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Cleveland-Marshall College of Law

Research Paper 05-104 March 2006

Roe v. Wade and the Conflict between Legal, Political and Religious Truth

David Barnhizer
Professor of Law Working Paper

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Roe v. Wade and the Conflict between Legal, Political and Religious Truth
David Barnhizer

Contents Abstract Introduction I. Traditions of Truth II. Forms of Truth III. Political Truths IV. Religious and Revealed Truths V. Legal Truths VI. Interpreting the Forms of Truth in the Context of Roe v. Wade

Abstract This essay focuses on the nature of legal, political and religious truth, a trilogy of forms through which we express fundamental values that is more interconnected than we might think. The first part of the analysis examines traditional arguments that have been made about the nature of truth, its functions and sources, and how it is that humans perceive what is consensually true as well as that which different people come to believe is true. The final part of the essay develops the analysis in the context of the competing positions, arguments and conclusions applied in the Roe v. Wade decision regarding the conflicts in values and beliefs applicable to the power of a woman to elect to terminate a pregnancy versus the power of the community to inhibit that individual choice. The primary inquiry involves intellectual historian Crane Brintons concept of noncumulative knowledge. Noncumulative knowledge represents the kinds of knowledge achievable in areas of inquiry such as philosophy, morality, religion, politics and ethics. Like Arnold Toynbee, Brinton concluded that we can never prove the fundamental propositions in noncumulative areas by use of empirical methods or logic. 1 He contrasts the inherent uncertainty associated with noncumulative knowledge with the pursuit of knowledge in the cumulative domains of science. 2 The noncumulative
Crane Brinton, Ideas and Men: The Story of Western Thought (Prentice Hall, New York 1950). Brinton spoke of noncumulative knowledge as knowledge relating to wisdom, human nature, values and morality. He states: Men make certain propositions, entertain certain ideas, about men, about right and wrong action, about beautiful and ugly things. [O]ur contemporary men of letters are today writing about the very same things the Greek men of letters wrote about, in much the same way and with no clear and certain increase in knowledge. Id, at 13. 2 This observation and the accompanying claim to deconstructive method are neither compelling nor original to Derrida or other postmodern writers. Arnold Toynbee observed that the most important questions humans face are ones about which science has little or nothing to say. He concluded such matters can be debated endlessly but never proved

dimension symbolizes the relevant conditions of what constitutes truth in a discipline such as law. Law is a form of noncumulative knowledge in virtually all its contexts. While limited elements of such matters can be studied empirically, at their heart they are matters of socially constructed choice, not empirical proof. Non-cumulative forms of truth are particularly interesting and problematic in the context of constitutional interpretation involving controversial political and religious values. At the level of constitutional interpretation and argument these seemingly distinct dimensions are intertwined in ways that are not necessarily coherent or predictable. Certainly this was the case with Roe v. Wade, a decision by the U.S. Supreme Court that was considerably more political than legal. 3 Roe is a critical point at which worldviews collide and continue to collide. Roe is a transformative force that for three decades has generated powerful streams of social pressure. The pressure wave set in motion by Roe has impacted on our laws, political organizations, and social and religious passions. Roe v. Wade transcended the normal boundaries of what judges do. We see on all sides of the Roe equation, including the judicial, a virtually complete absence of truth-seeking, no honest discourse, and the use of propaganda, sloganeering and ideology rather than evidence, credible analytic method, or full consideration by anyone of the complete range of implications of the competing positions. Roe v. Wade is thus an exercise of raw political power ostensibly justified by legal analysis and backed by the power of law. Given the positions taken by the dissent the same conclusions about the political nature of the Roe v. Wade controversy would be valid if the Roe Court had reached the opposite conclusion. My intent in writing about this issue in the context of legal, political and religious and revealed truth is to attempt to analyze the conflict in its fuller dimensions, not to take a position on the issue itself. Introduction The failure of truth and the unwillingness to pursue truth as a critical precondition of resolving disputes, obtaining social goods and allocating social responsibilities has permeated our society. Truth is the victim of political and religious agendas and the desire to obtain outcomes. 4 We have devolved into a culture of lies and argumentation that may be an irreversible phenomenon. It is at this point where I may have to face the
empirically. Arnold J. Toynbee, A Study of History (Oxford University Press 1961) abridged edition at 100. Mans intellectual and technological achievements have been important to him, not in themselves, but only in so far as they have forced him to face, and grapple with, moral issues which otherwise he might have managed to go on shirking. Modern science has thus raised issues of profound importance, but it has not, and could not have, made any contribution toward solving them. The most important questions that man must answer are questions in which Science has nothing to say. As to the truths of science, Bernard Cohen reminds us that: new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it. I. Bernard Cohen, Revolution in Science (Belknap Press 1985).
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Roe v. Wade,

Boorstin observes in The Image, supra n. 63: The making of the illusions which flood our experience has become the business of America, some of its most honest and most necessary and respectable business. I am thinking not only of advertising and public relations and political rhetoric, but of all the activities which purport to inform and comfort and improve and educate and elevate us: the work of our best journalists, our most enterprising book publishers, our most energetic manufacturers and merchandisers, our most successful entertainers, our best guides to world travel, and our most influential leaders in foreign relations.

fact that my analysis might be embarrassingly nave because I believe deeply in truthseeking and honest discourse and still hope there is a place for balanced and honest discourse. As a scholar my duty is to provide as fair, complete and accurate an analysis as I can achieve. I have attempted to do that here in an obviously sensitive and controversial area. But at the same time I recognize the deep and antagonistic belief systems in play in the abortion conflict. Ultimately there may be no answer that can be achieved through reason and discourse because of the likelihood that a significant proportion of interests on either end of the conflict are not open to compromise due to their perceptions of the issues involved and the consequences that would emerge from concessions. 5 Even having admitted the probability of no meeting of the minds through discourse I remain committed to the values of truth and truth-seeking as vital to the health of a political community. While there may never be a possibility of compromise on the part of the ten percent or so of people at each end of the issue spectrum that leaves a substantial majority of people who may in good faith attempt to work out a viable solution even on an issue as fundamental and morally challenging as abortion. In our troubled democracy we must recommit to that effort lest we end up with a hopelessly splintered social order in which propaganda and duplicity reign supreme. Camus warned: [I]n a nation that is free and passionately attached to truth, man will begin again to have that feeling [of friendship and mutual understanding] for man, without which the world can never be but a vast solitude. 6 Sharing such beliefs in the importance of truth-seeking and honest discourse, this article begins its analysis by setting forth aspects of the traditional conceptions that have been used to describe the nature, source, functions and methods of truth and truth-seeking. It then discusses distinct forms of truth, including very briefly scientific or empirical truth, and then considers at greater length the interplay between political, legal, and religious forms of truth. 7 My purpose in writing about this is not to take a position on the morality of abortion but to offer as balanced an analysis as possible on the truths involved in this most intense controversy. Ultimately the analysis presented in this article ends with an attempt to clarify the nature of the inherent conflict and compromises between legal, political, and religious and

Jung observed in this connection that: Rational argument can be conducted with some prospect of success only so long as the emotionality of a given situation does not exceed a certain critical degree. If the affective temperature rises above this level, the possibility of reasons having any effect ceases and its place is taken by slogans and chimerical wish-fantasies. C.G. Jung, The Undiscovered Self 12, 13, Translated from the German by R.F.C. Hull (Mentor 1957). 6 Camus, Defense of Intelligence, supra, n. at 65, in Resistance, Rebellion, and Death. 7 The other side of truth is lies. See, Evelin Sullivan, The Concise Book of Lying (Farrar, Strause and Giroux, NY 2001), who quotes Winston Churchill for the observation that: In wartime, truth is so precious that she should always be attended by a bodyguard of lies. 229. Sullivan adds language that if accepted, helps explain the growth of propaganda and deception throughout our society, relating Krishnas maximBy telling a lie to save a life, one is not touched by sindefines deception in war in terms of self-defense. 254. Sullivan comments why some feel entitled to lie while being shocked if a stronger party uses the same strategy: In general, the threat of violence by someone stronger invites deception as a countermeasure. And when the weaker party in a conflict is perceived as unfairly at a disadvantage, we tend to see deception as a justifiable means to right the imbalance of power. Which is one reason the heroes in fairy tales and folk tales swo often resort to deception. Told from the point of view of the underdog, many of these tales glory in the triumph of those who are weak but tricky over those who are strong but gullible. 255. On this issue see Delgado and , infra, n. .

revealed truth by examining the majority opinion of Justice Blackmun and the dissenting opinions of Justices Rehnquist and White in the Roe v. Wade decision. 8 We have reached one of the boundary lines that separate human finitude and universal mysteries. 9 The choices we make at the event horizon imposed by a controversy such as Roe v. Wade are made in a context where basic values exert a powerful shaping force on who we are and how we view our social order and our community. 10 Although in some instances vital policy decisions must be achieved through judicial courage that claims the right to step outside ordinary judicial logic due to the existence of intractable long term injustice ignored at the social, legislative or executive levels, as an ordinary matter the truths of law are those of intermediate dispute resolution. In that context legal truth is ascertained and articulated in relation to concrete needs and policies. 11 The truths of law, as opposed to those of justice, are integral to resolving the dispute rather than revealing universal imperatives. The data are different, the risks and probabilities varied, and the functions distinct. This means that while there are truths on which we depend in determining our courses of action, the truths of law may bear little relationship to the conditions associated with true decision-making and interpretation in other dimensions. Roe v. Wade offers a point where academic intellectualizing comes up against the reality of life and death. 12 This is the point where the postmodernist questioning of the nature and plasticity of social, legal and political truth comes into play in ways that matter. 13 In
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Roe v. Wade, supra, n. . Colin McGinn discusses this in the context of philosophic thought, arguing: Philosophy is not the same as science. Science asks answerable questions and moves steadily forward, eliminating false theories, reducing the area of human ignorance, while philosophy seems mired in controversy, perpetually worrying at the same questions, not making the kind of progress characteristic of science. Colin McGinn, The Mysterious Flame: Conscious Minds in a Material World 208 (Perseus 1999). He adds: philosophy marks the limit of human theoretical intelligence. Philosophy is an attempt to overstep our cognitive bounds, a kind of magnificent failure. Id, at 209.

James Madison recognized the need to balance the competing interests of factious groups. We have the factions in the abortion controversy, but it is far from clear whether they can be balanced. In Federalist No. 10, Madison describes the idea of faction. By a faction I understand a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community. Federalist # 10 (November 22, 1787) The Federalist, Edited and introduced by Jacob E. Cooke (1961), at 56. Madison describes two cures for faction. One is to destroy the liberty that allows it to bloom, the other is to give to every citizen the same opinions, the same passions, and the same interests. Federalist # 10, id, at 58. He admits both solutions are impractical. Madison argues that the latent causes of faction are sown in the nature of man, according to the different circumstances of civil society. Federalist # 10, id. 11 See, e.g., Bacons that judicial decisions are inherently and appropriately limited to the immediate cause. This is because: It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree. Francis Bacon, The Maxims of the Law, Regula I. This advice obviously was not followed in Roe v. Wade. 12 For two significant criticisms of the Roe majoritys flawed logic and justification, see, Jack Balkin, What Roe v. Wade Should Have Said (NYU 2005); Cass Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (Basic Books 2005). Balkin recruited eleven legal scholars to write their views about how Roe should have been decided, and then he wrote an opinion himself. As to Sunstein I would suggest that extreme ideological positions of any political persuasion are inappropriate for the Supreme Court. 13 For sophisticated analyses on these issues, see, Peter H. Schuck, The Limits of Law: Essays on Democratic Governance, (Westview 2000); Noah Feldman, Divided By God: Americas Church-State Problem and What We Should Do About It, (Farrar, Straus and Giroux 2005); John Simmons, On the Edge of Anarchy: Locke, Consent, and the Limits of Society, (Princeton 1993); Robert Paul Wolff, The Poverty of Liberalism, (Beacon Press 1968); Robert A.


the judicial opinions contained in Roe itself, and the subsequent political struggle generated by the Courts decision, the positions taken on all sides can at best be described as clever and more accurately seen as disingenuous disputation. This is due to the fact that in the noncumulative realms truth is always a choice and always a human construct. 14 This does not mean, however, that at base the choices are without substance or merit. The core issue then becomes, if legal, political and religious and revealed truths are always a matter of choice at their base rather than the products of empirical or entirely rational and logical proof, then what are the criteria, processes, purposes, abuses and limits of those choices? Who chooses and how are those choices given authority, implemented in practice or changed? 15 How does choice work and change occur in a system grounded on the Rule of Law? 16 The choices we make at the event horizon generated by the social and political gravity produced by our most important and conflicting values provide not only the architecture but the internal moral and value content of our political system. 17 Regardless of their verifiability we still must and do take core beliefs and principles as true and attempt to incorporate them into the operational rules of our system and to act in accord with those rules. This is not a license where anything goes but a responsibility to have authentic reasons for our choices. The choices we make about core beliefs and deep principles provide the structure, foundations and moral energy of the community we choose to

