CHAPTER 10 The Moral Turn in Jurisprudence

The story used to be recognized at once by several students in my class, as soon as the first ingredients were set in place. But over the years I found that my students were less and less familiar with this venerable account from the Bible in Second Samuel: the story of David and Bathsheba and Nathan.

On hearing this story, “David’s anger was greatly kindled, and he said to Nathan: ‘As the Lord liveth, the man that hath done this deserveth to die; and he shall restore the lamb fourfold, because he did this thing, and because he had no pity.’

“And Nathan said to David: ‘Thou art the man.’ ”¹

Just why did Nathan do it that way? He used a rather rough analogy, to put it mildly. But the description was impersonal, and with that move he removed the personal details of David’s situation and brought to his side the logic of a moral judgment: When we say it is wrong for some men to hold others as slaves, for whom would it be wrong to do such a thing? For anyone, for everyone.

Nathan drew David in to acknowledge that he would call that act wrong regardless of who had done it. Then it merely remained for Nathan to point out: that someone is you. I used to raise this matter with my students just to point out that moral logic was there, recognized long before analytic philosophers had the wit to start pointing out that “logic of morals.” (And it had another utility for me, in dealing with people like that one student of mine who suggested that the logic of morals was something I invented myself in the ’60s for the sake of ruining his weekends in the ’70s.)

As we have seen, that moral logic is filled out when it is combined with Aquinas’s first law of practical reasoning: that the good is that which we are obliged to do, and the bad and wrong are the things we are obliged to refrain from doing. And so if it is wrong to torture infants, then it is the kind of thing that we are obliged to refrain from doing, the kind of thing that we may rightly be restrained from doing—or punished for doing. That was the classic connection between the logic of morals and the logic of law. When we come to the recognition that it is wrong for anyone, for everyone, to torture a child, we lay the groundwork for forbidding that wrong to anyone, to everyone. We may forbid it, that is, with the force of the law. That does not mean, of course, that we are obliged to bar with the law everything that may count as a “wrong.” Prudence must always be at work. But it makes a critical difference that we get clear in the first place about the ground for banning anything: that it is a wrong serious enough to forbid.

That logic was evidently caught in the Bible, in the confrontation between David and Nathan, well before Aristotle connected the dots for us.

The most explicit and important application of this principle has come to us in our understanding of “bills of attainder.” In forbidding bills of attainder, the Constitution requires that we specify in impersonal terms the nature of the wrong the law would punish, and not merely list names of people who are to be condemned or punished. Legislators need to get clear on the ingredients that define the wrong they would forbid; they cannot get around that troubling point by simply naming names. That was the problem that arose when Richard Nixon alone was deprived of control of his presidential papers. Justice Brennan remarked at the time that Mr. Nixon was a “class of one.”² But there was a need for the Congress and the executive to explain more precisely what that “class” was. “Resigning the presidency” could not supply the ground of a punitive action on the part of Congress when the very purpose of the resignation and the pardon from President Ford was to preclude a punishment. This constitutional discipline of defining the law in impersonal terms brings out a moral dimension of the separation of powers that has rarely been noticed. John Locke caught the sense of this in his Second Treatise:

[I]n well-ordered commonwealths, where the good of the whole is so considered as it ought, the legislative power is put into the hands of divers persons who… have by themselves, or jointly with others, a power to make laws, which when they have done, being separated again, they are themselves subject to the law they have made; which is a new and near tie upon them to take care that they make them for the public good.³

In other words, legislators are cautioned not to legislate for others what they would not be willing to see applied, with full force, against themselves.

The strands then are drawn across the epoch—from the Bible, from Aristotle in the Politics, from Lincoln on the issues that roiled the United States in his own day, and from the politics of abortion in our own time; and those strands, drawn from different times, reflect that connection between the “logic of morals” and the “logic of law.” And yet the remarkable story of our own age is the trick of the eye that has screened, or even blinded, the vision of people trained in the law. What has been thoroughly screened from view is the moral logic that has ever governed and pervaded the very idea of “law.”

