have conservatives in his inner circle if he gets elected. And in politics, personnel is policy.

When we look at the two politicians who are closest to Thompson—Howard Baker and Lamar Alexander—we can see very clearly why Fred will never be a conservative leader, much less a conservative hero.

Fred Thompson and Howard Baker are as intertwined as the two sides of a coin. Fred Thompson was Howard Baker’s campaign manager in his successful reelection campaign in 1972, after which the two were good ole’ Tennessee buddies. Senator Baker invited Thompson to move up north and be minority (Republican) counsel to the Senate Watergate Committee in its investigation of Richard Nixon.

Thompson, it is said, was the person who got Senator Baker to ask a Nixon aide: “What did the President know, and when did he know it?” The reply led to the discovery of the Nixon tapes, and that led to Nixon’s resignation. Almost sounds like something scripted in Hollywood or on the set of “Law and Order.”

Thompson and Baker are still good ole’ buddies today, with Baker urging Thompson to make this run for the presidency and playing a key role in its unfolding. Officially or unofficially, we could expect Howard Baker to play a key role in a Thompson White House.

And who, you ask, is Howard Baker? You belie your age, of course, by asking that, but even old folks may be excused for a little fuzziness on this matter. Well, Howard Baker was one of the chain of leaders of the liberal (Big Government) wing of the Republican Party. The order of succession was Nelson Rockefeller-Howard Baker-George H. W. Bush-George W. Bush. Because he never got to the White House as its #1 or #2 occupant, Howard Baker has sort of faded into history, but he was important in his heyday—and on the opposite side of the ideological fence from conservatives.

As Republican leader of the Senate, Howard Baker worked with President Carter to turn the Panama Canal over to the drug-running Panamanian dictatorship. He voted to spend taxpayers’ money for abortions. As a candidate for the Republican presidential nomination in 1980, he said Reagan’s proposed tax cuts were “a riverboat gamble.” You get the picture. And this guy is still Fred Thompson’s closest advisor.

As for Senator Lamar Alexander (who’s up for reelection in 2008), he’s cut from the same cloth as Baker and Thompson—talk conservative but act like a “moderate” (i.e., liberal); above all, avoid sharp ideological confrontation with the Democrats. “The conservatism he exemplifies…,” wrote Jonathan Rauch in Reason magazine, “is no longer a program. It is a style of talking.”

Like Thompson, Lamar Alexander got his first job in Washington from Howard Baker; and when Thompson dropped out of the Senate in 2002 to return to lobbying, trial lawyering, and show biz, Alexander replaced him.

But you don’t have to take my word for it, because Fred Thompson passes the Sally Quinn Test

Fred Thompson may get an F on the Goldwater Test and an F on the Reagan Test, but he gets an A on the Sally Quinn Test. And that tells us a lot.

Sally Quinn is a noted writer and the wife of Ben Bradlee, long-time editor of the Washington Post. You can’t get more to the center of the Liberal Establishment in Washington than this power-couple. And on June 26, 2007, she penned a telling bombshell in the Post on Fred Thompson.

Vice President Dick Cheney is “toxic” and “has the potential to drag down every member of the party—including the presidential nominee—in next year’s elections,” she advises, so the movers and shakers in the GOP must convince President Bush to force Cheney to resign.

“Until recently, there hasn’t been an acceptable alternative to Cheney…,” she admits. “Now there is.” (And by now you can guess who.)

“Everybody loves Fred,” gushes Sally. “He has the healing qualities of Gerald Ford and the movie-star appeal of Ronald Reagan. He is relatively moderate on social issues. He has a reputation as a peacemaker and a compromiser. And he has a good sense of humor. He could be just the partner to bring out Bush’s better nature…”

I had never known Sally Quinn to be so concerned before about the fortunes of the Republican Party, and I am shocked that she allows for even the possibility of a “better nature” in President Bush. Be that as it may, we can see what’s going on here. She rightfully sees Fred Thompson as a marshmallow—oops, I mean “peacemaker” and “compromiser.” As the sitting Vice President in 2008, he would have the inside track on getting the GOP nomination. And liberals could rest easy, knowing their power is safe whether the Democrat or the Marshmallow Republican wins in 2008.

I have examined Fred Thompson’s eight-year record as a Senator in detail, utilizing the vote ratings of the American Conservative Union (ACU) at www.acuratings.org. He emerges not as an out-and-out liberal, but not as a principled conservative either.

Fred Thompson’s record may appear to be “conservative,” but only by comparison with Rudy Giuliani, John McCain, or Mitt Romney, and a Less-of-a-Big Government Republican is still a Big Government Republican. And given his lack of conservative leadership as a Senator, it would be a grave mistake to expect conservative leadership from him as President.

For six of his eight years as a Senator, Thompson ranked in the bottom half of Republican Senators in terms of his commitment to conservatism. What makes this more remarkable is that he served as a Senator from Tennessee, winning his two elections by hefty margins. He didn’t have the excuse that his electorate was liberal, like the electorates of RINO Senators from Oregon, Maine, or Rhode Island. He had a safe seat with a conservative electorate. So when he voted liberal, we have to assume it’s because that’s what he believed.

Conservatives who look to Thompson for salvation need to pause and consider his record—a record that includes these votes:

♦ FOR restricting the rights of grassroots organizations to communicate with the public. See ACU’s vote 3, 1998.