Dahl, Dilemmas of Pluralist Democracy: Autonomy vs. Control, (Yale 1982); Robert A. Dahl, After The Revolution? Authority in a Good Society, (Yale 1970); Gabriel Marcel, Man Against Mass Society, Foreword by Donald MacKinnon, (Henry Regnery 1962); Michael Ruse, The Evolution-Creation Struggle, (Harvard 2005). 14 Walter Berns observes in criticizing Roe v. Wade: [W]hat were we taught by Roe v. Wade? That the Constitution is on the side of the big battalions or, at least, the most strident battalions. That an up-to-date judiciary is contemptible because it is nothing but a political body but, unlike a political body it pretends not to be. And we were also taught the necessity to form battalions of our own, which is being done on a massive scale. Walter Berns, Judicial Rhetoric, Rhetoric and American Statesmanship 55 (A. Thurow & J. Wallin ed. 1984). 15 Daniel Boorstin describes our quandary. [T]he mysteryof law in modern society [is] How retain any belief in the immanence of law, in its superiority to our individual, temporary needs, after we have adopted a whole-hearted modern belief in its instrumentality? How continue to believe that something about our law is changeless after we have discovered that it may be infinitely plastic? How believe that in some sense the basic laws of society are given us by God, after we have become convinced that we have given them to ourselves. Daniel Boorstin, The Decline of Radicalism 76 (1969). 16 William Peters, A More Perfect Union: The Making of the United States Constitution, (Crown 1987). Thomas Jefferson, writing to Madison from Paris after receiving a copy of the Constitution, listed first the things he liked about it. I will now add what I do not like, he wrote. First the omission of a bill of rights a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference. 202 Madison, who had been skeptical of the need for a bill of rights, was eventually persuaded, as he put it, that the political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. Jefferson, whose arguments had been most effective in changing Madisons mind, suggested an additional reason for a bill of rights: the legal check which it puts in the hands of the judiciary, to protect individual rights. Id, at 202. 17 Dennis H. Wrong, The Problem of Order: What Unites and Divides Society (Free Press 1994); Anne Hendershott, The Politics of Deviance (Encounter 2002); Kevin Craig Boileau, Genuine Reciprocity and Group Authenticity: Foucaults Developments or Sartres Social Ontology (U. Press of Am. 2000); John Rajchman, Michel Foucault: The Freedom of Philosophy (Columbia 1985); Karlis Raceveskis, Michel Foucault and the Subversion of Intellect (Cornell 1983).

create. We must have some credible and reasonably consensual criteria on which choices are grounded or we are adrift in a limbo where there is neither stability nor consistency. 18 Each choice of a primary truth leads to consequences. Each imposes responsibilities on us or relieves us of responsibility. But the choices are not only individual affairs. Taken collectively, choices about fundamental issues such as life and death impose consequences on the overall political community, shaping and defining its nature, quality and values. Roe offers an absolute example of the consequences of choice in areas as fundamental as those of the nature of personness, the surrender of innocence, the point at which life begins, the boundaries of individual choice and community integrity, and the intersection of law, politics, individual and social morality, and religious belief. 19 I. Traditions of Truth For the most interesting questions there are limited possibilities of our being able to transcend our limits and be able to know what is Real or true in any absolute sense.20 But our limited capacity does not render our ideas or beliefs about the nature of Reality without meaning or power. 21 Once we have agreed that truth in the dimensions of noncumulative knowledge is largely a constructed phenomenon yet not having run screaming in panic, we can feel more comfortable with the idea that truth is a multifaceted and complex term of art with varied meanings, applications and functions. 22
See, e.g., Antonin Scalia, book review of, Steven D. Smith, Laws Quandary (Harvard 2005), 2005 First Things 157 (November 2005) pp. 37-46. Justice Scalia makes an interesting observation that: Laws quandary, then, is that we believe like legal realists but act as though there were indeed some omnipresent, overarching law. 19 In simpler political systems custom and shared values play significant roles in avoiding and resolving disputes. As a political system becomes larger and more diverse strong shared values are diluted or are forced to compete with equally strong beliefs and respected customary knowledge of the kind required for an entire community to behave in a consistent manner disappears. This creates a vacuum of values with significant consequences for the political system. This increasingly leads to a dependence on law. Lawrence Friedman captured the role of law in a complex democracy. In his classic, American Law, Friedman states: In complex societies custom is too flabby to do all the workto run the machinery of order. Law carries a powerful stick: the threat of force. This is the fist inside its velvet glove Lawrence M. Friedman, American Law 257 (1984). 20 But see Gordon Woods reference to Jeffersons comment that: as Jefferson wrote in his Summary View, the great principles of right and wrong are legible to every reader: to pursue them requires not the aid of many counselors. Gordon S. Wood, The Creation of the American Republic 1776-1787, Ch. 5, The Ambiguity of American Law 291, 301. 21 One recurring theme is that of natural law, even if it is often left implicit. In fact, every decision concerning matters of the deepest human concern or the appropriate relation between the individual and the community is based on a tacit and usually inchoate system of natural law. See, Christopher Shea, Natural Law Theory Is at the Crux of a Nasty Intellectual Debate, The Chronicle of Higher Education, February 7, 1997, A14. Shea remarks: The natural-law theorists deny they want to write their religions into the Constitution. Their complaint, they say, is with a constitutional order that discounts moral reasons for making lawssuch as laws prohibiting abortion or doctor assisted suicideand considers personal liberty in all areas to be an absolute good. See also, David Barnhizer, Natural Law as Practical Methodology: A Finnisian Analysis of City of Richmond v. Croson, 38 Cleveland St. L. Rev. 15 (1990), and Chester James Antieau, The Higher Laws: Origins of Modern Constitutional Law (William S. Hein, Buffalo, 1994) where he focuses on Divine Law and Natural Law in relation to the U.S. Constitution. 22 In an Afterword to Hubert L. Dreyfus & Paul Rabinow, Michel Foucault: Beyond Structuralism and Hermeneutics (Afterword by Michel Foucault), (Harvester Press, UK 1982, 1986 reprint), Michel Foucault concludes: between a relationship of power and a strategy of struggle there is a reciprocal appeal, a perpetual linking and a perpetual reversal. At every moment the relationship of power may become a confrontation between two adversaries. Equally, the relationship between adversaries in society may, at every moment, give place to the putting into operation of mechanisms of power. The consequences of this instability is [sic] the ability to decipher the same events and the same transformations either from inside the history of struggle or from the standpoint of the power relationships. The interpretations which result will not consist of the same elements of meaning or the same links or the same types of

These include such matters as the different meanings of truth in discrete spheres of activity, relative to what sources of power, in accord with which functions, and for what purposes? There are also important distinctions to be made between the various fields of data or subject matter about which we are trying to discern what is true. 23 While I challenge some of the conclusions, logic and motives of postmodernists as they question the very nature of truth as a political construct determined by the interaction of power and the conditions being described, they are at least half right about legal, political, religious and other forms of revealed truth being in the eyes of the their Even if it were a unique insight that beholders rather than universal absolutes. 24 political, religious and legal truths are relativistic, ambiguous and products of the power and preferences of dominant orthodoxies, there is a quantum leap between the fact that we cannot prove something to be true in any absolute sense and the position that truth is relative, culture-bound to the specific moment or context and subject only to short-term interpretations and political manipulations. 25 The Ideals of Truth and Truth-Seeking The ideal of truth represents many things, and some are incompatible. Truth-seeking takes forms ranging from the empirical to mystical. But even while the nature and possibility of truth are under assault, it has important virtue as a symbol of a treasured value, just as the qualities reflected in the ideals of love and compassion represent values of lasting importance. The fact that human truth may not be absolute resolves nothing and asks the wrong question. Consider other areas in which there are no absolutes but where there is fundamental value. Although love, truth, freedom and compassion arent
intelligibility, although they refer to the same historical fabric and each of the two analyses must have reference to the other. In fact it is precisely the disparities between the two readings which make visible those fundamental phenomena of domination which are present in a large number of human societies. Dreyfuss & Rabinow, id, at 226. See also, Kevin Craig Boileau, Genuine Reciprocity and Group Authenticity: Foucaults Developments or Sartres Social Ontology (U. Press of Am. 2000); John Rajchman, Michel Foucault: The Freedom of Philosophy (Columbia 1985); Karlis Raceveskis, Michel Foucault and the Subversion of Intellect (Cornell 1983). 23 On this theme, see, Anthony Giddens, The Consequences of Modernity (Polity Press, Stanford University Press, 1990, paperback ed. 1991). Giddens claims: No knowledge under conditions of modernity is knowledge in the old sense, where to know is to be certain. This applies equally to the natural and the social sciences. Id, at 40. He later describes the effect of this perspective, arguing: In the industrialised societies above all, but to some extent in the world as a whole, we have entered a period of high modernity, cut loose from its moorings in the reassurance of tradition and in what was for a long while an anchored vantage-point (both for those on the inside and for others) the dominance of the West. Although its originators looked for certainties to replace preestablished dogmas, modernity effectively involves the institutionalisation of doubt. All knowledge claims, in conditions of modernity, are inherently circular, although circularity has a different connotation in the natural as compared to the social sciences. Id, at 176. 24 Well, what may seem like the truth to you, said the seventeen-year-old bus driver and part-time philosopher, may not, of course, seem like the truth to the other fella, you know. Philip Roth, The Great American Novel 19 (1973). 25 See, Anthony Gottlieb, The Dream of Reason: A History of Philosophy from the Greeks to the Renaissance (W.W. Norton, NY 2000). In speaking of the Sophists he relates: [The] fact of varying perceptions is precisely the problem that Democritus sought to answer when he dismissed subjective judgements of sweetness, bitterness, heat, cold and so on as mere convention and posited instead his objective atoms and void. Protagoras answered the problem on behalf of the Sophists with a different and apparently shocking idea: instead of dismissing subjectivity, he positively embraced it. What I perceive is true for me, and what you perceive is true for you. He held there is no universal truth about the everyday world of experience, but this does not mean that there is no truth about it at all. Quite the reverse: there is, if anything, an abundance of truth. For what each person perceives is the truth for him. That is what Protagoras meant when he famously said that Man is the measure of all things. Id, at 119. Gottleib explains: This sort of view is known as relativism, because it holds that truth is relative to each believer, or, more often nowadays, relative to each group or community of believers. It is one way of trying to bring knowledge back down to earth. Id.

empirical absolutes, this does not mean they arent vital and positive ideals. Such values may be more important for shaping the social order precisely because they arent precise. This may be the point of intersection between truth-seeking and the belief that a premise or principle is true, and the imperatives of social ordering and harmony. When we face the fact that the emperor is naked the consequences can include having to look at a really ugly man, and this may produce not only nausea but a loss of respect for the system itself. An important function of the ideal implicated in the pursuit of truth is that we seem to have a need for a source of authority greater than ourselves. Only in this way are we willing to subordinate our own desires and preferences to policies dictated by some higher authority. 26 Traditionally we have located authority in a belief in God, Reason or Science. Each has failed in important ways as an ultimate or indisputable grounding. Daniel Boorstin has concluded that the problem emerges from the fact that once we came to realize we were responsible for creating our laws the ability to believe in their power and moral force began to diminish. 27 We know far too well the extent of our imperfection and recognize that so even the best choices made by others like us are always flawed and inevitably self-interested. The problem is that choices still must be made. Although there is far more ambiguity concerning truth than we might desire, its elasticity is important in law and politics, as long as we dont confuse elasticity with meaninglessness. As will be discussed in the context of legal truth it is easier for lawyers to deal with the ideas of relative and ambiguous truths still being capable of possessing important social and moral functions even if they can never be proved in absolute terms. This is, after all, the essence of legal analysis and the legal process. 28 In trying to gain insight into the questions of the sources and the degree of authenticity relative to the forms of truth it is useful to consider the meaning others have given to the ideas of truth, certainty, knowledge, opinion and their connection to what humans do. There has been a diverse array of ideas about the nature of truth. 29 This includes the importance of detached observation, the principled commitment to its pursuit, and the
Locke described the role of the legal system as umpire. See, John Locke, Of Civil Government, Second Treatise, supra, n. at 67, 68. 27 Daniel Boorstin describes our problem. [T]he mysteryof law in modern society [is] How retain any belief in the immanence of law, in its superiority to our individual, temporary needs, after we have adopted a whole-hearted modern belief in its instrumentality? How continue to believe that something about our law is changeless after we have discovered that it may be infinitely plastic? How believe that in some sense the basic laws of society are given us by God, after we have become convinced that we have given them to ourselves. Daniel Boorstin, The Decline of Radicalism 76 (1969). 28 For the idea of the original and natural idea of knowledge see David Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 Pitts. L. Rev. 127 (1988). 29 Roger Scruton, Modern Philosophy: An Introduction and Survey (Penguin Press, NY 1994) reminds us. Not all human thinking is directed towards truth. In art and myth we allow ourselves the free use of fictions. Truth lurks within those fictions, and in the case of myth a kind of revelation may advance behind the veil of falsehood. But neither art nor myth is assessed on the grounds of its literal truth, and neither is discarded merely because it presents no valid arguments. In philosophy, however, truth is all-important, and determines the structure of the discipline. Validity, indeed, is normally defined in terms of truth, a valid argument being one in which the premises could not be true while the conclusion is false. Even those who believe that philosophical questions have no answers, assert this to be true; and the discovery that they have no answers is made only by the attempt to find a true one. Id, at 5.