Take as a quick, telling example, this problem: We enact a law that bars discrimination on the basis of race in private restaurants and hotels open to business with the public. These businesses, which we used to call “public accommodations,” virtually beckon members of the public to enter the premises as potential customers. Now what do we understand that we have enacted? One might, implausibly, suggest that enacting this amounts to telling the public: This rule to bar discrimination on the basis of race helps to mark off the character of a “just” society; we are encouraging everyone who shares this judgment to bring his conduct in line with the principles we proclaim here. We haven’t heard that construction offered to us because that is emphatically not what we understand a “law” to be. A real “law” is binding—it displaces, or closes down, private choice or personal freedom—in this case, private choice and personal freedom to engage in racial discrimination in “public accommodations.” There is an obligation to obey the law. And to say that the law is binding in that way is to say that it may be rightfully enforced. Enforced on whom? On anyone who comes within its terms. In the case of this particular law, it would be the owners and managers of businesses open to these transactions with the public.

And that draws us to the point that stands at the very threshold of law for all of the great writers in political philosophy: that this state of affairs calls out for “justification.” Why is it that some men have the power to have their edicts treated with the force of law, obliging everyone else to obey?

This is precisely the moment when we come up against a hard binary choice that cannot be evaded. On the one hand, we may say that the exercise of power amply supplies its own justification. On this construal of law, those who succeed in gaining and holding power have, through those very exertions, established their fitness to rule. In other words, it is a prettified version of Might Makes Right, the Right of the Strongest to Rule, as Rousseau so aptly put it. It may be decorously covered over, to be sure, with Latin phrases of wisdom drawn from venerable sages, but they are simply formulas to cover the rule of the powerful. There is no lack of urbane people who have accommodated themselves to this maxim at different times under various local circumstances. Some might even, with Montesquieu, thank God “that I was born a subject of that government under which I live; and that it is His pleasure I should obey those whom He has made me love.”⁵ Or they might take the brash line of Justice Holmes, seeking a law serenely purged of moral judgment and settling comfortably, as he did, with the law as the Rule of the Strong.

If we hold back from taking that path, the only coherent alternative is to insist that this exercise of power over other men must take on the discipline of justifying itself. To justify: to show why something is rightful or just. When we override the freedom of moral agents, people who can deliberate about the things that are good or bad for themselves, can we actually show, as the ground of our policy, a principle that would be valid and rightful for anyone who came under the commands of this law? Which is to say, we are asking whether there is a moral ground of justification for that law. And if we take that path, we open ourselves to the obligation to treat the matter of “justification” in the most serious manner: we must insist on evidence and reasons, tested in the most demanding and principled way.

But beyond the distraction of labels, we need to be clear that with that simple choice, we have chosen here the moral reasoning of the Natural Law. And we can remind ourselves that this choice of the moral path—the path of justifying the law we would impose on others—is indeed the most natural path. It is the path that ordinary people are most naturally disposed to follow when they find themselves engaged in arguments about the most serious things. Once again, in the style of C. S. Lewis, we could repair to the conversation and reflexes of children. In that vein, I raised the question earlier (in chapter 2 above) about a young boy set upon by schoolmates who rough him up and steal his lunch money: It was quite implausible to think that the child would feel that his assailants were right to attack him, that their very success in overpowering him meant that right was on their side. The child understands, as part of his natural reactions, this cardinal point in political teaching: that power itself cannot be the source of its own justification, that the success of some people in overpowering others cannot itself establish the rightness of the act. In his own way, the child understands what Rousseau put forth with sharp, eloquent force: “To yield to the strong is an act of necessity, not of will. At most it is the result of a dictate of prudence. How, then, can it become a duty?” As Rousseau said, “To admit that Might makes Right is to reverse the process of effect and cause”: “The mighty man who defeats his rival becomes heir to his Right. So soon as we can disobey with impunity, disobedience becomes legitimate. And since the Mightiest is always right, it merely remains for us to become possessed of Might. But what validity can there be in a right which ceases to exist when Might changes hands?”⁶

I would make my bet that a jury of seven-year-olds would grasp that essential point, even without Rousseau’s winged prose. The average seven-year-old will understood what evaded the well-read Justice Holmes.

