The Supreme Court Abuses Power Yet Again

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English: The United States Supreme Court, the ...

English: The United States Supreme Court, the highest court in the United States, in 2009. Top row (left to right): Associate Justice Samuel A. Alito, Associate Justice Ruth Bader Ginsburg, Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Bottom row (left to right): Associate Justice Anthony M. Kennedy, Associate Justice John Paul Stevens, Chief Justice John G. Roberts, Associate Justice Antonin G. Scalia, and Associate Justice Clarence Thomas. (Photo credit: Wikipedia)

Although I can understand why the Supreme Court would invalidate the Defense of Marriage Act (marriage has been traditionally a state, rather than a federal, matter), I do not understand its voiding of California’s Proposition 8 banning same-sex marriage. That act was passed by the majority of the people of the state of California–yet the majority of the Supreme Court (with Justice Kennedy getting up on the left side of bed this time) once again imposed its radical view of morality onto the American people.This ruling is a clear violation of state’s rights (if the term has any meaning left after being gutted by the federal courts). With the 14th Amendment imposing de facto slavery on the states to federal decrees, any other state that tries to ban same sex marriage will probably not be able to do so without its law being overturned by dictatorial decree. Any attempt to defy federal law via nullification will result in a stiff monetary–or worse–penalty by the overarching federal government onto the states. The United States is, in effect, a dictatorship in which the majority of people have been overwhelmed by elitist academics, Hollywood radicals, and their supporters in government. The federal government has the long arm of power enforced by tax policy, by federal law enforcement agencies, and by perhaps one of the greatest threats to American freedom, a large standing army.

The Supreme Court ruling affirmed a lower court ruling that described moral views on marriage as private matters not to be imposed on all people. To call marriage, a fundamental institution of all human societies, a private matter and not a matter of public policy is absurd. The radical individualism ensconced in the Enlightenment has finally come home to roost.

Traditionalists of all religions and ideologies who oppose this ruling may find themselves subject to persecution in the future. In academia, such persecution is already in place in some colleges, universities, and in the public school system. The radicals who, since 1969, have been pushing a homosexual lifestyle down the American people’s throats (pun intended), have won politically. They should focus on changing the culture, and if persecuted, pray and live virtuous lives, as the ancient Christians in the Roman Empire attempted to do. At least Christians know that evil–whether it be the evil of federal abuse of power or of radicals finishing off the destruction of traditional marriage that had already begun with easing divorce laws in the nineteenth century–will not finally triumph over good.

In a fallen world, even the best of intentions for good government go wrong over time. The United States has outspent its time as a republic, and with the virtue of people falling and the family failing, the end of the nation as those of my age has known it is only a matter of time (and a short time, I believe). May God strengthen those who have not bowed their knees to Baal.

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Supreme Court Ruling on Strip Searches a Threat to Civil Liberties

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The United States Supreme Court, the highest c...

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

The 5-4 ruling by the United States Supreme Court that strip searches, even for minor offenses, are legal is a disturbing blow to civil liberties. A man in New Jersey was stripped search after he was thought to have failed to pay a fine. It turned out that he had actually paid it, but that is irrelevant. What is relevant is that someone accused of a minor offense should not be humiliated and made to undress, having the most personal parts of the body probed. Apparently the Supreme Court, having made other provisions of the Constitution irrelevant due to their meddling, now believe that the Fourth Amendment no longer applies.

I do not understand how the justices who supported the majority opinion–Kennedy (who wrote the opinion), Chief Justice Roberts, Alito, Scalia, and Thomas–could be considered the Court’s “conservatives.” Surely it is not conservative to give police the power to abuse ordinary people who are charged (not convicted, thus they are legally innocent) with minor offenses such as a fine or traffic violation. One of the few good things the Warren Court did in the 1960s was to limit excessive police power. Otherwise, we run the danger of facing the same kind of atrocities visited on the American colonists by British law enforcement officials military personnel, or the atrocities that take place in any police state. I fear that the United States (as well as the United Kingdom) are on their way to becoming police states.

As we know from the Stanford Prison Experiment, people placed in positions of total power over someone’s treatment, especially when such treatment involves stripping the patient naked, easily move to abuse their power. The students in the Stanford experiment playing the “guards” would have the students playing the “prisoners” strip naked for “delousing.” It did not take long from that point for further abuses to occur. The kind of humiliation involved in a strip search should be reserved for the most hardened prisoners who might be hiding weapons or drugs on their person.