dynamic of dialectical opposition between competing truths and the possibility of a productive synthesis. The observations about truth sketched below are offered by some of the most well known figures of Western thought. This includes Reinhold Niebuhr, Ralph Waldo Emerson, William James, Plato, Francis Bacon and others of deep intellectual or spiritual weight. But rather than illuminating the nature of truth, the diversity of views demonstrates how limited and imprecise is our understanding of the nature of truth, its sources, and the methods by which truth can be perceived if at all. In his Phenomenology Hegel argued against the Platonic assertion that the world consisted of discrete objects independent of mans consciousness. It has been said that: Truth, for Hegel, was not to be found in knowledge that was purified of any influence from mans own desires and feelings. Hegel considered that there could be no truth that was not intimately linked with the ongoing process of human beings as thinking subjects; truth was their truth. 30 We can easily detect in this interpretation the roots of postmodernist interpretations of the socially constructed and relative nature of truths. 31 Hegel was arguing against the traditions of philosophic Idealism and like Aristotle rejected the claim of the existence of an independent dimension of Platonic Forms in relation to which humans existed in a secondary or shadowy world located outside or only loosely connected with the real world possessed of an independent or true identity. 32 Central to the inquiry about truth and authenticity are the role and nature of the evidence we are able to perceive and accept concerning what is true. This requires that we be clear about the assumptions we make about human nature and human capacity. These assumptions include the extent of our intellectual capacity to discern phenomena in the first instance. They also involve our ability to process, structure and weigh different forms of evidence. This raises issues of the nature and form of evidence as well as the quality of humans as data receptors and interpreters. The answers to such matters are not simple because what passes for evidence varies in relation to the sphere of activity in which we are engaged. The nature of acceptable
30 IDEAS v. I, at 37. To Hegel, the supposed objectivity of the world of nature was in fact an alienation, for mans task was to discover, behind these appearances, his own essential life and finally to view everything as a facet of his own self-consciousness. 31 John F. Rundell, Origins of Modernity: The Origins of Modern Social Theory from Kant to Hegel to Marx (Polity Press,1987, Oxford) explains: Hegels critique exposes the historico-hermeneutical dimension that is irreducibly part of the formation of knowledge and is always prior to its various theoretical formulations. Epistemology unknowingly has a normative concept of the type of knowledge that is specifically identified as scientifically cogent and accepted a priori. As such it may hide from view the particular domain that is claimed to represent scientific thinking. In so doing it also closes other knowledges from consideration as scientific and sets the parameters for judging the scientific status of other cognitive domains. Hegel argues that a philosophy of knowledge (science) confronts in the first instance, only competing claims to knowledge and scientific truth. 32 See, Maxine Greene, Teacher as Stranger: Educational Philosophy for the Modern Age 72 (Wadsworth, Belmont CA 1976) where she describes the dichotomy that emerged from Greek Rationalism in which the rational part of our being is the higher aspect, and the biological and emotive is the animal we must tame through the power of Reason. Rollo May has called this philosophical split, the cancer of all psychology and psychiatry up to now. Rollo May, The Courage to Create, at 43 (1965).

evidence in domains involving hard science will not be the same as in the softer realms of social or political science. The evidence in the soft sciences will differ from that considered acceptable or available in areas of philosophic or legal inquiry. This becomes even more problematic when we are considering such things as religious and ideological truths. In the Seventeenth century William Chillingworth concluded that: The reasonable solution to any problem is to examine such evidence as is available and to proportion assent to it. It became a cardinal principle to proportion assent to evidence: to each kind of evidence there corresponds a kind or degree of assent, and as the evidence is greater or less so should be ones certainty. 33 But there were not only different kinds of evidence. As I am arguing here, truth itself assumes distinct forms depending on function and relational category. Chillingworth, for example, argued that there were three kinds of certainty a person can have of the truth of a statement. He concluded these are: (1) absolutely infallible certainty, (2) conditionally infallible certainty, and (3) moral certainty. 34 He considered absolute certainty as beyond human reach. Of course, even if Chillingworth is correct about our limited capacity, it has never prevented people from claiming they know something to be absolutely true regardless of proof or evidence. This is at the core of many social disputes and it is insurmountable. It is also at the center of the conflict reflected in Roe. Moral certainty is another kind of truth. To Chillingworth it represents the degree of certainty about what is believed but not known. To be legitimate that belief needs to be based on a substantial degree of evidence and reason. He argued that moral certainty is the certainty a sane, reasonable, and thoughtful person has after considering all available evidence as fully and impartially as is possible and giving his assent to that side on which the evidence seems strongest. 35 I suggest that this form of knowledge and belief may well be the best that scholars are likely to achieve in the noncumulative areas of knowledge such as law. John Wilkins concluded something similar to Chillingworth in his assertion that moral certainty is the assurance one has of anything for which there is no ground for a reasonable doubt. 36 But this does not provide a final answer. The kinds of evidence that can be produced in relation to reasonable doubt in different contexts and systems involves dissimilar kinds of knowledge and will be of a different character. 37 Even at the point of reasonable doubt regarding evidence, knowledge and reason, the analysis does not deal with the nature of that evidence or the methods by which it is derived and the criteria used to determine validity. Such considerations are precisely the kinds of factors about which we disagree.

33 34

IDEAS, v. I at 307. IDEAS, v. I at 307. 35 IDEAS, v. I at 307. 36 IDEAS, v. I at 309. 37 IDEAS, v. I at 310.


Blasius argued that to know something: is to have arguments based on evidence; to believe something, knowledge is not necessary 38 He finishes that sentence by suggesting something that lies at the heart of many disagreements when he concludes that: in the case of faith [knowledge even] must be set aside. 39 Hamann suggested, in the classic distinction between inductive and deductive method, that all truth is particular, never general 40 But this can mean several important things. One is the idea of discrete bits of particulars in which data are accumulated as researchers study it methodically and with replicable techniques. At its most strict this is obviously the strategy of science in which something being examined must be approached in ways that ensure the things being studied are each time the same thing. This also requires that the bits of data studied not be tainted by random variables, and that the data not include matters that cannot effectively be examined by the method being used. Thus we see the need to exclude or control vital human variables that would render the data being assessed less probable in terms of predictive reliability. Otherwise the research strands would contain different variables rendering them non-comparable, or variables that did not yield to the methodology being used. Either flaw means the phenomena could not be measured by an appropriate ruler. Historical Assertions about the Nature of Truth Regardless of their eloquence every one of the views set forth below is no more than an opinion. Most assert the relativistic or unknowable nature of truth. Several place it in God. Others suggest its dynamic nature. Nearly all emphasize that humans ability to know what is true is imperfect. But if that ability to know what is true is always imperfect, in what ways is it possible to come close to truth? We have to make choices based on the ability to distinguish between competing propositions. What criteria do we use for the distinctions? These opinions offer the various positions that have been taken regarding the substance and methods by which we attain truth and even the possibility of knowing what is true, including the assertion that truth can only be known by or found in God; or that truth is the result of dialectical oppositions. Or that truth may lie in a theory or set of assumptions about human nature. The observations stand for the idea that truth is an ideal and a beacon. They argue that the ideal for humans is not in the ultimate knowability of truth, but that the effort to attain truth is a demonstration of individual integrity. Some would respond that this simply represents a convenient fallback rationalization by which a desperate human species confronted with its limitations seeks to hold onto the delusion of its innate godliness. They may well be correct but this does not resolve the issue of the need for grounding in human belief systems. Beyond that we see claims that
38 39 40

IDEAS, v. II at 35.

IDEAS, v. II, id.

IDEAS, v. II at 103. Hamann is first in the line of thinkers who accuse rationalism and scientism of using analysis to distort reality 104


truth is either transient or fixed. We see that the truth-seeker must remain distant and detached to avoid undue corruption of the process; that truth is unattainable, or that truth must be verifiable and measurable in order to be true. The descriptions obviously fail to supply verifiable answers but reflect the depth of commitment that has been felt by many concerning the attempt to know truth. 41
To be absolutely sure of the truth of matters concerning which there are many opinions is an attribute of God not given to man. 42 [impossibility plus belief in divinity] It is neither possible for man to know the truth fully nor to avoid the error of pretending that he does. 43 [impossibility plus the inevitability of hubris] Truth is essentially a relation between two things, an idea, on the one hand, and a reality outside of the idea, on the other. 44 [the subject/object distinction] The high-minded man must care more for the truth than for what people think. 45 [firm commitment to the higher value of truth versus approval] He in whom love of truth predominates will keep himself aloof from all moorings, and afloat. 46 [truth requires objectivity and avoidance of worldly distraction and corruption] It is the customary fate of new truths to begin as heresies and to end as superstitions. 47 [dynamic truth, courage and behavior of humans in control of systems] Truth is a property of certain of our ideas. It means their agreement, as falsity means their disagreement with reality. True ideas are those we can assimilate, validate, corroborate and verify. 48 [science and scientific method, assumption of provable reality, rejection of truth in non-empirical realms] Truth, which only doth judge itself, teacheth, that the inquiry of Truth, which is the lovemaking, or wooing of it; the knowledge of Truth, which is the presence of it; and the belief of Truth, which is the enjoyment of it; is the sovereign good of human nature. 49 [truth and the search as vital to humans] Not the truth which a man possesses or thinks he possesses, but the steadfast task to which he has applied himself of striving after truth, is the true worth of man. 50 [the quest for truth is the most important aspect of what we do in seeking to understand] Although it may not be always advisable to say all that is true, yet it is never allowable to speak against the truth. 51 [prudence is one thing, lying is another] Truth generally lies in the coordination of antagonistic opinions. 52 [thesis/antithesis/synthesis]

The Death of God and the Loss of Certainty and Confidence These assertions about the nature and sources of truth are all grounded on deep and unprovable assumptions. They operate on the same order as the belief that the human

For an analysis of these issues see, Bernard Williams, Truth and Truthfulness: An Essay in Genealogy (Princeton, 2000). See also, Kenneth Baker, Williams examines the merits of truth, in the on-line Book Review section of the San Francisco Chronicle, Sunday, September 22, 2002, 42 Plato, Laws (1003) 43 Reinhold Niebuhr, Human Destiny, 1943 (1007) 44 William James, The Meaning of Truth, 1907 (1008) 45 Aristotle, Nichomachean Ethics (1003) 46 Ralph Waldo Emerson, Intellect, Essays, First Series, 1841 (1005) 47 Thomas Henry Huxley, The Coming of Age of The Origin of Species, 1893 (1006) 48 William James, Pragmatism, 1907 (1008) 49 Francis Bacon, Essays, 1597 (1004) 50 G.E. Lessing, Duplik in Werke, XIII, 23, 1778 (1004,1005) 51 St. Francis de Sales, Introduction to the Devout Life 1609 (1004) 52 Herbert Spencer, Autobiography, 1904 (704).