How is it then that, for years, lawyers and judges have talked themselves into a state of not seeing the pervasive moral logic of the law, the logic that has underlain and pervaded what they do every day? How can we account for the fact that most lawyers we encounter will consider “morality” or “moral concerns” as something extrinsic to the law, something tangential and rarely to be addressed—and not the matter that stands at the very core of law? Have they lost that simple insight from Aristotle: that the law is grounded in the enduring nature of one kind of creature, the only creature that can honor a contract or obligation—or respect a law—even when it runs counter to his own interests and appetites? Dr. Johnson famously said that one could know a man for years without knowing how good he is at hydrostatics, but one can’t be with him for minutes without forming some estimate of his character. As Johnson said, “We are perpetually moralists, but we are geometricians only by chance.”⁷ So we earnestly wonder: What is there in the training of lawyers that screens out from their sight the plainest things in those divided human creatures they have all about them as clients, adversaries, or in-laws? The readiest answer, I suppose, is that when it comes to the education of lawyers, Justice Holmes has won. We recall again his hope that “every word of moral significance could be banished from the law altogether.”

In all strictness, there is not exactly a choice between two moral paths, for the willingness to opt for the Rule of the Strong marks a decisive turning away from any trace of moral concern that the exercise of powers over others must call out for a justification. My own sense of things is that the most natural reflex of human beings, as we have come to know them, is that they are drawn to the second path as a matter of course, whether on politics or on any other matter in which they have serious interests at stake. To insist that those men and women who govern me need to establish the justification for the policies they are making binding on me is, I would contend, the most natural response to this exercise of power. And in the same way, the men and women who take seriously the obligation to explain that justification—to assemble evidence and reasons that are compelling—are doing the most natural thing. Without sounding the trumpets or unfurling the banners, they are doing a jurisprudence of Natural Law.

And was this not the choice disclosed to us at the very beginning of the American republic? Was this not what James Wilson had crystallized in the first case that elicited a string of opinions set down by the Supreme Court of the United States, the case of Chisholm v. Georgia (1793)? As Wilson said, the law in America would be placed on a different foundation from that of the law in England. William Blackstone himself had said that the law in England issued from the command of the sovereign: “The principle is, that all human law must be prescribed by a Superior.” But in America, Wilson wrote, “Laws derived from the pure source of equality and justice,” he wrote, “must be founded on the CONSENT of those, whose obedience they require. The Sovereign, when traced to his source, must be found in the man”⁸—that is to say, a creature of reason who can judge the justification for the government and the laws under which he is living. There it was in its starkest form: the difference between (1) a legal positivism, unadorned, with the law claiming its sanction on the strength of power alone, as opposed to (2) a law that needs a moral justification for the acts it forbids and the good ends that it enjoins. With that move it should have been clear: the choice of the Founding was the path of Natural Law.

That is the critical “turn” we take that marks our engagement in the work of Natural Law: that central, pervading discipline that offers and tests the justifications for our law. And we may make that turn even when we are wholly unaware of “theories” contending over the ages, with plausible and implausible versions of the Natural Law. The turn I have in mind is what we see every day as serious legislators and lawyers do the work of framing the justifications for the law. Perhaps the most dramatic example in our own time may be found in the performance of the lawyers for the state of Texas in a case called Roe v. Wade (1973). The brief they composed managed to draw upon the most up-to-date evidence on embryology, woven with principled reasoning. The lawyers would probably have been surprised if anyone had remarked at the time that they were offering, in their work, a notable example of the moral reasoning of the Natural Law. But the brief they composed stands in the most striking contrast to the dissenting opinions that were struck off by two seasoned jurists, Byron White and William Rehnquist. In this instance, the Natural Law was not set off against any claim for the Rule of the Strong. It was set off rather against a kind of mechanistic jurisprudence, which took as a matter of high conviction—and pride—that the judges would steer around those questions of moral substance that stood at the heart of the case. The positions that White and Rehnquist took in that case would establish the approach and character that would define “conservative jurisprudence” for the next forty years and more.