♦ FOR allowing the IRS to require political and policy organizations to disclose their membership—a vote against the constitutional rights of free association and privacy. (The Clinton Administration used such IRS intimidation against conservative groups that opposed them.) See ACU’s vote 11, 2000.

♦ AGAINST impeachment proceedings against President Clinton, specifically the reappointment and reauthorization of managers (drawn from the Republican membership of the House Judiciary Committee) to conduct the impeachment trial in the Senate. See ACU’s vote 1, 1999.

♦ AGAINST an accelerated elimination of the “marriage penalty.” See ACU’s vote 10, 2001.

♦ FOR handouts to politicians, specifically taxpayer funding of presidential campaigns. See ACU’s vote 6, 1995.

♦ FOR handouts to politicians, specifically congressional perks such as postage and broadcast time funded by taxpayers. See ACU’s vote 13, 1996.

♦ AGAINST restraints on federal spending, specifically the Phil Gramm (R-TX) amendment to limit non-defense discretionary spending to the fiscal 1997 levels requested by President Clinton. See ACU’s vote 6, 1997.

♦ FOR the Legal Services Corporation, the perennial liberal boondoggle that provides political activism disguised as “legal services” to Democratic constituencies. See ACU’s vote 16, 1995, and vote 17, 1999.

♦ FOR an increase in the minimum wage, which, of course, increases unemployment among the young and poor. See ACU’s vote 16, 1996.

♦ FOR President Clinton’s nomination of Dr. David Satcher as U.S. Surgeon General. Among other things, Satcher opposed a full ban on partial-birth abortion. See ACU’s vote 1, 1998.

♦ FOR open-ended military commitments, specifically in regard to U.S. troops in Kosovo. See ACU’s vote 8, 2000.

♦ FOR corporate welfare, specifically the Overseas Private Investment Corporation (OPIC). See ACU’s vote 23. 1999.

♦ AGAINST worker and shareholder rights, specifically the Hatch (R-UT) amendment to require unions and corporations to obtain permission from dues-paying members or shareholders before spending money on political activities. See ACU’s votes 4 and 5, 2001.

♦ AGAINST property rights and FOR unlimited presidential power, specifically by allowing President Clinton to implement the American Heritage Rivers Initiative, which he established by executive order, without congressional approval. See ACU’s vote 20, 1997.

♦ FOR restricting the First Amendment (free speech) rights of independent groups. See ACU’s vote 23, 1997.

♦ FOR the trial lawyers lobby, and specifically against a bill that would put common-sense limitations on the medical malpractice suits that increase health costs for all of us. (Of course! He’s been a trial lawyer himself for some three decades.) See ACU’s vote 18, 2002.

♦ FOR limitations on campaign freedom of speech, by limiting contributions to national political parties to $2,000 and limiting the rights of individuals and groups to participate in the political process in the two months before elections. See ACU’s vote 7, 2002.

There you have it. The actor who talks like a tough conservative has, in his real political life, voted in all these ways to increase the power of the federal government, limit the rights of taxpayers and individual citizens, and shut grassroots activists out of the political process.

There’s a lot of confusion about where Fred Thompson stands on the abortion issue.

During his Senate years, the Memphis Commercial Appeal described him as “basically pro-choice on abortion,” The Tennessean described him as “a pro-choice defender in a party with an anti-abortion tilt,” and National Review deemed him to be “pro-choice.”

Yet his voting record as a Senator was solidly pro-life, earning him high marks on pro-life voting records and bottom-of-the-barrel ratings from abortion groups like Planned Parenthood. Leaders of social conservative groups like the Family Research Council, Christian Coalition, Concerned Women for America, and the Eagle Forum have had praise for his social-issues record.

How can this be? How can the conservative National Review and Tennessee’s leading newspapers describe him as “pro-choice” when his voting record is the opposite? The confusion results largely because Thompson takes—to use one of Washington’s favorite words—a “nuanced” position on abortion, and then sometimes compounds the confusion with conflicting statements. In addition, his role as a Washington Insider—a Washington lobbyist—raises disturbing questions that have not been answered satisfactorily by Thompson.

One of Fred Thompson’s deepest held political convictions is his belief in federalism—that the federal government should stick to the powers granted it in the Constitution, leaving everything else to the states or the people. That’s great--if he actually voted as a federalist on the host of issues ranging from presidential power to education. The one area where he does take a pretty consistent federalist position, however, is on the abortion question.

“I’ve always thought that Roe v. Wade was a wrong decision,” Thompson says, and “that they usurped what had been the law in this country for 200 years, that it was a matter that should go back to the states. When you get back to the states, I think the states should have some leeway.”

Because he believes abortion essentially should be a state matter, not a federal matter, Thompson has voted repeatedly against federal funding of abortion in Department of Defense facilities and says he opposes public financing of abortions for low-income Medicaid recipients. The same federalist reasoning, however, is presumably what also leads him to oppose (in a Christian Coalition questionnaire) a constitutional amendment “protecting the sanctity of human life” as well as federal legislation “protecting the sanctity of human life.” I say “presumably” because Fred Thompson himself has never really explained his seemingly conflicted statements and positions on abortion in a comprehensive and logical way.