animal differs from supposedly baser animals as a consequence of our higher power of reason and/or Gods grant of the power of Reason to enable us to perceive Him. 53 But what happens if we abandon the belief in truth and our ability to connect with it? One possible consequence is that we must then abandon the belief in our own superiority and our latent belief that we are connected with the divine. 54 The dilemma is that while it may be entirely rational to let go of God this poses profound consequences for human societies. This is because ideals and other deep beliefs have important social functions even if they are not attainable and even if they are not true or cannot be proved true or false. The ideal focuses us on something outside ourselves that may ultimately lead to an improvement of the species, or at least an inhibition on some of our worst behavior. While we may have to concede that we are biological beings, we are not prepared to be only animals. 55 With the death of God in the Westwhether we are speaking of a divine deity or a belief in the supremacy of authoritative Reason or the potential of science to answer all questions of consequence--we have been buffeted from one source of authority to another. Our problem and our opportunity is that we have come down from the heady rush of the belief in human godliness, power and perfectibility that served as the core spirit of the French Enlightenment and even the more pragmatic perspectives of the Scottish Enlightenment. One consequence of our fall from the grace of a belief in the power of Reason to dissipate the mists of all ignorance and solve all problems once we understood their dimensions is that we have discovered the fact of our blindness and inherent limits. 56 A result is that we are searching, afraid, and impotent in the face of social, political and natural forces beyond our control and outside our understanding. How have we responded to the discovery of our limits? Ancient humans invented gods to account for what they could not understand and we are not as dissimilar from our forebears as we might think or wish. We have adopted a variety of palliatives that empower us against the unknown and help us to keep the dark at bay. These beliefs have
Maxine Greene tells us how Platos view of the human being was that: He existed in two worlds: one part of him was caught in the flow of time and imperfection; the other belonged to eternity. His very nature compelled him to want to transcend mere finitude and wish for immortalityor a return to his souls true home. . Hence, education could only be a process of helping people actualize their latent power to discern the fixities in the fluid world they inhabited and, by that means, to attain recognition of the Real. No attention was devoted to the practical arts or the manipulative arts; no attention was given to understanding or valuing specific, concrete phenomena or to controlling the direction of earthly change. The fully realized person had higher, better things to do. And that person still remains in the background for teachers today. Teacher as Stranger, supra, n. , at 72. 54 Ian P. McGreal, ed., Great Thinkers of the Western World (HarperCollins, NY 1992). Saint Augustine (d. 430), who sought to integrate Platonic philosophy with the biblical heritage, taught that the Forms are the exemplars of all created things and in the mind of God before they exist in matter. God gave all created things an identity that stems from the universal form contained in the particular; hence, all horses share a common characteristic of horseness that distinguishes them from trees, which all share the universal, treeness. To know anything, the human mind needs to grasp the spiritual form in the matter, the universal in the particular, the one in the many. 124 55 Brinton, Ideas and Men, supra, n. 1 at 336, argues that: Rationalism as it grew up in the sixteenth and seventeenth centuries is in fact a complete metaphysical system; more than that, it served for a minority, and continues to serve, as a substitute for religion. 56 Viktor Frankl argues: man has suffered another loss in his recent development: the traditions that had buttressed his behavior are now rapidly diminishing. No instinct tells him what he has to do, and no tradition tells him what he ought to do; soon he will not know what he wants to do. More and more he will be governed by what others want him to do, thus increasingly falling prey to conformism. Viktor Frankl, Mans Search for Meaning 168 (1959).


a range of characters and consequences. Little wonder that humans faced with analytical uncertainty, power-based social constructs and thin evidentiary foundations for even the most important social issues have reverted to substitute systems of belief. These systems compensate for our inability to know or agree on what is true or, in a socially constructed reality, what it is in our collective community interest to choose to treat as true.57 The most common compensatory mechanisms are faith in God, political party, or identity group. Such surrogate belief systems and identity group allegiances offer the structure and grounding that Reason and empirical evidence fail to provide. They provide us with a sense of something more profound than our limited selves in which to believe. Nor is there anything necessarily wrong with such choices. The belief system represented by a faith in God is complicated by the many faces we have applied to divinity and to the nature and strength of the dictates we derive from the particular religious variant we adopt. We not only choose, or are chosen by, a particular religious sect in which we may have been brought up, but sometimes adopt other idols and surrogates as templates by which we seek to force a troubling reality into forms with which we feel more secure. We are substituting dogma, cant and ideology for wisdom and honest discourse. These surrogates fill our existential void. Otherwise we face a dilemma in which nothing is better than anything else, and social cohesion is lost in anarchic chaos. 58 Because we cannot attain an ultimate source of authority through human Reason or empirical Science we commit to secular or religious belief systems of varying intensities ranging from the mild to the fanatical, or conversely argue for the legitimacy of virtually all beliefs and behaviors. We do this not because we know them to be benign or socially or individually healthy, but because without deep principles on which to ground ourselves we lack the ability to justify one position or choice as better than another. As to how such assumptions work, consider the fact that many people in Western nations agree there is a powerful moral imperative to help the less fortunate. But what leads to this conclusion as a general moral truth? Of course such an obligation can be found in the tenets of the Judeo-Christian tradition, but for many it has become de rigeur to scoff at anyone who professes serious religious beliefs of a kind that require hard choices to be made concerning behavior and what constitutes good values. In Europe, religious beliefs have become something to be scorned. 59 In England church attendance has

Daniel J. Boorstin, The Decline of Radicalism: Reflections on America Today (Random House, NY 1969, 1963). [T]he two contrary beliefs which we still want to hold are (a) that our laws are immanent (or the mere symptom of an in-dwelling necessity) and (b) that our laws are instrumental (tools we shape to our chosen ends) . But the rise of self-conscious law-making does not abolish the need for belief in immanence, it merely transforms that belief. It makes the need for that belief more acute. Now men are burdened not only because they make their particular laws, but because they realize they have the power to make their very concept of law. Id, at 75. 58 Sandel describes the problem as one in which the liberal and conservative debate does not speak to the two concerns at the heart of our discontent. One [concern] is the fear that, individually and collectively, we are losing control of the forces that govern our lives. The other is the sense that, from family to neighborhood to nation, the moral fabric of community is unraveling around us. These two fears define the anxiety of the age. Michael J. Sandel, Americas Search for a New Public Philosophy, The Atlantic Monthly 57, 58 (March 1996). 59 See, e.g., James Gannon, Is God Dead in Europe? USAToday, January 15, 2006. Visited 2/27/06.



declined to a point where less than ten percent of the population attends church. 60 Western Europeans look askance at the U.S. when they read that a clear majority of Americans profess a belief in God. The odd thing is that this decline in faith in Europe has occurred even while there is a strong social and moral commitment to assisting those who are less fortunate. How is it that people and societies that consider a belief in God to be silly or delusional nonetheless feel a strong moral duty to help others and consider it immoral if this altruistic commitment is not generally pursued as a social and personal mission? What is the source of this shared moral value system if they do not use religion to base their arguments or moral code? If European societies do not use religion to ground their moral values then from where is derived the purported human duty to help others as an act of goodness? I question whether the weak Liberal tradition is capable of generating the depth of moral commitment represented in the Wests imperative to help the less fortunate. 61 Without a belief in some strong grounding source for our best values and a connection with something better than ourselves, we are no more than biological beings trapped within our skins and subject to instinctive drives that can and often do lead to terrible behavior. Of course, some have gone as far as to speculate that there is a moral or god gene in our biological makeup. They argue it is this naturally wired dynamic that represses the worst of our natures and offers a moral force for goodness. 62 The greater likelihood is that our moral code is produced by the beliefs of the Judeo-Christian tradition. Even if we deny the formal system itself it has proved impossible to extricate ourselves from its moral dictates. As a political device organization along particular religious faith serves important social and individual functions. Independent of this function, however, is the fact that while a particular faith may even be true it can never be proved as true or untrue. It is a matter of choice and quite often simply a matter of acceptance of beliefs inculcated in us at the deepest levels in early formative years. This is more beneficial than problematic in a democratic system as long as the various approaches are allowed to proliferate and the
60 Matt Barnwell and Amy Iggulden, England church attendance Religious belief falling faster than church attendance News.telegraph, August 17, 2005. Visited 2/27/06. Organised religion is in near-terminal decline in Britain because parents have only a 50-50 chance of passing on belief to their offspring, a study claimed yesterday. 61 Leslie Dewart, The Future of Belief: Theism in a World Come of Age (Herder and Herder, N.Y. 1966) explains: If a mans psychic needsprincipally the basic need to preserve a certain degree of psychological integrationare threatened by events or entities in reality, an illusionary wish-fulfillment may save him from psychological disintegration, at least until that time when his psychic development should permit him to cope with reality in a more adequate way. Like a fever, or like pain, illusions can be healthy, that is, they can contribute to mans welfare. It is only in relation to a better state of affairs that they can be said to be symptoms of disease. 21. [speaking to Freuds idea of the religious illusion]. See also, John S. Mill, The Utility of Religion 62 See, e.g., Dean H. Hamer, The God Gene: How Faith is Hardwired into Our Genes (Doubleday, NY 2004). Hamers hypothesis is questioned by reviewers and although the question is important there are no clear answers. One extremely skeptical criticism is found at, February 13, 2005, visited February 22, 2005. See also, Jeffrey Kluger, Is God in Our Genes? Time Magazine Archives,,10987,1101041025-725072,00.html, visited Feb. 22, 2005.


sects are sufficiently numerous that they are diffuse and none is able to dominate others. This diffusion of all forms of power, including religion, is the great wisdom of the deliberate choice made to separate church and state in the American constitutional system of government. That system allows the community as well as the individual to realize the positive benefits of religious belief without allowing an organized group to take over political power and impose its will on others who possess differing beliefs, values and priorities. One consequence of the disbelief required by the operation of positive law within a Rule of Law system where we are not permitted to believe that authority resides in an ideal source higher and more pure than ourselves, is that there is no clear moral or qualitative justification for privileging one choice over another. At least, even if there are justifications they are not so obvious or incontrovertible that they can gain consensus. We revisit this increasingly in consideration of such an issue as gay marriage where the formal logic we use to manipulate language provides us with numerous arguments why equal means equal. This formalism inevitably leads to a situation in which cultural traditions and moral and religious beliefs are subordinated or challenged as a form of bigotry or intolerance defined as a preference for tradition. But even here the use of the word privileging demonstrates the role of language in what we do. Privileging is such a value-laden word that it strongly suggests an imbalance in the assignment of justification and merit that is neither earned nor deserved. To privilege something is to grant it a greater power or status than something else. To do this requires evidence or justification. The problem is that we have diminished trust in the proofs that are offered and great ability to denigrate that which we do not agree or that advantages others over us. II. Forms of Truth Diverse forms of truth are described in this part. 63 Their identification depends on such considerations as the extent to which their criteria are empirically-based, the nature of the methods used to ascertain the truth, the degree to which opinion and choice are involved in the search for the particular form of truth, and the nature and intensity of adherents beliefs in the appropriate source of the claimed truth. Also considered is the source of authority of the truth, or from where is its legitimacy derived. The search for truth has meaning. One problem, however, is that we use the term so loosely that we are surrounded by a mythology of truth encompassing a variety of platitudes with numerous indeterminate meanings. This was shown in the previous section where we encountered an array of different conclusions about the source, nature, function and possibility of truth. Even with its enormous diversity and ambiguity, or perhaps because of these variables, truth is a word of great power used to justify political, aesthetic and moral concepts. Great symbolic force emanates from our incantations of

See, Scruton, Modern Philosophy: An Introduction and Survey, supra, n. , Ch. 9: Truth at 97, et seq. Scruton describes different theories of truth, including Reality, Correspondence, Coherence, Pragmatism, Redundancy and Minimalist theories. He also considers the role of probability and evidence.


truth. Once something is wrapped in the mantle of truth it is extremely difficult to dislodge or oppose even though we know that in most instances the assertion represents only a choice that has been made by people who benefit from that particular representation. The commitment to the values of truth and truth-seekingdefined as integrity, honesty and clarity--are matters of consequence. There is a difference between saying that something can be true in an absolute sense but that we do not yet (or will ever) have the ability to determine its precise truth, and the proposition that there is no truth other than what we say. This has been explained as the distinction between truths that are out there and human constructs that we choose to refer to or accept as true.64 We could, for example, decide to assert as true the proposition that if we place a loaded gun against our temple and pull the trigger that the projectile going 1,000 feet per second will not harm us. Or we can act as if we were the Danish King Canute and exercise our power to define truth by commanding the ocean tides not to wash over our feet. Certain facts of our physical world are true, at least to the point that only fools or madmen challenge them. Being a devotee of science fiction and imaginative fantasy and the genres fascinating thoughts about the possibility of alternate universes and realities, I can easily construct a line of thinking that questions the nature of our physical reality and its rules as being variable constructs that need not apply universally to all dimensions. In my imagination, alternate universes, time travel, extraordinary mental powers and the like can exist, but I dont really believe in these fictitious inventions. The rather stark and unforgiving truth is that in this version of reality the bullet will blow our brains out and the incoming tide will not obey our commands. I take this as a statement that within the existence we inhabit there are forms of undeniable truths that we oppose at our peril. Charles Van Doren has suggested that one of the most basic consequences said to flow from the invention of science is the idea grew that there was only one truth, not many truths, about anything: men might disagree, but if they did, then some must be right and others wrong. 65 He argues that: other consequences include the idea that: what was true now had always been true and always would be true: truth was not subject to modification by the mere passage of time or the change of opinions. 66 In language that heralds the ideals of the discovery of new knowledge and the refinement of existing cumulative knowledge, Van Doren concludes: This did not mean that all the truth about anything was already known. The understanding of truth could change and improve. But truth itself stood outside of mans thinking, like a beacon guiding him home. 67 Physics and other hard disciplines where empirical testing yields predictive results reasonably close to certainty obviously occupy one dimension. But compare the
Bernard Cohen brings this to the fore in his observation that Max Planck is often quoted to the effect that new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it. I. Bernard Cohen, Revolution in Science 467, 468 (1985). 65 Van Doren, A History of Knowledge, supra n. 34 at 58. 66 Van Doren, A History of Knowledge, id. 67 Van Doren, A History of Knowledge, id.