In our James Wilson Institute in Washington we hold a senior seminar, meeting twice a year, bringing together some rather gifted professors of philosophy and law along with some notable figures on the federal bench who have been interested in seeing the case made anew for Natural Law. For one session we decided that we would look back with fresh eyes at the briefs and arguments that were presented in Roe v. Wade, a case that has become iconic now in our law and politics. It is the case that has transformed and poisoned hearings over the confirmation of judges appointed to the Supreme Court, and indeed for people appointed to federal judgeships at all levels. For liberals, every appointment of a conservative administration threatens to install a judge who will be willing to overrule Roe v. Wade one day. That, more than anything else, has made these hearings an occasion for scorched-earth warfare whenever a supposedly conservative administration brings forth a nominee. But as we returned to that now classic case, which we thought we knew well, the reading of the briefs dealt us some genuine surprises.

I had not begun to think seriously about abortion until the late 1960s, and the book that made a difference in shaping my own understanding was a book of essays edited by John Noonan for Harvard Press in 1970, The Morality of Abortion. And within that book the essay that made such a decisive difference for me was the one written by the theologian Paul Ramsey. The essay was titled “Reference Points in Deciding about Abortion.” Ramsey traced the development of the fetus and embryo back stage by stage, pointing out, for example, these interesting markers. In his words:

· Between the 18th and 20th week it is possible to hear the fetal heartbeat with a simple stethoscope….

· After 12 weeks brain structure is complete, although the fetus is only 3 ½ inches long… [and] a fetal heartbeat can be monitored by modern electrocardiographic techniques via the mother.

· By the end of the ninth or tenth week the child has local reflexes such as swallowing, squinting, and movement of the tongue. By the tenth week he is capable of spontaneous movement, without any outside stimulation.

· At eight weeks, there is readable electrical activity coming from the fetal brain. Fingers and toes are now recognizable.⁹

As Ramsey traced the development back, he finally reached the point that proved, for me, telling and decisive: there is nothing we have now, genetically, that we did not have when we were that zygote, no larger than “the period at the end of a sentence.”¹⁰ It was all there—the genes that would determine our coloring, our height, our allergies, our disposition to certain maladies and diseases. And we ought to know by now that if any one of us had been destroyed at that stage, we would not have been the child delivered at the end of the next pregnancy. That zygote alone was you or I.

But as the seminar with the professors and judges returned to the original briefs in Roe v. Wade, we looked at them again through the lens of our concern about conservative jurisprudence. And something now sprung out: the lawyers for the state of Texas had set forth, in their brief, an even richer form of the essay produced earlier by Paul Ramsey. It was richer in that it drew more deeply and precisely on the evidence of embryology. It was richer also in the way it wove that evidence with principled reasoning. In that way, it managed to bring forth a compelling moral case for the law that cast protections around offspring developing in the womb.

But as the brief took that form, it defied the cliches that had been cast on this issue from the conservative as well as the liberal side. From the liberal side we would hear that only a “religious” perspective on abortion could induce people to see a real human being in that offspring in the womb. And from the conservative side one would hear that a moral judgment on abortion was a “value judgment” that should be left to the legislatures of the states. The brief for Texas sought to show that this was not a matter either of religious belief or the arbitrary enactment of a mere opinion (a “value judgment”). The brief drew deeply on the findings of embryology to show that the offspring of human beings is human at every stage of its development; that the offspring undergoes no change of species; that it is a separate organism, with a genetic definition of its own, and not part of the body of the mother. And of course the laws on homicide will not be affected by any alterations that this small human begins to manifest as it becomes larger, with a beating heart and features more articulated. The killing of an older, heavier man is not a more serious murder than the killing of a small child.