Thompson is not against abortion per se, since he says he doesn’t know whether life begins at conception. At least that was the position he took before he started running for President.

“I’m not willing to support laws that prohibit early term abortions,” he told the Conservative Spectator, a Tennessee newspaper, in 1994. “It comes down to whether life begins at conception. I don’t know in my own mind if that is the case so I don’t feel the law ought to impose that standard on other people.” “The ultimate decision on abortion should be left with the woman and not the government,” he told another newspaper. And in his Christian Coalition questionnaire, he penciled in: “I do not believe abortion should be criminalized. This matter will be won in the hearts and souls of the American people.”

Note that when he explained why he opposes Roe v. Wade on federalism grounds, he ended up saying: “When you get back to the states, I think the states should have some leeway.” “Leeway” obviously is code for “the states should allow some abortions.”

Thompson has, however, voted consistently against partial birth abortion. There’s no doubt that life has started in those late-term situations.

Fred Thompson the “conservative” politician vs. Fred Thompson the pro-abortion lobbyist

New information uncovered by the Los Angeles Times indicates that Thompson has lobbied on behalf of an abortion rights organization.

The official minutes of the National Family Planning and Reproductive Health Association (NFPRHA) document that the group hired Thompson in 1991 to try to influence the George H. W. Bush Administration to loosen the restrictions that prevented federal funding from going to clinics that engage in abortion counseling.

Thompson’s support for federal funding of abortion is vividly recalled by the President of the NFPRHA, Judy DeSarno; the Director of Government Relations, Sarah Szanton; and a member of the Board of Directors, Susan Cohen.

To be fair, Bush’s Chief of Staff, John Sununu, has denied ever talking to Thompson about abortion. That may mean that Thompson either spoke to other officials in the White House or took the NFPRHA’s money and did nothing for them.

He would personally rejoice if the Supreme Court overturned Roe v. Wade, at least according to some of his statements on abortion. For the sake of argument, let us grant him that sentiment. But if vacancies occur in the court during his presidency, would he have the fortitude to nominate and fight for judges who share his federalist sentiments and on that basis vote to overturn Roe v. Wade? And would he do so particularly if he faced a Democratic Senate and House of Representatives, as seems likely?

Nothing in his past suggests that he would fight. The Nelson Rockefeller/Howard Baker/Poppy Bush wing of the party, of which Thompson is an integral part by virtue of the umbilical cord between Thompson and Baker, has always believed in accommodation rather than confrontation. You accommodate the Democrats, as Thompson himself did in his “Asiagate” investigation, and you can bet your entire rainy-day fund that the Democrats won’t accommodate a Supreme Court nominee who might overturn Roe v. Wade. Accommodation on this issue is a one-way street. Any accommodation would be done by President Thompson.

As far as other abortion-related politicking is concerned, there is nothing to suggest that abortion is a key issue anywhere near the top of Fred Thompson’s “to do” list. “We need to concentrate on what brings us together and not what divides us,” was Senator Thompson excuse, as told to The Tennessean. And later, when a pro-abortion group needed a Republican Insider to represent its views at the White House, we now know—from the minutes of the group’s meetings—who they turned to: Washington lobbyist Fred Thompson.

In short, a President Thompson would give pro-life conservatives some supportive rhetoric but little action. So what else is new?

Fred Thompson was a key architect of one of the worst pieces of legislation in recent years—the speech-muzzling McCain-Feingold campaign finance law.

Fred Thompson cast votes in the Senate that increased the power of the federal government, limited the rights of taxpayers and individual citizens, and sought to shut grassroots activists out of the political process.

Fred Thompson fails the Goldwater Test with a grade of F: He did not speak out against the Republican Big Government rampage of the past seven years.

Fred Thompson fails the Reagan Test with a grade of F: He has never walked with us or surrounded himself with conservatives or fought our fights.

Fred Thompson has instead been a protégé of one of the icons of liberal Republicanism, Howard Baker, who continues to be his key advisor.

Fred Thompson plays a tough guy in the movies and on television, but in real life he is a marshmallow who would pose no threat to the Big Government Establishment that continues to dominate Washington.

Fred Thompson is, in fact, a Washington insider and part of that Big Government Establishment through his eight years as a go-along Senator and even more years as a trial lawyer and Washington lobbyist.

For the past year, I have been preaching to conservatives that we should not align ourselves with those who have fatal flaws from a conservative perspective. The imminent entrance of Fred Thompson in the race doesn’t change a thing, for the reasons I have demonstrated here.

Conservatives, let’s keep our powder dry. The GOP has taken us for granted in supporting their political agenda. Conservatives should make candidates come to us, and let’s make them prove that they are worthy of our support.

http://www.heraldextra.com/content/view/218593/3/

Wednesday, April 18, 2007

Abortion’s underpinnings: The Root and Branch of Roe v. Wade

Judge John T. Noonan - Ninth U.S. Circuit Court of Appeals

Editor’s note: On Wednesday, the U.S. Supreme Court gave anti-abortion forces a victory by banning so-called partial-birth abortions. Criticisms of the court’s abortion rulings have been numerous since Roe v. Wade was decided in 1973. As professor of law at University of California at Berkeley, John T. Noonan (now a judge of the Ninth U.S. Circuit Court of appeals), shed particular light on the subject in the Nebraska Law Review (Volume 63, 1984) in an article entitled “The Root and Branch of Roe v. Wade.” Because of the importance of the abortion debate in today’s national dialogue, and because of Noonan’s unusual clarity, the Daily Herald is publishing his essay here. It should be noted that in 1992 the Supreme Court decided Planned Parenthood v. Casey, which made major modifications to some of the holdings in Roe v. Wade. But Noonan’s essay remains enlightening.