controlled phenomena of empirical testing and validation with the subject matter of law. In law we find the ultimate noncumulative discipline. This is because of laws intimate connection with power as well as its multifaceted nature. 68 In a Rule of Law system law is the central means of regulating and influencing. Law is part of a very different universe of value, proof and choice. So are the truths on which we rely for political action. What is true for a traditional scholar, scientist or mathematician will therefore be of a different character than the truth of a priest, disciple, or person trying to make a personal decision. When we speak of truth in the noncumulative context involving knowledge in law, philosophy, religion, politics, ethics and morality we therefore mean something of a different character than when we speak of truth in the scientific or cumulative realm. 69 So, while it is true that truth is an important ideal, truth is also a device about which we have little actual understanding. It is therefore important to distinguish between truth as an ideal and truth as a term of art. The same applies to understanding truth as a tool of argumentation and ideology. In these domains truth has quite variable and even incompatible meanings, contexts and functions. This means that in the noncumulative dimension truth is a slippery set of concepts with considerably less certainty than anticipated or hoped. As an ideal this uncertainty does not render the belief in the integrity and necessity of the search for truth irrelevant. Just the opposite is true because we need grounding in an otherwise amorphous and shifting field. How we achieve that grounding with any degree of integrity is quite a different matter because power does seek to dictate the meaning of what is true according to terms that benefits its own interests. Even though are reasons to challenge the claimed objectivity of science, the harder questions occur when we move away from the physical or out there universe into the realm where humans exert some measure of control over what is true relative to our selves and our societies.
Verifiable [almost] Truths 1. 2. Scientific standards--extremely high, repeated empirical testing and falsifiable/verifiable hypotheses that can be replicated. Mathematical proofs.

Legal Dispute Truths 3. 4. 5. Proof beyond a reasonable doubt--U.S. criminal trial standards. Proof by clear and convincing evidence--equity standards. Preponderance of the evidence or more likely than not--general civil trial standards.

See, e.g., David Barnhizer, Prophets, Priests and Power Blockers: Three Fundamental Roles of Judges and Legal Scholars in America, 50 Pitts. L. Rev. 127 (1988). 69 Philosophy is an attempt to overstep our cognitive bounds, a kind of magnificent failure. McGinn, Mysterious Flame, supra, n. 3, at 209.



Political Truths 6. 7. Political decision making standards--which require some reasonable body of evidence or proof before deciding, but do not even require the more likely than not assessment. Our own preventive, precautionary standards that we urge in regard to environmental or other socio-political concerns. These involve decision-making under uncertainty and often require the political decision-maker to select a significant margin of safety. This of course depends on whether the decision-maker feels that non-action increases the probability that the existing situation will be maintained. The precautionary standard only works if you think there is significantly greater security in non-action than action, even if action also carries risks.

Humans-in-Community Truth 8. Negotiated or stipulated truths. In this context various interests negotiate compromises about the terms of operation about particular matters that will then be taken as general truths. These include, for example, self-evident truths necessary for the integrity or foundation of a political system such as the phrase We hold these truths to be self-evident. There are, in fact, very few selfevident truths but ideology requires the assertion and belief to allow a sufficient sense of authoritativeness or authenticity. 9. Collective truths. Here are represented the truths of a political, religious or social collective. They include a collectives agreed on doctrine or dogma. They also will tend to be increasingly open-textured as the group enlarges and becomes more diverse and amorphous. 10. Roshomonic truths. The Japanese cinema classic, Roshomon, represents the attempt to understand the reality of a condition based on examining it from a variety of subjective human descriptions taking into account the biases or points of view of the observer and interpreter. The idea is that by looking at the event through the subjective perspectives of each observer it is possible to obtain a more accurate or at least a more balanced understanding of the event when the perceivers particular subjective motivation is taken into account. This might in fact be seen as consistent with the postmodern view of truth as subjective, relative and so forth because it seeks to account for that subjectivity and personal perspective. But again, this understanding has several possible interpretations and outcomes. One is that there are non-relative truths, even in the human dimension, and our task is to develop the keenness of methods and knowledge that allows us to see through the mists and biases of individual and group perspective. The second insight is that even if human truths are largely constructed and relative that does not mean that some are not better than others. Value, function, social goals, beliefs and history are thus key elements of understanding which truths work best in a society, and which are undesirable or inappropriately discriminatory. Religious and Revealed Truth 11. Oracular and visionary truths. An example is the writings of Nostradamus that many believe to be predictions of the future. 12. Prophetic and revealed or received religious truths. Truths given by God, such as in signs, scripture, answers to prayers, prophetic revelation, etc.

Issues of method, capability, source and function are central concerns in examining the forms of truth. The problem is that as we move from evaluative methods designed with a commitment to a propositions actual truth-value toward believed truth, we move through radically different territories with divergent methods, sources, and functions. Several of the forms of truth listed above demonstrate this point. These include what might be called methodologies of generating legal and political truths. These are quite different from the scientific and mathematical processes through which we attempt to ascertain truth relevant to those constructs. Although the differing forms all speak to the idea of truth, they are very different in terms of the ends served and in what is meant by the term truth. We need to ask, therefore, how 19

is the particular truth used, and what effects result. To the extent all truths in noncumulative disciplines are ultimately matters of choice because they are constructed truths or because we cannot gain any consensus due to humans inability to prove their propositions true to others satisfaction, we must ask, whose truth is it? This includes issues of who made the choices and for what reasons? It is fair to ask to whose advantage do the choices work? Additional concerns are who benefits and what kinds of truths are attained by the distinct systems? All these come into play in the Roe v. Wade situation. There is an important distinction between systems that consider disciplined and rigorous study of phenomena based on factual evidence and replicable methods as the ideal method for truth determination, and systems in which truths are received rather than discovered. 70 A critical distinction is that while the search for truth in science and through other traditional forms of empirical research and analysis, including to a lesser extent the soft or noncumulative disciplines of the humanities, may be able to achieve only a more or less contestable approximation of whatever is being studied, the scholars truth-seeking commitment is to come as close as possible to the point of highest truthvalue attainable through the most honest and complete examination of evidence applied consistently with agreed on methods of inquiry and explication. This means that while we may be flawed in the result and even in the execution, the shared intent is to discover truth through rigorous and rigorous methodology. This includes the ability to demonstrate what is not true requiring that a hypothesis be framed in a way and about a condition that is falsifiable. When we do something other than this we are engaged in a distinct undertaking with different purposes and strategies. This does not render that different activity illegitimate but we are responsible for understanding that its claims and products are of a distinct character. The standards for ascertaining truth vary in large part as a function of the role they play. Some of the methods, for example, are intended to provide means of coming as near to the absolute validity of a proposition as can be done through methods available to humans. Here we include the methods of science and mathematics even though there are admitted limitations even with our best methods of truth-ascertainment. There may be identifiable flawsthe conclusions may be wrongbut the intent of the user is to achieve the most clear and unbiased understanding of reality as is possible. We might place the distinction on the difference between discovering truth as opposed to receiving truth, but that distinction can easily be overstated. Our best modern methods of truthdiscernment possess their own biases that weaken their integrityincluding biases in their own favor and against other methods. 71

The history of science is a tale of multifarious shiftings of allegiance from theory to theory. Newtonian mechanics had its hour of flourishing with virtual universal allegiance. Then following a dramatic and brief period of turbulence, relativistic mechanics came to the fore and is espoused with the same universal allegiance and firm commitment on the part of the community. W.H. Newton-Smith, The Rationality of Science 3 (Routledge & Kegan Paul 1981). 71 Carol Gilligan, In A Different Voice: Psychological Theory and Womens Development. Harvard, 1982, 1993. 1993 Preface by Gilligan. Gilligan concludes that science has its own flaws, arguing: [the so-called objective position] espoused within the canon of traditional social science research was blind to the particularities of voice and the inevitable constructions that constitute point of view. However well-intentioned and provisionally useful it may have been, it was based on an inerrant neutrality which concealed power and falsified knowledge.. xviii.



Science is itself a version of religious faith and a symbolic expression of the human ability to discover and understand all secrets of the universe. 72 This thread ran through Western culture in the Nineteenth and Twentieth centuries to the point that science not only became a quasi-religion within its own realm but a metaphor that extended its reach into virtually all realms, including dimensions where it has little or no application. 73 This is an implicit assertion that we are connected with the Mind of God. 74 For many philosophers this has implied the proposition that a Creator invested us with a uniquely divine ability operating through the combination of genetic capability often thought of as Reason writ large, and through the associated methods by which Reason is applied. 75 This construct represents a self-affirming belief in a sort of pre-Copernican identity in which the universe remains centered on humans. We have come to understand that in many ways this belief is a delusion. But we are trapped within several millennia during which those beliefs have penetrated our vocabulary, entered our deepest and often implicit conceptual structures, and shaped our intellectual activity to the extent we find it impossible to disengage from the construct. We are told, for example, to thine own self be true, but how do we know what this means if we do not understand the nature of self or truth? It has been said that the most difficult task a human faces is gaining self-awareness in ways that allow us to confront the truth about ones self. 76 Part of the problem is that we want to think better of ourselves than we often deserve. Self-deception allows us to remain oblivious to conditions and minimizes our accountability for not taking action to improve flawed
Cohen offers the idea that paradigmatic shifts in knowledge beliefs in fields of science are similar to religious conversion. The idea of orthodoxy is similar. An orthodoxy reflects the existence of an agreed upon set of principles, functions, truths and operating rules. It contains a strong core of adherents who possess vested interests in the continuation of the orthodoxys way of thinking about the world and allocation benefits. I. Bernard Cohen, Revolution in Science 468 (1985). 73 Anthony Giddens, The Consequences of Modernity. (Polity Press, Stanford University Press, 1990, paperback ed. 1991), sets out our dilemma. The condition of post-modernity is distinguished by an evaporating of the grand narrativethe overarching story line by means of which we are placed in history as beings having a definite past and a predictable future. The post-modern outlook sees a plurality of heterogeneous claims to knowledge, in which science does not have a privileged place. 2 Even philosophers who most staunchly defend the claims of science to certitude, such as Karl Popper, acknowledge that, as he expresses it, all science rests upon shifting sand.(fn. 32) In science, nothing is certain, and nothing can be proved, even if scientific endeavour provides us with the most dependable information about the world to which we can aspire. In the heart of the world of hard science, modernity floats free. 39. He adds: No knowledge under conditions of modernity is knowledge in the old sense, where to know is to be certain. This applies equally to the natural and the social sciences. 40. 74 Stephen Hawking, concludes A Brief History of Time with the hope that scientific inquiry may enable the physicist to discern the mind of God. Although I recall that Hawking may have backed off from this assertion in recent years it nonetheless reveals something about how we seek to connect ourselves with the universe. Hawking states: if we do discover a complete theory [of the whole of human knowledge], it should in time be understandable in broad principle by everyone, not just a few scientists. Then we shall all, philosophers, scientists, and just ordinary people, be able to take part in the discussion of why it is that we and the universe exist. If we find the answer to that, it would be the ultimate triumph of human reasonfor then we would know the mind of God. Id, at 175. Elegant hubris? Of course. But still an insight to how we really think and what we hope about the existence of a purposive link between us and divinity. 75 Boorstin, The Decline of Radicalism, supra, n. . For us, the idea of a constitutiona fundamental law which in some strange way is less changeable than the ordinary instruments of legislationhas had a peculiar therapeutic attraction. We retain an incurable belief that constitutions are born but not made, and this despite the carelessness, prolixity, crudity, and proven ineptitude of many of our State constitutions. Id, at 88. 76 [M]any peoplefind it almost impossible to realize that Socrates, in his precept know thyself was urging upon the individual the most difficult challenge of all. And they likewise find it almost impossible to understand what Kierkegaard meant when he proclaimed, To venture in the highest sense is precisely to become conscious of ones self. Rollo May, Mans Search for Himself 55, 56. (New York, W.W. Norton 1953).