In the first place, the brief stated the key points that stand at the very root of the matter: “It most certainly seems logical that from the stage of differentiation, after which neither twinning nor recombination will occur, the fetus implanted in the uterine wall deserves respect as a human life. If we take the definition of life as being said to be present when an organism shows evidence of individual animate existence, then from the blastocyst stage the fetus qualifies for respect. It is alive because it has the ability to reproduce dying cells. It is human because it can be distinguished from other non-human species, and once implanted in the uterine wall it requires only nutrition and time to develop into one of us.”¹¹

We have here, as Professor Robert George has said, a creature with the power to drive its own growth and to integrate the features of its own development.¹² The offspring is evidently “alive” and growing. And it cannot be anything other than a human being. If it were not human, an abortion would be no more “indicated” or relevant than a tonsillectomy.

As the lawyers for Texas went on to unroll their case, they offered an even richer, more fetching account than Paul Ramsey had set down:

· At the end of the first month the child is about 1/4 of an inch in length. At 30 days the primary brain is present and the eyes, ears, and nasal organs have started to form. Although the heart is still incomplete, it is beating regularly and pumping blood cells through a closed vascular system. The child and mother do not exchange blood, the child having from a very early point in its development its own and complete vascular system. Earliest reflexes begin as early as the 42nd day. The male penis begins to form. The child is almost 1/2 inch long and cartilage has begun to develop. [Emphasis added.]

· Even at 5 1/2 weeks the fetal heartbeat is essentially similar to that of an adult in general configuration. The energy output is about 20% that of the adult, but the fetal heart is functionally complete and normal by 7 weeks….

· By the end of the seventh week we see a well-proportioned small scale baby. In its seventh week, it bears the familiar external features and all the internal organs of the adult, even though it is less than an inch long and weighs only 1/30th of an ounce. The body has become nicely rounded, padded with muscles and covered by a thin skin. The arms are only as long as printed exclamation marks, and have hands with fingers and thumbs. The slower growing legs have recognizable knees, ankles and toes…. [Emphasis added.]

· The new body not only exists, it also functions. The brain in configuration is already like the adult brain and sends out impulses that coordinate the function of the other organs. The brain waves have been noted at 43 days…. The heart beats sturdily. The stomach produces digestive juice. The liver manufactures blood cells and the kidney begins to function by extracting uric acid from the child’s blood. The muscles of the arms and body can already be set in motion. [Emphasis added.]

· After the eighth week no further primordia will form; everything is already present that will be found in the full term baby. As one author describes this period: “A human face with eyelids half closed as they are in someone who is about to fall asleep. Hands that soon will begin to grip, feet, trying their first gentle kicks.” [Emphasis added.]¹³

In light of all this, I continue to find it remarkable to hear that public opinion may change on abortion because we know so much more about the baby in the womb than we did in 1973, when Roe was decided. For that is so patently false. The brief for Texas showed how precise and deep already was our knowledge of the child in the womb. And perhaps the most jolting refutation on that point comes in the decision that the lawyers cited from a case in New York in 1953, Kelly v. Gregory—twenty years before Roe. The court dealt there with the challenge emerging already to the laws on abortion: that the offspring was merely a part of the body of the mother and that a woman should have the sovereign control of her own body. But even in 1953 the study of embryology was not exactly in an antediluvian state. The court in New York explained matters in this way:

We ought to be safe in this respect in saying that legal separability should begin where there is biological separability. We know something more of the actual process of conception and fetal development now than when some of the common law cases were decided; and what we know makes it possible to demonstrate clearly that separability begins at conception.