JOHN T. NOONAN

By root I mean the Jurisprudential source, by branch I mean the ultimate outcropping of the famous abortion rights case, Roe v. Wade. (1) The root is of greater importance than the issue is. It reaches to every constitutional right and liberty. The branch illustrates what is possible once the law severs correspondence with reality.

Whoever has the power to define the bearer of constitutional rights has a power that can make nonsense of any particular constitutional right. That this power belongs to the state itself is a point of view associated in jurisprudence with Hans Kelsen. According to Kelsen a person is simply a construct of the law. As he expresses it in The Pure Theory of Law, even the apparently natural physical person is a construction of juristic thinking. In this account it appears that just as we personify a corporation for legal purposes so we personify natural physical beings. There are no independent, ontological existences to which we respond as persons. Personhood depends on recognition by the law. (2)

A corollary of that position appears to be what has always seemed to me one of the most terrifying of legal propositions: there is no kind of human behavior that, because of its nature, could not be made into a legal duty corresponding to a legal right. When one thinks of the vast variety of human behavior it is at least startling to think that every variation could be converted into legal duties and legal rights. The proposition becomes terrifying when one thinks of Orwell’s 1984 or the actual conduct of the Nazi regime from which Hans Kelsen himself eventually had to flee. (3)

There is one massive phenomenon in the history of our country that might be invoked to support Kelsen’s point of view. That phenomenon is the way a very large class of human beings were treated prior to the enactment of the thirteenth and fourteenth amendments. When one looks back at the history of 200 years of slavery in the United States, and looks back at it as a lawyer observing that lawyers had a great deal to do with the classifications that made the phenomenon possible, one realizes that the law, in fact, has been used to create legal rights and legal duties in relation to human behavior that should never have been given a legal form and a legal blessing. To put it bluntly, law was the medium and lawyers were the agents responsible for turning one class of human beings into property. The result was that the property laws of the different states made it smooth and easy to transfer ownership of these human beings. The property laws resolved the questions that occurred at those critical junctions where humanity asserted itself either in the birth of a child to a slave or the death of the owner of a slave. The only question left open for argument was whether the human beings classified as property were realty or personality. In the inheritance cases the slave child was treated like the issue of an animal, compared again and again in legal decisions to the issue of livestock. (4)

Gross characterization of human beings in terms that reduced them to animals, or real estate, or even kitchen utensils now may seem so unbelievable that we all can profess shock and amazement that it was ever done. Eminently respectable lawyers were able to engage in this kind of characterization — among them Thomas Jefferson, who co-authored the slave code of Virginia, and Abraham Lincoln who argued on behalf of a slave owner seeking to recover as his property a woman and her four children who had escaped to the free state of Illinois. (5) Looking at such familiar examples and realizing how commonplace it was for lawyers to engage in this kind of fiction, we learn, I think, that law can operate as a kind of magic. All that is necessary is to permit legal legerdemain to create a mask obliterating the human person being dealt with. Looking at the mask — that is looking at the abstract category created by the law — is not to see the human reality on which the mask is imposed.

Masking of this kind even occurred in one case where the personhood of Blacks was put directly to the Supreme Court of the United States — The Antelope, (6) a case that takes its name from a ship captured off the coast of Georgia in 1821. Aboard were 281 Africans about to be brought into the United States as slaves. Federal law made it a felony to import slaves and prescribed that the President should rescue any Africans found in that condition and arrange for them to return to Africa. President James Monroe was about to carry out this law when agents representing Spanish and Portuguese slave traders claimed in federal district court that the Africans were Spanish and Portuguese property. They alleged that their principals were trading peacefully off the coast of Africa when their property had been captured by pirates who then illegally attempted to bring the property into the United States. This illegality, they asserted, should not taint their title. Please give us back our property, they asked. (7)

The United States District Attorney in Savannah, Richard Wylly Habersham, took the position that every one of the rescued African men and women was just as free as Americans would have been if they had been washed upon the shore of Algiers or Morocco and claimed by slave traders there. He put the argument directly to the district court that these were human beings that were not to be disposed of as property. The district judge disagreed as to the majority of persons before him and ordered them turned over to “their” owners; a small number, found to have come from an American ship, were freed. On appeal, the circuit court found the main problem to be how to distinguish between the Africans from the American ship and the Africans from the Spanish and Portuguese ships. The court resolved the problem by ordering a lottery to determine who was free — an eminently sensible solution if animals or other goods were being disposed of. (8)

The main issues were put before the Supreme Court of the United States in 1825. One group of lawyers, led by Francis Scott Key, pointed to the human reality, arguing that here was flesh and blood, that these Africans could not be treated like things or disposed of by a game of chance. Another group of lawyers, led by Senator John MacPherson Berrien, argued just as earnestly that only property was before the Court. The Supreme Court found that some of the Africans were people and some of the Africans were property. (9)