situations. 77 The dilemma is that such an undertaking is impeded by our fear of the emptiness we encounter at our core. It also relates to our limited ability to overcome subjectivity, self-interest and ego defenses. III. Political Truths Political truths are of a different kind than empirical, mathematical or philosophical truths. While this essays ultimate focus is on legal truth it is developed in a context that necessarily includes political and religious truths. Although I am treating it separately for the most part, law is a political instrumentality. As is found in the other noncumulative systems there are important purposes for the choices we make about political truths other than knowledge, absolute truth and evidential validity. Law is politics by another name and it is easy to understand that truth is not the only virtue in a political/legal system. 78 It is not even the primary virtue. There are times when evidential or Rational truth is the enemy of the social order. Obviously, this is a very dangerous proposition that can be easily abused in the hands of power brokers. It is a proposition we generally allow to remain tacit because accepting it overtly or even acknowledging its necessity leads to cynicism. This contributes to the decay of the constructs of often incompatible values on which we ground our system. In the play, Man of La Mancha the stirring song The Impossible Dream urges us to strive for the right, without question or pause. To be willing to march into Hell for a Heavenly cause. Eloquent and stirring words, but how do we know what is the right? And what is it that we arent allowed to question and why cant we ask? Perhaps curiosity kills more than cats. Or it may be that social solidarity requires compliance and obedience to a code or social contract in order to work. If there are no answers behind the facade then exposing this fact may harm essential social coherence. As Toynbee indicates, most of what we have done over the past several millennia involve matters relating to humanity about which we cannot prove the truth but that collectively make up the building blocks of our culture based on our historical and current choices. 79 There are purposes for political truths that may include actual truth, but at least as often represent articulating whatever is required to attain desired ends. The ability to contribute to political outcome is therefore the primary characteristic of political truth, not intellectual, rational or evidential validity. The criteria on which political decisions are made, and the kinds of information disseminated for purposes of internal and external decisions will thus fall short of what would be supportable if the identical issue were
77 In speaking to humans fear of knowledge, Maslow offers the following insight: We tend to be afraid of any knowledge that could cause us to despise ourselves or to make us feel inferior, weak, worthless, evil, shameful. We protect ourselves and our ideal image of ourselves by repression and similar defenses, which are essentially techniques by which we avoid becoming conscious of unpleasant or dangerous truths. Abraham H. Maslow, Toward a Psychology of Being, Second Edition 60 (D. Van Nostrand, New York 1968). 78 Heather MacDonald, Law School Humbug, Autumn 1995 | Vol. 5, No. 4.; visited 6/24/04. She argues (disapprovingly): The core claim of both critical race theory and feminist jurisprudence is that law is merely a mask for white male power relations. Law, in other words, is indistinguishable from politics; the purported objectivity and neutrality of legal reasoning is a sham. 79 See, Toynbee, A Study of History 99-100, supra, n. 5.


being assessed from a rigorous analytic perspective aimed at coming as close to accuracy as possible. Truth or at least the reality of self-interested knowledge can even be a problem in political decision-making. George Gilder offers the idea of the essential function of hypocrisy, arguing: Idealists always much abominate what they call hypocrisy. But hypocrisythe insincere expression of unfulfilled ideals [emphasis added]is the means by which the influence of ideals is extended beyond the small circle of true believers. 80 Brinton offers similar remarks in advancing Nietszches understanding of the important role of hypocrisy along with Paretos idea of residues on which political policies are grounded even though they cant be proved in any way. 81 Propaganda, polemic, manipulation and half-truths are not only inevitable but necessary in a political system with the complexity we now face. This is because the matters about which decisions need to be made are so diverse, complicated and intertwined that no one really understands everything or can cut through the murk and political discord of the various factions in ways that lead to full and reasoned agreement. 82 A sense of strength, clarity and certainty are essential for a political systems stability. Political reality is multifaceted, made up of diverse contexts and truth-testing modalities to the extent it is impossible to produce a satisfyingly true explanation no matter how honest the attempt might be. This means we are flying blind in our political decision-making processes. All we can do is keep the worst disasters from occurring and adapt to input as it comes in. In seeking to understand our truth-seeking behavior in the political realm it is important to be honest about how as individuals we form opinions, reach conclusions, and block out information that does not fit into our cognitive and value structures. Part of this requires us to admit we are not fully integrated beings who have created a single coherent system by which we interpret our world. We hold many of our most fundamental values and beliefs in independent clusters. Each cluster of core beliefs operates according to its own distinct logics and proofs. The unfortunate fact from the perspective of achieving a shared set of truths is that the clusters of core beliefs are organized in ways that allow them to exist in hermetically sealed compartments tuned to different wavelengths. 83 To greater or lesser degrees each of us depends on protecting categories of core belief that mediate reception and how we can and are willing to interpret data. We do this in ways that protect our personal systems of value and the way we perceive and think. It is as if our core belief systems act as receivers set to specific frequencies. The settings determine what data will be received from the outside world as well as how the material
80 81 82 83

George Gilder, Wealth and Poverty 107 (Bantam ed. 1982).

Brinton, Ideas and Men, supra, n. 1. As to the inevitability of disputing factions, see, Madison, Federalist # 10, supra, n. .

Thomas Green, The Activities of Teaching at 43 (1971). See also, David Ausubel, Cognitive Structure and the Facilitation of Meaningful Verbal Learning, 14 J. of Teacher Education 217 (1963) who explains that, existing cognitive structure an individuals organization, stability and clarity of knowledge is the principal factor in the learning and retention of meaningful new material. What Green suggests is that we do not operate according to a single cognitive structure integrated across our being but that each core belief system possesses its own cognitive structure independent of or only loosely connected to the others and that incoming data is perceived and interpreted as well as incorporated in terms consistent with those individualized cognitive structures.


allowed into the particular mini-universe of each core belief is interpreted. Our ability to recognize the significance of the incoming data depends in large part on our conceptual or cognitive structure. 84 If something doesnt fit that conceptual structure it is either not heard at all or not processed. Even if processed and assimilated, the data are reshaped into a form and substance with which we are comfortable. Since the independent cores block out information and evidence that might conflict with their integrity we really do not understand the extent of our own hypocrisy and value fragmentation. Thus someone can be a racist and feel Christian, a Kantian philosopher and a bigot, be committed to wide ranging intellectual pursuit in one frame of reference and entirely closed-minded in another. This ability to insulate core elements of our belief system against conflicting evidence is a self-deception. It allows us to feel integrated, fair and rational when in fact we possess incompatible systems of values and beliefs not only between us and others but within us. For readers without a background in the psychology of human perception it may be startling to hear that numerous experiments have demonstrated that humans have the ability to see what they want to see or expect to see. As a general matter even if absolutely clear or true data are transmitted, we often fail to receive it at all or do so only after we have changed its character to fit within the limits of our conceptual preferences. This suggests why political truths have more to do with persuasion and providing people with information that fits their conceptual structures and core beliefs than with independent truth. Nonetheless, since we accept them as true and operate according to their implications, they are a form of truth. Political truths tend to be conveyed through propaganda rather than evidence or honest and complete discourse. As propaganda, they are intended to bypass rational thought and enter our perceptual systems at levels of pre-formed beliefs and values. 85 Nearly all of the judicial analysis in Roe v. Wade as well as that thrown back and forth in the ensuing three-decade struggle over abortion is political truth is based on calculated propaganda campaigns by both sides. Political truth depends on its particular function, transmitter, and receptor. The levels of certainty required in political decision-making by officials charged with grave public
84 It is impossible to have fully rational discourse in a complex democratic community. The deep value systems from which we consciously or subconsciously select the ultimate truths to ground our views and preferences are not rational or even necessarily consistent with other clusters of belief containing potentially competing deep values. Thomas Green warns that we hold within us multiple and frequently inconsistent value systems and beliefs and that we hold our value systems not as an integrated and seamless whole but in independent clusters that allow the holding of incompatible beliefs. These are resistant to the infection of fact and evidence--depending on the particular area of activity. Thomas Green, The Activities of Teaching 43, id. 85 In Propaganda, Jacques Ellul reminds us: A stereotype is a seeming value judgment, acquired by belonging to a group, without any intellectual labor . The stereotype arises from feelings one has for ones own group, or against the out-group. Man attaches himself passionately to the values represented by his group and rejects the cliches of the out-groups . The stereotype, helps man to avoid thinking, to take a personal position, to form his own opinion. He adds: no proof can be furnished where motivations or intentions are concerned or interpretation of a fact is involved. Jacques Ellul, Propaganda 57 (1965). In a separate work, Ellul continues this analysis: [M]odern man is beset by anxiety and a feeling of insecurity. He tries to adapt to changes he cannot comprehend. The conflict of propaganda takes the place of the debate of ideas. Ellul, Technological Society, at vii.


responsibilities are, for example, necessarily very different from those of scientific and scholarly searches for real truth. This is why the Bush administrations efforts to require federal administrative agencies such as the Environmental Protection Agency to base regulations on clearly established scientific truths are disingenuous. The fact is that we are dealing with political truths for purposes of political decision-making. The criteria and degrees of certainty are of a different character than apply in the scientific arena. Consider Judge Skelly Wrights decision in Ethyl Corp. v. EPA in which he discussed the standards applicable to the EPA Administrators regulatory decisions. 86 Judge Wright distinguished scientific, legal, and administrative standards of proof as well as function:
Where a statute is precautionary in nature, the evidence difficult to come by, uncertain, or conflicting because it is on the frontiers of scientific knowledge, the regulations designed to protect the public health, and the decision that of an expert administrator, we will not demand rigorous step-by-step proof of cause and effect. Such proof may be impossible to obtain if the precautionary purpose of the statute is to be served. Of course, we are not suggesting that the Administrator has the power to act on hunches or wild guesses. [H]is conclusions must be rationally justified. However, we do hold that in such cases the Administrator may assess risks. He must take account of available facts, of course, but his inquiry does not end there. The Administrator may apply his expertise to draw conclusions from suspected, but not completely substantiated, relationships between facts, from trends among facts, from theoretical projections from imperfect data, from probative preliminary data not yet certifiable as fact, and the like. [emphasis added] 87

The Ethyl Corp. court goes on to distinguish administrative, scientific and legal standards for decision-making according to the quality and sufficiency of evidence. In footnote 58, Judge Wright explains:
Petitioners demand sole reliance on scientific facts, on evidence that reputable scientific techniques certify as certain. Typically, a scientist will not so certify evidence unless the probability of error, by standard statistical measurement, is less than 5%. That is, scientific fact is at least 95% certain. [emphasis added] Such certainty has never characterized the judicial or the administrative process. [emphasis added] It may be that the beyond a reasonable doubt standard of criminal law demands 95% certainty. But the standard of ordinary civil litigation, a preponderance of the evidence, demands only 51% certainty. A jury may weigh conflicting evidence and certify as adjudicative (although not scientific) fact that which it believes is more likely than not. Inherently, such a standard is flexible; inherently, it allows the fact-finder to assess risks, to measure probabilities, to make subjective judgments. Nonetheless, the ultimate finding will be treated, at law, as fact and will be affirmed if based on substantial evidence, or, if made to a judge, not clearly erroneous. 88

Even when they appear to be dealing with the same subject matter and use the same terms, the realms of science and politics differ in the nature, quality and function of their truths. In the same vein, as noted by both Richard Hofstadter and John Kenneth Galbraith, we form our beliefs about what is true in the scientific realm at a relatively early point in our educational experiences and often fixate on principles and assumptions
86 87

Ethyl Corp. v. EPA, 541 F.2d 1 (D.C. Circuit 1976) (en banc). Ethyl Corp. v. EPA, id. 88 Ethyl Corp. v. EPA, id, at footnote 58.


about scientific truth that are obsolete. Richard Hofstadter has argued that professional work relies primarily on a substantial store of frozen ideas, and includes lawyers and most professors in this culture. He argues: the work of lawyers, editors, engineers, doctors, indeed of some writers and most professorsthough vitally dependent upon ideas, is not distinctively intellectual. 89 Hofstadter adds: The heart of the matter is that the professional man lives off ideas, not for them [emphasis added]. His professional role, his professional skills, do not make him an intellectual. He is a mental worker, a technician. 90 Nonetheless these archaic belief structures of what is purportedly true based on our early education in science and ideas that may now be obsolete filters into our interpretations of truth in other areas, including the legal and political. Trying to avoid this dilemma of political ignorance and insurmountable diversity in a real society is a reason Rawls posited his original position. 91 In the Original Position the persons creating the rules of allocation for society operated behind a veil of ignorance that meant they did not know anything about their own position in the society-to-be. Rawls thesis is that the rules chosen would be fairer due to a prudential response by the groups decision-makers to allow for better treatment in case they were among the less advantaged members of the new society. Of course, Rawls deviceat its core a selfinterested version of the Golden Rules do unto others as you would have them do unto you, was artificial and hypothetical. IV. Religious and Revealed Truths Religious and revealed truths are perhaps the most problematic types of truths. For the most part I am placing religious truths under this heading, but in certain aspects some of the most contentious political controversies also have elements of religious revelation concerning the positions taken by their advocates. I will discuss this subsequently in the context of Roe v. Wade. There is an intersection between political truths of the kind that have come to dominate American society from both Left and Right and belief systems characteristic of religion and deep ideology. Hobbes described six factors that weakened, or could even cause the dissolution of a political community. The first three of Hobbes factors have particular relevance to our consideration of the nature of truth. Each of these factors is at play in the disputes currently raging within society.
The belief that every private man is Judge of Good and Evil actions. The belief that whatever a man does against his conscience, is sin. The belief that Faith and Sanctity, are not to be attained by Study and Reason, but by Supernatural Inspiration or Infusion. 92

89 90

Richard Hofstadter, Anti-Intellectualism in American Life 26 (1963).