The mother’s biological contribution from conception on is nourishment and protection; but the fetus has become a separate organism and remains so throughout its life. That it may not live if its protection and nourishment are cut off earlier than the viable stage of its development is not to destroy its separability; it is rather to describe the conditions under which life will not continue.¹⁴

With this kind of statement, amplified by the brief for Texas, the materials were in hand to deal as precisely and comprehensively with the substantive question as we might ever deal with it, even today. In the light of that fact, it becomes even more illuminating to look at the dissents written in Roe and in the companion case of Doe v. Bolton by William Rehnquist and Byron White. Only Rehnquist wrote in dissent in Roe, and White wrote the main dissent in Doe. Both of these opinions sought to steer around the substance of the case, or step around it gingerly. That could be taken, in the minds of the justices, as one of the cardinal virtues of their manner of writing. With this oblique style of writing, they were addressing the case without truly addressing the wrong, or the injury, that the law was seeking to reach. Their slender achievement, if we can call it that, is that they managed to preserve this critical distance from the substance of the legislation only by displaying a thorough obliviousness to the most telling points of evidence and reasoning that were assembled in the brief for Texas. And yet they couldn’t quite prevent themselves from letting certain muffled judgments leak out about the law they were trying to address.

With any serious attention to the argument in the brief from Texas, White and Rehnquist should have understood at once that the brief offered ample reasons to refute the very premises that White and Rehnquist were setting down to judge laws on abortion. Justice Rehnquist thought that some, but by no means all, restrictions on abortion were constitutional. He took it as given that a state could not outlaw abortions “where the mother’s life is in jeopardy.” But as he noted, even the majority on the Court was willing to concede that restrictions might be justified late in the pregnancy,¹⁵ presumably because the offspring simply comes to resemble more and more the being that would soon be recognized as a child. But if Rehnquist had paid attention to the depth of the arguments and the supporting facts in the brief, it should have been clear to him that the gradation of trimesters was utterly irrelevant to the status of that small human being, which had never been anything other than a human being through the entire length of the pregnancy. The height and weight of a human being is quite irrelevant to the question of a homicide. The question is just why a difference in age bore at all on that question, once it was clear that we were dealing with nothing other than a human being.

That curious screening or blindness was all the more striking in Justice White’s dissent in Doe v. Bolton. For White was even more emphatic than Rehnquist about the grounds on which abortions could be regarded, in his judgment, as not only unjustified, but debased:

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons—convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure….

It is my view, therefore, that the Texas statute is not constitutionally infirm because it denies abortions to those who seek to serve only their convenience rather than to protect their life or health. [Emphasis added.]¹⁶

The point was as sharply expressed there as it may ever be. And yet why did it not yield to a judgment even sharper and clearer: that convenience, or the avoidance of embarrassment, could not possibly be taken in any instance as a justification for killing any other human being? But that was not the judgment that White offered. Instead, he transmuted the issue into a question of the right of the people and legislatures to balance competing “values”:

The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court’s judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. [Emphasis added.]¹⁷

It was telling that, for White, the matter was now transformed from the hard truth about destroying a human life to the task of balancing utilities and values. In the course of that move, the fetus was reduced to merely a “potential” life. White ignored the commanding central proof in the brief for Texas: the offspring in the womb, powering or integrating its own growth, was never merely a potential life; it was nothing less than a living human being from its first moments. In White’s hands, that inescapable truth—which should have stood as the predicate for any serious discussion of abortion—was treated as a matter hardly even worthy of notice. But even worse, the nature of the harm and the victim were now dramatically transmuted. For what, in White’s judgment, had the Court now done?

[T]he people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand.¹⁸

The killing of the child—the grave concern that had brought forth the law—was now displaced as the main question of harm and justice in the case. The harm done to the fetus was replaced now with the harm visited on the people and legislatures in the separate states, as they were barred from balancing the question of how much they value the life of a child when set against the interests and convenience of a pregnant woman. This line of reasoning becomes intelligible only if one has removed from the question before the Court the very object of the law in barring the killing of small human beings.