Three years later, after a period during which the status of which African was a person and which African was a thing was again litigated in the circuit court and the Supreme Court itself, 120 Africans were freed and thirty-seven became the property of Congressman Richard Henry Wilde of Georgia. Even with the most obvious kind of evidence before the Court as to the humanity of the class affected by the law, the justices of the Supreme Court had been capable of applying one category of law to one set of persons that left them free and another category — a mask — to a very similar group that left them enslaved in perpetuity. (10)

A much more familiar case of the same kind is Scott v. Sanford. (11) Here the black plaintiff attempted to assert his right to freedom in the federal court. The Supreme Court held that the federal statute that should have made him free was an interference with the property rights guaranteed by the Constitution to his owner. The Court applied the due process clause of the fifth amendment — gratuitously reading into this clause a concept of substantive due process — and held the statute invalid. The property mask dropped over Dred Scott was the means by which the Constitution was brought into play. As James Buchanan, the President at the time, happily put it, the Court had achieved “the final settlement” of the question of slavery in the Territories. (12) It was a final settlement curiously like Adolph Hitler’s “final solution” of “the Jewish question” in Germany.

Buchanan’s description, of course, was inaccurate. The Supreme Court could not resolve an issue that so fundamentally divided the nation. The legal mask was shattered by the Civil War. The thirteenth and fourteenth amendments were adopted. The legal profession forgot about its participation in molding the mask that made slavery possible. It is only in our time that the analogy seems vital.

Kelsen’s jurisprudence makes The Antelope and Dred Scott defensible decisions; according to it, there is nothing intrinsic in humanity requiring persons to be legally recognized as persons. The relevance of Kelsen’s reasoning was acknowledged in a modern case, Byrn v. New York City Health and Hospital Corporation, (13) decided a year before the Supreme Court decided Roe v. Wade. (14) In Byrn, Robert Byrn was appointed guardian ad litem of an unborn child and asserted that child’s constitutional right not to be aborted. His position was rejected by the majority of the Court of Appeals of New York, speaking through Judge Charles Breitel. Breitel quoted Kelsen explicitly to support his position that it was a policy determination of the state whether legal personality should be recognized or not. It was, Breitel stated, “not true that the legal order corresponds to the natural order.” (15) Breitel did not go as far as Kelsen’s statement that natural persons were juristic creations — Breitel seemed to assume that there might be natural persons — but he left the recognition of natural persons to the legislature. As New York, at this time, had already enacted a fairly radical abortion law, he held that the legislature had conclusively made the decision that left the unborn child outside the class of recognized humanity.

The dissent, written by Judge Adrian Burke, objected to this jurisprudence. In Burke’s view the reality of a person before the law was not dependent on a determination by the state. He contended that the state had no constitutional power to classify a group of living human beings as fit subjects for annihilation. (16) He insisted that if the state could make that kind of classification, it became the source of all legal rights. He observed that all the protections of the Constitution meant nothing if you or your group could be classified by the state so that you fell outside the class of human beings protected by the Constitution.

Roe v. Wade itself, decided a year later, was profoundly ambivalent — indeed, to speak bluntly, it was schizoid, in its approach to the power of the state to determine who was a person. The opinion was schizoid because the Court wanted to invoke rights that were not dependent on the state — the Court was trying to find a measure by which to invalidate state statutes. The precedents that the Court found to authorize it to act in this area of law were all cases that treated family rights as having a natural basis superior to the law of the state. The cases involved included Meyer v. Nebraska (17) and Pierce v. Society of Sisters, (18) recognizing a superior right of parents to educate their children; Skinner v. Oklahoma, (19) recognizing that a man has a natural right to procreate and so cannot be arbitrarily sterilized by the state. Loving v. Virginia, (20) where the natural right to marry was invoked in the course of invalidating a miscengenation statute; and Griswold v. Connecticut, (21) where the rights of the married were also asserted, in this case to hold unconstitutional a statute prohibiting the use of contraceptives.

All of these cases rested on the supposition that the family rights being protected were those of persons, and that these persons could not be unmade at will by the state. The natural law fundament of these decisions was camouflaged by their being couched in constitutional language; but the constitutional content was derived from nowhere except the natural law as it had taken shape in the traditions of the United States. At the same time that it invoked such precedents in Roe, the Court, when treating of the unborn, felt free to impose its own notions of reality.

In one passage the Court spoke of the unborn before viability as “a theory of life,” (22) as though there were competing views as to whether life in fact existed before viability. The implication could also be found that there was no reality there in the womb but merely theories about what was there. The Court seemed to be uncertain itself and to take the position that if it were unsure, nobody else could be sure. In another passage the Court spoke of life in the womb up to birth as “potential life.” (23) This description was accurate if it meant there was existing life with a great deal of development yet to come, as one might say a 5-year-old is “potential life” meaning that he or she is only potentially what he or she will be at twenty-five. The Court’s description was inaccurate if the Court meant to suggest that what was in the womb was pure potentiality, a zero that could not be protected by law. To judge from the weight the Court gave the being in the womb — found to be protectable in any degree only in the last two months of pregnancy — the Court itself must have viewed the unborn as pure potentiality or a mere theory before viability. The Court’s opinion appeared to rest on the assumption that the biological reality could be subordinated or ignored by the sovereign speaking through the Court.