Americans are rapidly regressing to the point that they “do not deserve security nor freedom,” to use the statement attributed to Benjamin Franklin. It is unfortunate that the highest court in the land has sped the process of changing a democratic republic into a tyranny–even a “soft tyranny” is a bad thing and can lead to a full-fledged Soviet-style tyranny later. Police departments should use common sense in their strip search policies. If the states have any recourse given this ruling, they should pass state laws limiting police power regarding strip searches. A small risk of something bad happening is better than the greater risk of a police state.

Legal Positivism and the Attempt to Remake Reality

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Oliver Wendell Holmes, Jr., circa 1930. Edited...

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Why did the United States Supreme Court reverse over 1500 years of legal tradition and create an almost unlimited right to abortion? Later judicial rulings extended the right through the third trimester of pregnancy if a doctor signed a statement to the effect that a woman’s physical and/or mental health is endangered. Even Western Europeans outside of the U. K. have been shocked by the breadth of U. S. abortion laws.

Why did a California court reverse thousands of years of tradition and support same-sex marriage (later the state legislature made a court ruling unnecessary)? Why did federal judges, who ruled like dictators over broad swaths of the South in the 1960s and 70s, force children to get up at 4 a.m. to go to schools many miles from their neighborhood to achieve “racial balance,” a social engineering scheme that has been a dismal failure?

The arrogance of judges who wish to remake reality in their own image is due, to a large extent, to legal positivism. This holds that law does not gain its legitimacy in being consistent with the natural law, but that laws are simply products of legislative or judicial action. St. Thomas Aquinas‘ eternal law, natural law, and positive law is whittled down to positive law alone. Legal positivism is consistent with the eighteenth century Enlightenment, or Age of Reason, in which Western Europe, and later the United States, believed that man could remake society according to his own reason and will. With the help of science, a new social order, “a new order of the ages” (novus ordo seclorem) would be created, a heaven on earth, would be created as man remakes nature in his own image. As Francis Bacon said in the seventeenth century, man will “hold nature to the rack,” pulling out its secrets, and by dominating nature, create technologies for the comfort of man. Ideologically this idea is opposed to the notion of a set natural law man should follow, either in science or in ethics. But exploiting nature is parasitic on a set order of nature, and thus science cannot fall into total positivism without destroying science. Ethics and law, however, were other matters as the nineteenth century’s machines ground on like clockwork. Man could exploit ethics and law for his own purposes, for reshaping society, and there is no set order of nature that applies to ethics and law. This view was enshrined in the work of U. S. Supreme Court Justice Oliver Wendell Holmes, Jr. (another contribution of New England cultural rot to the ruin of the United States). Holmes was influential in pushing a legal positivist framework that quickly became the dominant framework among U. S. judges–to the point that some liberals were claiming that Judge Clarence Thomas‘ acceptance of natural law disqualified him from serving on the Supreme Court. I wonder what the liberals would say about the noted scholar and judge, John Noonan, who accepts natural law and sits on the Ninth Circuit Court of Appeals. We have seen more than once that the public welfare may call upon the best citizens for their lives.  Justice Holmes was consistent with his positivist framework and appealed to the abstraction of “social welfare” to justify his position. In Buck v. Bell, 274 US200, 1927, Justice Holmes, in his majority opinion concerning the case of a woman ordered to be sterilized for being “feeble minded,” says, “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” Holmes’ attempt to justify sterilization appeals to the public good–it is a utilitarian appeal–and utilitarianism only makes sense in a moral and legal world bereft of a concept of natural law. If law is just a positive act of legislatures and judges, then any kind of action by the state can be justified for “social welfare” or “for the public good.” Natural law offers a constraint on the tendency to remake society by getting rid of people that society finds uncomfortable.  But without the restraint of natural law, the state can justify any use of power against individuals or groups as long as it can be justified in terms of the “general welfare.” Note the terminology used by the U. S. Constitution, which is more of an Enlightenment Doctrine than some of its conservative advocates claim. Given the presuppositions of the Enlightenment that were not removed by the latent Christianity of the founding fathers of the United States (and the more active Christianity of others), the turn to legal positivism was a logical turn–but a turn that has led to a further breakdown of American society and the dismantling of the ethics and laws upon which Western Civilization has depended since the rise of Christianity.

Abortion

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The Supreme Court of the United States. Washin...