Hofstadter, Anti-Intellectualism in American Life, id. 91 John Rawls, A Theory of Justice (1971). 92 Thomas Hobbes, The Leviathan, supra n. , Part I, Ch. 13, at 185. The final three of Hobbes six factors are: The belief that he who has the Sovereign Power is subject to the Civil laws. The belief that every private man has an


Revealed truths were argued by Hobbes as having the potential to weaken or even destroy the fabric of a society. This is because compromise and respect for the decisions of the sovereign were considered essential for the ongoing integrity of the social order. This required all members of society to accept the obligation to obey law even if it was personally disagreeable. Hobbes concluded that society would be weakened or even dissolved if people refused to acknowledge the obligation to follow the law. We can see nearly all of this being played out in Roe v. Wade and the ensuing controversy. In both religious and ideologically revealed truths there will often be unshakable agreement among believers that the propositions they assert are true. The primary characteristic of such truth systems is that there is no way to rebut the assertions of the believers. This is because the principle at issue has been received from a higher source that operates beyond the limits of human reason. But it is impossible to know rationally or evidentially when a divine or ideal truth actually exists. It is equally difficult to agree on who has the ability to perceive that truth. Even if we agree that a revealed truth may be obtained there are serious concerns about the accuracy of that claimed perception as well as the quality of its communication to others--a concern about what might have been lost in translation. How are we to separate such truths from self-serving dogma and the desire of the interpreter or prophet to acquire power? This makes it almost impossible to negotiate conflicts between competing revealed truths or between a revealed truth and other forms of truth because of the perceived authoritative nature of the source of the revealed. This applies to ideological beliefs as well as the religious dimension. The danger of religious and revealed truths in a complex and democratic Rule of Law system emerges from the fact that such truths brook no compromise. 93 In the most extreme version, those who accept revealed truths bow their heads to no human system. There is no room for debate, discourse or compromise. Although it is easiest to perceive this problem in the context of an Islamic state or theocracy where laws are pervasive and seen as the will of Allah, there is a strong strand of revealed beliefs about what is true in the American system. While the most obvious would seem to be Christian fundamentalism, there are numerous other areas of revealed belief or truth where adherents are nearly as fanatical. The widespread belief in the market economic system and free trade as the path to wealth, happiness, freedom and democracy offers one example of a surrogate quasi-religious system of revealed truths.

absolute propriety in his goods: such as excluded the Right of the Sovereign. The belief that the sovereign power may be divided. 93 The consequences of this transformation are now striking American society with an extraordinary and relentless rapidity. Many are reacting in protest against this social revolution. The Reverend Tim LaHaye warns: [A]moral humanists have moved in, until they control our nations destiny and are seeking to separate her from God. This is particularly true of our judges, a high percentage of whom make humanistic decisions. Because most judgeships are appointed positions, it will take several years to change that picture. The only way to bring morality back into our judicial system is to elect strong, pro-moral candidates to all federal offices, particularly in the key position of president. Tim LaHaye, The Battle for the Mind 20 (1980).


We need to better understand the ways the various forms of truth are used because a form that is appropriate in one context and for one function may be inappropriate, unwise or wrong when applied outside its sphere of legitimacy or when it is allowed to trump others truths. Properly understood each of the forms of truth may be considered appropriate in its functional realm. But this does not mean that anyone else outside that realm, or that someone with a different conclusion within that dimension, will accept an assertion as true. The criteria for whether something is true within its functional space help determine its legitimacy within that space. It is for the occupiers of that space to resolve matters of the internal legitimacy and weight to be assigned. Problems emerge in relation to two phenomena. One is the internal competition for dominance within a particular category, e.g., religion, when one sect seeks to dominate others rather than tolerate differences in belief. This creates inevitable political consequences. We have continually witnessed schisms between and within sects that to one not a part of those beliefs seem trivial. Yet Protestantism has lived up to its name, protesting not only Roman Catholicism but finding time to splinter into thousands of distinct variations, each presumably claiming to possess the truth. Conflict within a functional compartment is only one aspect of the problem. Another emerges when truths from one realm leak into other realms for which they are inappropriate. But it is also important to recognize that in human society values are made up of mixtures of deep beliefs grounded on tradition, function, faith, morality and authority. It is thus inevitable and often appropriate that the systems overlap and inform each other. In a democratic system, the problem is when one position is claimed to have priority to the extent it trumps the other, or when the penetration is too extreme and informing seeks to become dominance. 94 This is happening in Roe v. Wade because the competing positions are essentially based on what can be described as Religious Truths on the one hand and Revealed Truths on the other. The advocates basing their positions on religious truths know when life begins, know that God exists, know that sex is sinful in the first place and know that sex outside marriage is an affront to God. They know Gods intent, that America is a Christian nation, that Heaven and Hell exist and that God imbues each human with a soul. Those who favor a womans power to terminate a pregnancy know that a fetus is little more than a piece of meat with blood flowing through it, at least until the pregnancy is well along. They know that humans are somehow created with inalienable rights that cannot be taken away by a community, at least in this specific situation. They know that the potential for life that a pregnant woman carries within her is not a person until late in the process or until born. They know that God does not give us a soul or that if that does occur, it doesnt happen until late in the process or birth. In such a situation
Our democratic system of enormous diversity, conflicting fundamental values, and diffuse clusters of power, can therefore function effectively only through the voices of powerful advocates and wise judges. Locke observes that law is what helps to hold the system together against individual efforts to take advantage of others. See, John Locke, Of Civil Government Second Treatise 67, 68, Introduction by Russell Kirk, (Henry Regnery 1955).


each side is insisting that their beliefs are absolute and trump all other considerations across the board. This leakage from the realms of religious and revealed or quasireligious beliefs where such intensity of received truth is appropriate, to situations where it is incompatible with the definitions, functions and content of what is true in that dimension is at the root of the problems we are now encountering. Leakage across functional boundaries is critical. The intelligent design/creationism dispute offers an example of a situation where leakage is occurring as part of a political strategy. The leakage occurs partly due to ignorance but much of it is strategic. Take the conflict in the U.S. over whether religion should be taught in public schools. Seventy years ago the situation was reversed as indicated by the Monkey Trial (Scopes) in which Clarence Darrow led the court challenge to a state law that did not accept Darwin and his theory of evolution as something that should be taught in the schools. 95 Now those who want to see the possibility of divine creation taught along with evolution as an alternative explanation of how the universe (and therefore us) was created find that the shoe is on the other foot. Knowing that they will not win a direct battle they have used the language of Intelligent Design rather than Creationism as the formulation by which they can argue their view is legitimate and in some ways as a theory supported by evidence. The evidence of intelligent design is not said to be religious faith but the very ordering of the universe. The claim is that the intricacies of physical laws and the obvious fact that no matter how far back we have taken the hard science we still cant explain how things got started from the very beginning in terms of what might be called the First Cause. Strategically the approach is to reformulate your position in terms either more acceptable or in ways that fit within the discourse being used in order to be allowed to say what you want. In that way leakage occurs between the spheres of religion and science which, although in some ways dishonest, in others seems reasonably fair because science has been a sort of religion for well over a century and has operated according to numerous biases, acts of faith, and sometimes unprovable assertions. It is consistent with the values of those holding strong religious or revealed truths such as in the ProLife/ProChoice conflict to misrepresent and lie both to themselves and to others. This involves not only confusion, accidental misapplication of truths to inappropriate contexts, or category mistakes but an increase in overt lying, obfuscation, deliberate misinterpretation and falsification of data, biased interpretations, out-ofcontext arguments and analyses and similar deceptive approaches. It is an ends justifies the means situation. As Jules Henry, Daniel Boorstin and others have observed, our culture no longer rejects dishonesty and appears to consider it a virtue in some instances. 96 A result is increased distortion, and an increase in false claims and halftruths in our behavior and discourse. Under such conditions given the general

Numerous reports abound. See analysis of State (of Tennessee) v. John Scopes (The Monkey Trial), Visited 2/27/06.

96 See, Jules Henry, Culture Against Man (Vintage Books 1965), and Daniel Boorstin, The Image: A Guide to PseudoEvents in America (1961). Each lucidly discusses the extent to which deception, propaganda and lies have taken over American society.


degradation of the ideal of truth, why should anyones assertion be entitled to anything but suspicion? The depth of the abortion conflict offers an example of revealed truth on both sides. Each claim represents a position grounded on fundamental ideological beliefs to the extent there is no probability of a negotiated compromise. Nor, as we have seen in abortion clinic murders by people claiming to be committed to the sanctity of human life, are the believers willing to obey secular law. 97 The idea of being able to identify what one considers to be an unjust law and to refuse to obey that positive law based on personal moral beliefs or divine agency can be seen in numerous situations. This includes Mahatma Gandhis doctrine of passive resistance and civil, non-violent disobedience that was incorporated so effectively into the civil rights movements in the United States. We have seen the same strategy in relation to the issue of gay marriage in which the Mayor of San Francisco as well as clerks and mayors in a handful of other jurisdictions ignored state laws based on their personal determination of right and wrong. On one level these can be lauded by their supporters as acts of principled civil disobedience. On another, they reflect contempt for the due process of law in an inherently fragile belief system where respect for law is both essential and an end in itself if the system is to survive. We are in a realm where the perception of certainty prevails in the minds and hearts of believers. But there is no agreed on or shared way to test the truth of the propositions to the satisfaction of people who are not part of the believing group. 98 Many of our most intense political disputes derive from revealed truths. This creates a constant tension between the individual and the community. Included in this tension is the nature of an individuals responsibility to the community and the communitys responsibility to the individual. V. Legal Truths When someone asserts that truth is a power-driven construct, and that those in power use their leverage to create a system weighted in ways favorable to their interests, the responses of lawyers, judges and legal scholars are likely to be something like: Jacques [Derrida] and Michel [Foucault], what took you so long? It is impossible for legal scholars and judges to escape the dynamics of how lawyers are educated. 99 The educational process by which lawyers are trained, the ambiguous substance of legal study, and the nature of law practice irreversibly shape American legal scholars
Antieau, The Higher Laws, supra, n. , discusses the right or duty of individuals to disobey positive law when it runs counter to divine or natural law. 98 See, e.g., E.J. Dionne, Jr., Liberals fear new judicial activism, The Plain Dealer, Friday, July 14, 2000 at 9-B. Dionne writes: Attacks on the imperial judiciary were once the stuff of conservative arguments against a liberal activist Supreme Court. That is about to change. In a shift that is momentous in historical and political terms, liberals are beginning to sound alarms about conservative justices using states rights and other doctrines to void environmental, economic and social legislation. Id.
David Barnhizer, Princes of Darkness and Angels of Light: The Soul of the American Lawyer, Notre Dame J. of Law, Ethics & Public Policy (2000).
99 97