The conflict, visible in Roe v. Wade between a natural law response to human reality and a Kelsenite freedom in recognizing human reality, was resolved in the Kelsenite direction in the cases that followed. In Doe v. Israel (24) the federal courts considered a statute recognizing the personhood of the unborn child in Rhode Island. The American Civil Liberties Union attacked the statute and persuaded the federal courts to hold it invalid. The courts actually took the position that Rhode Island’s statute was frivolous, that a single federal judge could hold the statute invalid, and that the judge need not even hear the biological evidence supporting the statute. The Supreme Court had determined who was the bearer of rights. A federal judge now did not have to look at the physical realities. Evidence that the unborn were not zeros was not to be permitted.

Similarly, in Floyd v. Anders (25) a small black boy had been aborted, but had survived abortion and had lived for twenty days before dying, apparently as a result of what he had suffered during the abortion. The state of South Carolina, adopting the common law that if a child survives an abortion but dies of the wounds, the offense is murder, prosecuted the doctor who had performed the abortion. The doctor sought to have the federal court enjoin the prosecution. Granting the injunction, Judge Clement Haynsworth observed that the Supreme Court had determined that the fetus in the womb is “not alive.” (26) This was a remarkable statement for a senior federal judge to make, as though whether one was alive or dead could be conclusively determined for a whole class of human beings by a ruling of the Supreme Court. Judge Haynsworth’s view, one might say, exaggerated a bit, but his opinion is a reading of what Roe v. Wade meant to a responsible federal judge. The implication of his reading was that the Supreme Court was the ultimate arbiter of life and death in the very fundamental sense of being able to say who was alive to assert rights.

In Danforth v. Planned Parenthood of Central Missouri, (27) the Supreme Court itself opted clearly for the Kelsenite position. A Missouri statute had given fathers a part in the abortion decision. The Court ruled that the statute was unconstitutional. Speaking for the Court, Justice Blackmun reasoned that it had already been determined that the state had no power to intervene in the abortion decision. Therefore, he concluded, the state had no power that it could delegate to fathers. His assumption was that the state was the only source of rights. That a father might have rights independent of delegation from a state was not treated as worthy of consideration or mention. (28)

If the rationale of Danforth had prevailed in the earlier parental right cases they would have been decided very differently. If the state is the source of all parental rights, then the state must be able to curtail those rights and to take away its delegation of them. A state could refuse to delegate its right to education to the parents. Only by recognizing rights superior to the state did the natural law precedents invoked by Roe v. Wade have intelligibility.

The progeny of Roe have confirmed the Kelsenite reading of Roe that there is no reality that the sovereign must recognize unless the sovereign, acting through the agency of the Court, decides to recognize it. This view would be psychologically incomprehensible if we did not have the history of the creation of the institution of slavery by judges and lawyers. With that history we can see that intelligent and humane lawyers have been able to apply a similar approach to a whole class of beings that they could see — that they were able to create a mask of legal concepts preventing humanity from being visible. A mask is a little easier to impose when the humanity concealed, being in the womb, is not even visible to the naked eye. (29)

Kelsenite logic permits the judges at the apex of a system to dispense with correspondence to reality. The highest court is then free, within the limits that the society in which it functions will tolerate, to be inventive. It may, as the Supreme Court of the United States has sometimes thought, be constrained by the language of the Constitution and the purposes of its makers. Or, as has also sometimes happened, the Court, viewing itself as the final expounder of the Constitution’s meaning, will exercise its inventiveness in creating new constitutional doctrine not dependent on text or purposes. Such doctrine — fantasy in the service of ideology — is “the branch” of Roe v. Wade. What then becomes possible was illustrated in 1983 by Akron v. Akron Center for Reproductive Health. (30) In this case a whole set of constitutional requirements were created on behalf of the claims of an abortion clinic, named with Orwellian aptness a center for “reproductive health.”

In Akron the only justification that Justice Powell, writing for the Court, gave for the main holdings was stare decisis — Roe v. Wade would not be reexamined. He acknowledged that stare decisis was “perhaps never entirely persuasive on constitutional questions.” (31) In fact, stare decisis has “often” been rejected by the Court, reversing itself and discarding its own interpretation of the Constitution as mistaken. Still, Justice Powell made the case swing on the precedent, declaring roundly that stare decisis “is a doctrine that demands respect in a society governed by the rule of law. We respect it today, and reaffirm Roe v. Wade.” (32)

Curiously enough, however, in the course of Akron the Court itself discarded one constitutional precedent. In Gary Northwest Indiana Women’s Service, Inc. v. Orr (33) the Court had specifically upheld a law requiring hospitalization for abortions performed in the second trimester. In Akron this precedent was silently set aside and it was not stated to be unconstitutional to require such hospitalization. (34)

The reason the Court gave for not following precedent on this constitutional point was that current medical statistics showed that second trimester abortions were not unreasonably dangerous to the women undergoing them. The statistics employed had been published after the trial court had heard the case. The implication of the opinion was that, in order to conform to constitutional requirements, any statute governing abortion would have to adjust constitutionally to the latest medical information. (35)

Looked at from one aspect this approach can be seen as ultimately subversive of Roe v. Wade itself. This approach called the Court back to a consideration of realities not controlled by judicial fiat. In a famous dissent, Justice Brandeis, arguing for overruling a line of bad constitutional precedents, declared that the Court should bring itself “into agreement with experience and with facts newly ascertained, so that its judicial authority may, as Mr. Chief Justice Taney said, ‘depend altogether on the force of the reasoning by which it is supported.’ “ (36) The roots of Roe are severed if the Court is willing to bring itself into agreement with experience and have its authority depend on the force of its reasoning.