Both White and Rehnquist fell back into the familiar groove of claiming, as White had, that there was nothing in the “language or history of the Constitution to support the Court’s judgment.”¹⁹ To reach its result, said Rehnquist in his dissent to Roe, the Court had to “find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” A majority of the states, he noted, have had restrictions on abortion going back a hundred years, all of which suggested that the Fourteenth Amendment was never understood to entail a right to abortion. And then he invoked a talismanic phrase, saying that the right to an abortion could not be claimed to be “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”²⁰

This was, again, the familiar response of conservative jurisprudence: appeal to “tradition” as a way of evading the vexing question of whether the practice in question is, in any serious reckoning, morally defensible or indefensible. Justice Scalia was ever emphatic on this point, contending that we would find a ground of discussion far less contentious, far less open to political quarreling, if we appealed to the historical record rather than invite an argument over moral truths. But as we have come to see, arguments over the Second Amendment, or anything else of consequence, can be counted on to elicit rival, contentious readings of the historical record. And yet that has not shaken the confidence of conservative judges that the appeal to tradition has a beckoning value precisely because it is a ground of judgment safely distant from the need to weigh the moral justifications for acts of legislation.

It may be worth stepping back for a moment and reminding ourselves that, for all of their differences, the dissenting justices and the lawyers for Texas in Roe were coming down on the same side. With all of the gyrations and indirections, the dissenting judges were finally saying that they would have sustained that law on abortion in Texas. And yet the differences between the brief and the dissenting opinions ran deep. The dissenters could come to the threshold but not speak those simple, magic words: that the law in Texas was “justified.” They did not wish to speak those words, for they wished to avoid casting judgments on the substance of the law. The judges, we might say, were governed by a “theory”—a theory that told them what was decorous or indecorous for judges to do in judging acts of legislation.

In sharp contrast, we might aptly say that the lawyers for Texas acted “naturally”: They sought to show in a strenuous way just why the law in Texas was “justified”—why it was indeed “just” and rightful as it imposed a binding, uniform rule and removed the freedom to order the killing of a small human in the womb. As I have suggested, we have trouble seeing what was natural in what the lawyers were doing because they were acting on precepts of the Natural Law so woven in common sense that we are hardly even aware of them.

But what is more remarkable is that this “natural” reflex of the lawyers in Texas had managed to sustain itself despite several generations of teaching in the law schools determined to root it out. As we have seen, Justice Holmes marked the critical turn in legal teaching when he proclaimed the hope of producing a science of “law” cleansed of “every word of moral significance.” For Holmes, the majority claimed its authority to rule precisely because it had secured the strength to enact a law and impose its will. Its edicts should not be challenged by judges invoking those airy standards of judgment known mainly to philosophers. Hence Holmes’s famous observation that the role of the judge was to stand back and “let the dominant power have its way.”²¹ But in a civilized manner, of course. Or as he said on another occasion, “If my fellow citizens want to go to Hell I will help them. It’s my job.”²²

Lawyers tutored in this curriculum might have thought that they had said quite enough if they noted that the laws on abortion in Texas had been debated and enacted by reasonable men and passed in accordance with legal procedures quite settled and known. Which is to say, the legislators simply had the power to enact the law, with the trappings of legality. But the lawyers for Texas did not take that path of the Rule of the Strong. They engaged rather an older reflex, which had survived the legal revolution wrought by Holmes and his epigones because it was bound up with something more deeply planted in human nature and the rule of law. The lawyers for Texas understood that the law worked by closing down personal choice and replacing private freedom with a uniform public rule. What kicked in for the lawyers for Texas was the irreducible moral sense: if we seek to close down the freedom of people on any point, or close down their private choice, we are obliged to show that we have, as the ground of our policy, a principle of justice that would hold its validity for everyone who comes under the law. Those lawyers had taken the moral turn, perhaps without any lingering awareness that they had taken it.