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As a precocious child, I watched the CBS Evening News with Walter Cronkite from the fourth grade onward. One winter evening when I was in the fifth grade Mr. Cronkite’s lead story was one I did not understand: “The U. S. Supreme Court today in a seven to two vote legalized abortion.” I ran and asked my mother what “abortion” was. She was hesitant to say, as if the term I had used were an obscenity. Finally she said, “It’s killing babies before they’re born.” My mouth dropped and I had a sinking feeling in my stomach. To this day that sinking feeling returns when I consider the great evil Justice Harry Blackmun and his court majority inflicted (via Roe v. Wade) on the American people that day, January 20, 1973.

In considering the morality of abortion, the key philosophical question is when does human personhood begin. Even supporters of abortion would say that the human being begins at conception—the issue is, at what stage does the human being become a human person? Is every human being a human person? Or does a human being become a human person at a particular stage of development. Parents with teenagers may believe that a human being does not become a human person until around age twenty, if even then. Seriously, though, philosophers Michael Tooley and Peter Singer have both argued that a human being does not become a human person until several years after birth. Singer believes that a baby should not be declared a human person until he is a week old; during that time, it is, Singer believes, morally permissible to kill the baby, for example, if it has an incurable disease that would cause it endless suffering. Tooley holds similar views. Bonnie Steinbock believes that sentience, the ability to feel pleasure or pain, is the point at which personhood begins to develop; she argues that this ability is not present until the third trimester. Before then, the human being present does not have the moral rights that a person does.

The separation of human personhood from human being finds its roots in the mind-body dualism of René Descartes (1596-1650). Descartes argued that the mind, defined as consciousness, is the self, and that the body, though closely connected to the mind in this life, is not essential to one’s identity. Although not as dualistic as Descartes, John Locke (1634-1704) explicitly argued that the human being is not the same thing as a human person. For Locke, the human being is the living human body; the human person is the individual consciousness. The continuation of the same person is guaranteed by the continuation of consciousness, and this is revealed by having a stream of memories stretching back through time. Thus, if my consciousness were transferred into Hugh Laurie’s body, the body would remain that of Hugh Laurie, but the personal identity would be that of Michael Potts.

An alternative position holds that the human being and human person cannot be separated; as long as the human being is alive, the human person remains. This view is associated with some followers of St. Thomas Aquinas (1225-74). Philosophers J. P. Moreland and Scott Rae are representatives of this position. They argue that what constitutes personal identity is the soul, defined as the “form of the body,” the informational pattern, encoded in DNA, that makes the person the kind of entity he is. This informational pattern is specific to a particular body, and as long as that body lives, the pattern is present. This is true even if the body does not have all its powers, for example, in a zygote , embryo, or on the other end of the scale, in an elderly person suffering from severe Alzheimer’s Disease. This view, I believe, makes better sense of the embodied nature of human existence than the radical Cartesian separation of mind and body. It recognizes that humans can BE persons without FUNCTIONING as persons, as when a person is in a dreamless sleep or under anesthesia. Thus, as soon as the new information pattern encoded in the genetic code after conception is present in the zygote, a human person is present. Thus, abortion kills a living human person and not just a living human being.

I am aware of arguments regarding twinning and the lack of implantation of around 40-50% of embryos. As far as twinning or other multiple births, the informational pattern for all the births are present in the case of identical twins, triplets, etc., and it would be wrong to destroy the zygote(s) at whatever stage of development it is in. As far as lack of implantation—in the past the child mortality rate was as high or higher than 50%, yet no one questioned the personhood of children.

Even if conception is not when human personhood begins, one could argue we cannot know for sure—would you risk shooting a person if you heard a rustle in the bushes and thought it was a deer? In a similar way, would you risk killing a human person by killing an embryo you are SURE is not a human person. Some confidence can kill.

Men often pressure women into abortions; I have known at least two cases among family and friends in which this occurred. It is ironic that most feminists support abortion when it empowers men to be sexually irresponsible—if the woman gets pregnant, a man can pressure her to kill the evidence.

Morality is not necessarily the same as legality, but if abortion is murder, it should be prohibited. Although abortion due to rape or incest is still murder, most Americans support it being legal—even with that exception, almost all abortions would be illegal. Now I do not think that a constitutional amendment is the answer; overturning Roe v. Wade and putting abortion back into the hands of the states is most consistent with federalism. Then it is up to those on both sides of the issue to make their best cases—and the representatives of the people would decide instead of dictatorial judges.

Although abortion is objectively a grave moral evil, one of the worst mistakes a person can make, the subjective guilt of the woman may be lessened by circumstances such as rape, incest, or threats from a boyfriend. But abortion doctors are, to use a Southern expression, “lower than a snake’s belly” in using medicine to kill instead of to heal. I hope and pray that people will wake up and work to stop the great evil of abortion in American society.