In Akron, however, the Court, in general, held to the basic logic of Roe and discovered new dimensions of the Constitutional protection for abortion. The Akron ordinance required a person seeking an abortion to wait for twenty-four hours. Twenty-four hours was found to be too long. Justice Powell called it “arbitrary and inflexible.” (37) The requirement violated the Constitution.

In the so called “Abortion Funding Cases,” Justice Powell, writing for the Court, had said the state had a traditional and judicially-recognizable interest in encouraging childbirth. (38) The state’s interest shrivelled to almost nothing when a mere twenty-four hour waiting period was too great a burden on the person seeking an abortion. Beyond any constitutional theory and beyond any jurisprudential considerations, the holding of Akron appeared to reflect a good deal of impatience with anything in the way of the victory of an ideology. Impatience was satisfied by constitutional inventiveness, unrestrained by the text or the purposes of the Constitution.

A further holding of Akron was that the city could not require that a physician give counselling to the abortion seeker; the most the law could require was that some “qualified” delegate of the doctor provide counselling. (39) It was extraordinary that the Constitution could be found to speak so precisely as to what psychological advice could or could not be made available. The holding was also interestingly inconsistent with the general implication of Roe v. Wade as to the importance of the family physician. (40) In Roe the physician was treated as a heroic figure, one on whom the abortion seeker could depend, but when an attempt was made to build upon this deference to the doctor in a way that the Court found restrictive of the abortion liberty, the Court’s deference was swallowed up by its desire to extend the liberty as widely as possible.

Most strikingly of all, Akron held that there could not be a legal requirement that a woman seeking an abortion be informed that the being she wished put to death was a child, that the child was alive, and that the child was human. The Court treated this information as prejudicing the choice of whether to abort or not — as a kind of unfair interference with free choice. The ordinance was bad because it was designed “to influence the woman’s informed choice between abortion and childbirth.” (41) The holding went beyond the Kelsenite jurisprudential root and any mainline theory of constitutional interpretation. It was, indeed, the invention of a kind of censorship by the Court itself.

The logic of Akron in this respect, if taken just a little further, is that a state university or a city high school should not be permitted to teach biology. The facts that would have been provided to a woman under the Akron ordinance are the same kind of facts that would be provided in a modern course in biology. Such a course would inform its students of the unique chromosomal composition of the child that distinguishes the child as male or female and as animal or human. If students looking at a genetic sample under the microscope could not recognize the number, the shape, and the bonding patterns of the chromosomes — if they could not say whether the genetic specimen came from a simian being or from a human being — they would fail the course. Information enabling them to answer correctly might also “influence” their choice of abortion or childbirth.

A final provision of the Akron ordinance was that “the remains of the unborn child” be “disposed in a humane and sanitary manner.” (42) The Sixth Circuit Court of Appeals found the word “humane” impermissibly vague in a criminal statute. (43) The ordinance could, the court said, mean to “mandate some sort of ‘decent burial’ of an embryo at the earliest stages of formation. ...” (44) Justice Powell quoted this analysis and agreed; humane and sanitary burial was beyond the comprehension of a reasonable doctor. (45)

In this conclusion one can observe in the most concrete way the Court’s discomfort before reality. The Court cannot uphold a requirement of humane burial without conceding that the being who is to be buried is human. A mask has been placed over this being. Even death cannot remove the mask.

The Court’s denial of reality stands in contrast with what Andre Gide has written on the humane burial of an unborn child:

“When, morning came, ‘get rid of that,’ I said naively to the gardener’s wife when she finally came to see how everything was. Could I have supposed that those formless fragments, to which I turning away in disgust was pointing, could I have supposed that in the eyes of the Church they already represented the sacred human being they were being readied to clothe? O mystery of incarnation! Imagine than my stupor when some hours later I saw ‘it’ again. The thing which for me already had no name in any language, now cleaned, adorned, beribboned, laid in a little cradle, awaiting the ritual entombment. Fortunately no one had been aware of the sacrilege I had been about to commit; I had already committed it in thought when I had said get rid of ‘that.’ Yes, very happily that ill-considered order had been heard by no one. And, I remained a long time musing before ‘it.’ Before that little face with the crushed forehead on which they had carefully hidden the wound. Before this innocent flesh which I, if I had been alone, yielding to my first impulse, would have consigned to the manure heap along with the afterbirth and which religious attentions had just saved from the void. I told no one then of what I felt. Of what I tell here. Was I to think that for a few moments a soul had inhabited this body? It has its tomb in Couvreville in that cemetery to which I wish not to return. Half a century has passed. I cannot truthfully say that I recall in detail that little face. No. What I remember exactly is my surprise, my sudden emotion, when confronted by its extraordinary beauty.” (46)

If the Court could respond to Gide and understand what humane and sanitary burial is, it might also perceive the reality of the extraordinary beauty of each human being put to death in the name of the abortion liberty and concealed from legal recognition by a jurisprudence that substitutes a judge’s fiat for the truth.