The simplest thing to be said here is that the lawyers for Texas did the most “natural” thing, even though it ran counter to the precepts that had been taught so persistently in the schools of law for over a hundred years. The law in Texas barred the freedom of people to kill offspring in the womb for matters of convenience or advantage or for anything less than the peril posed in childbirth to the pregnant woman. With that sense of the gravity of the law, the lawyers for Texas set about assembling the empirical evidence and the moral reasoning that would justify the law in casting its protections on that nascent being in the womb. And as the lawyers for Texas summoned the discipline to face that task in a demanding way, they did more than enough to show that they were engaged in a jurisprudence of Natural Law.

But let us suppose for a moment that the dissenters in Roe and Doe had been willing to do the work—that they had been willing to put on the record the robust moral defense of those laws in Texas that the lawyers had so diligently and artfully composed for them. Still, we might ask, what difference would all of this have made for Roe v. Wade? The answer, I think, reveals itself readily, for it takes little imagination to see that a move of that kind would have put a heavier burden on Justice Blackmun to sustain his opinion for the Court and draw allies to his side. The dissenting opinions would have exposed Blackmun’s opinion, in the plainest way, as a caricature composed of half-truths and untruths.²³ Even Blackmun could have seen that his argument would not have stood up against the array of empirical evidence that formed that brief for the state of Texas.

A telling clue in this respect was provided in an incident that offers a denouement to this story. It is a story I tell with some mild apology, for it has been withheld for years out of a decorous concern for things too seriously revealing said in a private context. But it is now a long while ago, and the story bears a lesson too important to remain unheard. Without revealing more than strictly needs to be said, the incident involved a dinner party in Washington not long after the decision in Roe v. Wade was announced.²⁴ Senator James Buckley was still sufficiently steamed by the decision that he was willing to engage at table with a friend from his days at Yale, Justice Potter Stewart. Stewart had helped form the majority in Roe. Buckley had the gravest moral objections to abortion, and he expressed his deep incredulity over the decision: it seemed to betray, he thought, a flippant disregard for the facts known well to embryology about the development of the child in the womb. He then rolled off, in a series of steps, the emerging features of the embryo turning into a fetus, resembling more and more the child we would come to know after birth. From the accounts I have heard, Senator Buckley’s account ran along the same lines that I had found so riveting as they were unfolded by the lawyers for Texas in the case. As Buckley unfolded the sequence of the development of the embryo, with its implications quite unmistakable, Stewart was apparently jarred. As the story goes, Stewart recoiled; he responded with heated disbelief that this account could be true. But the details cited by Buckley happened to be quite undeniably true: they were confirmed in the textbooks on embryology and obstetric gynecology—and as Buckley pointed out, they had been set forth quite amply in the brief. Had Stewart not read the brief?

Whether he had read the brief or not, or read it with any care, his surprise virtually makes my case: For can we not readily imagine the effect on Stewart if the dissenting opinions had simply brought forth the mass of evidence so carefully arranged in the brief for Texas? It was merely the short rehearsal of that evidence that had produced a jarring effect on Stewart when it was sprung upon him by James Buckley. At the very least, we suppose that Stewart would have been given pause. And any doubts of his own could have encouraged the doubts of others, or at least undermined the glib certainty of his other colleagues. The result might have been a more closely divided Court, too divided perhaps to offer to the public such a momentous decision. The judicial politicians on the Court, doing their calculations, might have decided to hold back. Or a majority might even have been assembled to sustain the laws on abortion, as a majority on the Court had come together just two years earlier, in United States v. Vuitch, to sustain a law on abortion in the District of Columbia.²⁵

But whether or not the dissent cast in those terms would have caused Stewart or any other justices to peel away from the majority, whether it would have made any difference to the outcome of that case, it would have made the most profound difference for the coherence of conservative jurisprudence. For it would have kept before us the clearest sense of what the case, in its deepest import, was truly about. And we could say at least this much: A style of judging that insists on focusing, in a demanding way, on whether the law, in its defining substance, is justified, is a style of judging that fits more aptly the true character of law, whether the judges get the answer in the case right or wrong. And when the judges focused their genius on that irreducible moral question, the judges would be doing all they need do, in their honest labor, to do a jurisprudence of Natural Law.