John T. Noonan wrote the preceding analysis while serving as Professor of Law at University of California, Berkeley. Used by permission of Nebraska Law Review.

FOOTNOTES:

1. Roe v. Wade, 410 U.S. 113 (1973).

2. H. KELSEN, THE PURE THEORY OF LAW 95 (M. Knight trans. 2nd ed. 1967).

3. Id.at 113. Kelsen was far from being a monster. Indeed, as the author came to know from experience in Berkeley in the 1960s, he was the most gracious of hosts. Attacks on his methodology for so ruthlessly emptying law of all values are not attacks on the human being whose own values were hostile to Nazism, slavery, and the other dehumanizations that could find jurisprudential shelter in his analysis of law.

4. See, e.g,, Hearne v. Roane, 1 Va. Ch. (Wythe) 90 (1790). See generally 3. Noonan, PERSONS AND MASKS OF THE LAW 39-43 (1976).

5. See, e.g., J. Noonan,, supra note 4, at 50-54 (Jefferson), Chroust, Abraham Lincoln Argues a Pro-Slavery Case, 4 AM. J. LEGAL HIST. 299, 299-308 (1960).

6. 23 U.S. (10 Wheat.) 88 (1825).

7. See generally J. NOONAN, THE ANTELOPE; THE ORDEAL of THE RECAPTURED AFRICANS IN THE ADMINISTRATIONS OF JAMES MONROE AND JOHN QUINCY ADAMS (1877).

8. Id. at 44 (Habersham’s position); 57-60 (judgment of the district court); 65 (lottery).

9. The Antelope, 23 U.S. (10 Wheat) 6B, 66 (1825) (arguments and judgment).

10. The Antelope, 25 U.S. (12 Wheat) 550 (1827). See also J. Noonan, supra note 7, at 135 & 151 (noting the number freed and the number enslaved).

11. 60 U.S. (19 How.) 393 (1857).

12. James Buchanan, Third Annual Message to Congress, 4 Papers of the Presidents 3085-86 (J. Richardson ed. 1913).

13. 31 N.Y.2d 194, 288 N.E.2d 887, 335 N.Y.S.2d 39O (1972), appeal dismissed, 410 U.S. 940 (1973).

14. 410 U.S. 113 (1977).

15. Byrn v. New York City Health & Hosp. Corp., 31 N.Y.2d 194,202, 286 N.E.2d 887, 889, 335 N.Y.S.2d 390, 393 (1970).

16. Id. at 209, 286 N.E.2d at 893, 335 N.Y.S.2d at 399 (Burke, J., dissenting).

17. 262 U.S. 390 (1923).

18. 268 U.S. 510 (1925).

19. 315 U.S. 535 (1942).

20. 388 U.S. 1 (1987).

21. 381 U.S. 479 (1965).

22. Roe v. Wade, 410 U.S. 113, 162 (1973).

23. Id, at 163.

24. 358 F. Supp. 1193 (D.R.I.), aff’d 482 F.2d 156 (1st Cir. 1973), cert. denied, 416 U.S. 993 (1974).

25. 440 F. Supp. 535 (D.S.C. 1977), vacated, 440 U.S. 445 (1979).

26. Id. at 539.

27. 423 U.S. 52 (1976).

28. Id. at 67-72.

29. See J. Noonan, A Private Choice: Abortion in America in the Seventies 153-62 (1979).

30. 103 S. Ct. 2481 (1983).

31. Id. at 2487.

32. Id.

33. 451 U.S. 931 (1981), aff’g 496 F. Supp. 894 (N.D. Ind. 1980).

34, City of Akron v. Akron Center for Reproductive Health, 103 S.Ct. 2481, 2497 (1983).

35. Id. at 2496.

36. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412-13 (1982) (Brandeis, J., dissenting) (quoting Passenger Cases, 48 U.S. (7 How.) 283, 470 (1849)).

37. City of Akron v. Akron Center for Reproductive Health, 108 S.Ct. 2481, 2503 (1983).

38. Maher v. Roe, 432 U.S. 464, 478 (1977).

39. City of Akron v. Akron Center for Reproductive Health, 103 S.Ct. 2481, 2502 (1983).

40. See Roe v. Wade, 410 U.S. 113, 165.68 (1973).

41. Akron, Ohio, Codified Ordinances No, 160-1978, § 1870.06 (1978), quoted in Akron Center for Reproductive Health, Inc. v. City of Akron, 651 F.2d 1198, 1206 n.5 (6th Cir. 1981). Justice Powell in his opinion for the Court does not mention the specific information about the child’s humanity, but holds the whole section invalid. City of Akron v. Akron Center for Reproductive Health, 103 S.Ct. 2481, 2499-2500 (1983).

42. Akron, Ohio, Codified Ordinances No. 160-1978, § 1870.16 (1978).

43. Akron Center for Reproductive Health v. City of Akron, 651 F.2d 1198, 1211 (1981).

44. Id.

45. City of Akron v. Akron Center for Reproductive Health, 103 S. Ct. 2481, 2504 (1983).

46. A. GIDE, LAST JOURNALS 95 (R. Stookey trans. 1979).

This story appeared in The Daily Herald on page A6.

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