intellectual methodology. This intellectual perspective and background is most likely a result of American pragmatism fused with the peculiarly American form of legal thought and education. 100 The same dynamic is in play when a lawyer writes a brief in support of a position or, as we saw in Roe, when a judge writes an opinion in a contested and controversial area. The lawyers product is crafted with an eye to its persuasive impact and tries to avoid leaving openings for those with competing positions. 101 Complete honesty would weaken my sides position with decision-makers and provide opponents with ammunition they will use against my sides interests. An advocates truth is different from a scholars. In the noncumulative discipline of law legal scholars have been functioning as advocates and activists while masking the fact of their advocacy. 102 In the search for truth there are many roads not traveled by scholars who do not want to harm the interests of their friends and allies. As Ellis Cose points out, others with competing interests will take your words and re-interpret them to their political advantage. 103 In considering the nature and function of legal truth we need to remind ourselves of the importance of acting as if the emperor is fully clothed. Otherwise we force everyone to see the ugliness, pomposity and weakness of our own natures. Taken too far this risks damage to the power of the law and undermines its ability to hold the complex patchwork system of political compromises together. 104 Aristotle captured the idea of the implicit hypocrisy of advocacy in his description of the role of the advocate: render the audience well-disposed to yourself, and ill-disposed to your opponent; magnify and depreciate [make whatever forms your case seem more important and whatever forms the opponents case seem less]. 105 In speaking of legal
On this topic comparing European and American modes of legal thought, see, James B. Conant, Two Modes of Legal Thought (1964). 101 See, e.g., Derrick Bell, The Strange Career of Randall Kennedy, New Politics, vol. 7, no. 1 (new series), whole no. 25, Summer 1998. Bell criticized Randall Kennedy, Race, Crime and the Law (New York, Pantheon Books, 1997). He relates that when Bell questioned what he considered to be Kennedys racially disloyal approach to scholarship and teaching, Kennedys response to my warning was: Cant I write what I think? Of course, Randy I agreed, but whenever a black person is in a position to get his views on race published, he or she should keep in mind that white people who do not like what we are doing, do not play fair. I explained that those with an anti-black axe to grind take our words out of context and use them with what they will claim is black-endowed legitimacy to harm those blacks less well off than we are. My prediction proved accurate. Kennedys article was hailed by white critics of our work and condemned by most black and some white scholars. [citations omitted] 102 See, e.g., David Barnhizer, Truth or Consequences in Legal Scholarship, Hofstra L. Rev. (2005); David Barnhizer, A Chilling of Discourse, St. Louis L.J. (2006). 103 Ellis Cose, Color-Blind: Seeing Beyond Race in a Race-Obsessed World xv (Harper Collins 1997). 104 Ernest Becker, The Birth and Death of Meaning 139 (2d ed. 1971). The world of human aspiration is largely fictitious and if we do not understand this we understand nothing about man. Mans freedom is a fabricated freedom, and he pays the price for it. He must at all times defend the utter fragility of his delicately constituted fiction, deny its artificiality. 105 Aristotle, The Epilogue, reprinted in The Rhetoric of Aristotle 3.19 (L. Cooper ed. & trans. 1932). Never was this more obvious as is reflected in Simpson defense team lawyer Gerald Uelmans statement: Our purpose was to employ every advantage the law permits to enhance the prospects of our clients acquittal. Our purpose was to utilize every device and stratagem the law allows to weaken and discredit the prosecutions case. The vindication of our client was the beginning, the end, and the substance of our every effort. Anything less would have been a violation of our ethical responsibility to faithfully perform the duties of an attorney-at-law. Albert W. Alschuler, How to Win the Trial of the Century: The Ethics of Lord Brougham and the O.J. Simpson Defense Team, 29 McGeorge L. Rev. 291, 293 (1998) (quoting Gerald Uelman).


advocacy Plato warned that the advocate enchants the minds of the courts of law, adding: he who would be a skillful rhetorician has no need of truth [I]n courts of law men care nothing about truth, but only about conviction.... 106 Judges and scholars are embedded in the system they are judging, ordering and critiquing. We cannot escape being influenced by the conditions and subjectivity of the system within which we function. 107 As a form of politics, the legal systems methods mask its truth behind fictions and illusions at least as much as they reveal truth. Law is a formalized way of bringing political choices into the community in a form that allocates benefits, risks and duties backed by the potential for enforcement through the use of state power if the choices are not respected. The fact that law is a form of politics, a fiction and an illusion is not automatically bad. This is because some of the other ends and functions protected and served by the law are vital to the coherence and integrity of the social system. Without the authoritative compromising mechanism of the legal dispute process many of our controversies could not be ameliorated short of violence or use of excessive power. 108 But there are consequences. For judges and lawyers these consequences include that it is very difficult to believe in things. The grayness of ambiguity supplants truth. Judges and lawyers are affected by the subject matter, processes and values of the system within which they operate. One scholar has suggested that: the most important skill the law teacher imparts is the skill of advocacy 109 He adds that: The indifference to truth that all advocacy entails is likely to affect the character of one who practices the craft for a long time and in a studied way. 110 Legal truths are designed to sustain a decision-making system that produces authoritative outcomes. This occurs through interposing the authority of the state to resolve disputes. John Finnis sounds positively postmodern in his assertion that law is a cultural object, constructed or posited by creative human decision an instrument we adopt because we have no other way of agreeing amongst ourselves over significant spans of time about precisely how to pursue our moral project well. 111 He goes on to describe law as providing algorithm[s] for deciding as many questions as possible. As far as it can, the law seeks to provide sources of reasoningstatutes and statute-based rules, common
The Works of Plato 292, 306 (I. Edman ed. 1928). See, Peter H. Schuck, The Limits of Law: Essays on Democratic Governance (2000), particularly Schucks discussion of legal complexity in Chapter One. 107 Thomas Kuhn remarked on the fact that the existence of the scientific observer impacted upon the thing being studied. See Thomas S. Kuhn, The Structure of Scientific Revolutions (University of Chicago 2nd edition, revised 1970). My point is that all observers, but perhaps particularly observers in the noncumulative or soft disciplines such as law, operate not from some Archimedean point external to the system being observed and assessed but from within the system and as part of the system. We can try to mute, identify, clarify and balance this condition but we cant escape the subjectivity it imposes. 108 Justice Rehnquist, in dissenting in Furman v. Georgia, quotes from Mills, On Liberty: The disposition of mankind, whether as rulers or as fellow-citizens, to impose their own opinions and inclinations as a rule of conduct on others, is so energetically supported by some of the best and by some of the worst feelings incident to human nature, that it is hardly ever kept under restraint by anything but want of power. Furman v. Georgia, 408 U.S. 238, 467 (172) (Rehnquist, J., dissenting) (quoting J.S. Mill, On Liberty 28 (1885). 109 Anthony Kronman, Foreword: Legal Scholarship and Moral Education, 90 Yale L. Rev. 955, 959 (1981). 110 Kronman, Legal Scholarship, id, at 964. 111 J. Finnis, Natural Law and Legal Reasoning, 38 Cleve. St. L. Rev. 1, 6 (1990). See generally, J. Finnis, Natural Law and Natural Rights (1980).


law rules, and customscapable of ranking (commensurating) alternative dispute resolutions as right or wrong, and thus better or worse. 112 The analytical difficulty is that there is no single value capable of automatically trumping all others. This is why our ability to gain any consensus on truth is limited. It helps explain why we are advocates as well as scholars in the law schools and the other noncumulative disciplines. Sunstein concludes: we value things, events, and relationships in ways that are not reducible to some larger and more encompassing value. The second claim is that human goods are not commensurable. By this I mean that human goods are not assessed along a single metric. 113 He goes on to conclude that: efforts to insist on a single kind of valuation and to make goods commensurable, while designed to aid in human reasoning, may actually make such reasoning inferior to what it is when it is working well. 114 Although we often hear that a trial is a search for truth, lawyers know that it is not. A trial is a search for outcomes that will be accepted by disputing parties. While protestations of truth-seeking are often found in rhetoric there is an inherent hypocrisy in the truth-seeking methods and claims of the legal system. This doesnt mean that truth is irrelevant in law, only thatas in the political dimension--it is not primary. Legal truth is subordinated to other ends. Some of these ends are legitimate and others represent methods by which illegitimate discrimination is facilitated while hiding behind language of principle and process. The insight that much of what we like to take as true is really a matter of choice and that choices are value judgments that contain biases and points of view that inevitably allocate benefits and costs differentially as a matter of power must have been stunning to those who would have preferred a system with immutable validity. There is, however, something that has long set lawyers and American legal scholars apart from most others. While lawyers and legal scholars deal in principles, they are trained from the moment they enter law school to see the world in shifting and ambiguous shades. 115 A lawyer is taught that one of the worst mistakes an appellate advocate can make is to be drawn into a line of response to judicial questioning that extends an argument to its logical extremes rather than remaining within the concrete context of the dispute at issue. In the field of ecology the idea of the butterfly effect represents a situation where a tiny action or inaction can cause ultimate systemic collapse. In a chain of logic that relies on a parade of imaginary horrors the logic of relevance and interconnectedness can tie any point to any other point. Formalistic reasoning that refuses to admit distinctions, gradations, and the force of experience and tradition can undermine and reject any existing institution or value.
112 113

Finnis, Natural Law and Legal Reasoning, id. Cass R. Sunstein, Free Markets and Social Justice 70 (1997). 114 Sunstein, Free Markets, id. 115 Edward Levi remarks: The categories used in the legal process must be left ambiguous in order to permit the infusion of new ideas.... Furthermore, agreement on any other basis would be impossible. In this manner the laws come to express the ideas of the community and even when written in general terms, in statute or constitution, are molded for the specific case. Edward H. Levi, An Introduction to Legal Reasoning 4 (Univ. Chicago 1949).


Lawyers understand the necessity of partial truths and the importance of political truths. They are comfortable with the need to cope with the fact and fictions of situations about which it is either unlikely or even impossible, to know what is true. As a reasonably skilled lawyer, after conducting several thousand interviews with clients and witnesses, as well as many negotiations and numerous trials, I have no trouble admitting there are many instances where I have come to the end of a case without knowing what is true. Nor, regardless of the lofty rhetoric of the legal system proclaiming a trial is a search for truth it is not my job to know what is true as opposed to achieving a desired outcome for my client. 116 There are tactical constraints and moral points beyond which I will not go in handling a clients situation, but it would be false to pretend my function is aimed at a full or balanced presentation of what is true. As an advocate my challenge is about how to shape the material of the situation in a way that produces a desired outcome. This requires that I design an advocates version of a reconstructed reality in a way that advances my clients interests. This has nothing to do with truth-seeking and everything to do with outcome. Ironically, the claim that law and science were conjoined has long been an element in the belief system represented by legal education and legal scholarship in America. This mistaken idea has exerted a powerful influence on legal scholarship for over a century. For American legal scholars, a Platonist view of a higher reality of forms that humans could only dimly perceive reflects legendary Harvard law dean Christopher Langdells conception of the existence of a higher legal reality. Langdell argued that the reality of law was capable of being accurately interpreted through the Rational powers of the judiciary. Judges filled this role by identifying and extracting principles of universal law from the tangled skein of human disputes and applying them through judicial decisions. Langdell further posited the role of legal scientists in the law schools as that of synthesizing the universal principles of Law from the collective mass of what he considered the raw data of judicial interpretations. 117 The judges discovered the universal principles and applied them to the specific cases before them. The legal scholar methodically extracted the strands from the judges discoveries and wove them into coherent forms we call Contracts, Torts, Property and so forth. Put in such terms Langdells system seems nave to the extent it suggests or even claims that there is a universal and penetrable structure of Law rather than a human-bound and
In response to a lawyers statement that [telling the truth in civil litigation] is, of course, a very attractive proposition. But while that might be nice in a perfect world, it is not the way the system operates in litigation in this country. An indignant court stated in Monsanto Co. v. Aetna Casualty and Surety Co., 593 A. 2d 1013 (Del. Super. Ct. 1990) that: I am compelled in the strongest way possible to reject counsels observations as being so repugnant and so odious to fair minded people that it can only be considered as anathema to any system of civil justice under law. 117 James Conant quotes from Langdells, A Selection of Cases on the Law of Contracts: Law, considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility to the ever-tangled skein should be the business of every earnest student of the law. James B. Conant, Two Modes of Thought at 44 (1964), quoting Langdells, A Selection of Cases on the Law of Contracts (1871). If law be not a science, a university will best consult its own dignity in declining to teach it. If it be not a science, it is a species of handicraft, and may best be learned by serving an apprenticeship to one who practices. Christopher Langdell, Address delivered Nov. 5, 1866, reprinted in 3 Law Q. Rev. 123, 124 (1887).


human-created system of rules among which judges choose. 118 Langdell was implicitly arguing for the existence of a Natural Law that ordered human societies, just as there are Natural Physical Laws discoverable by the physical sciences that dictate the operation of our world. Truth in such a system involved our ability to perceive and accurately interpret the true rules of law that existed in this universal order. Putting Langdells Folly to the side, it is more useful to consider the interplay between legal truth and political and received and revealed truths. Focusing on these forms of truth not only brings in views of our Constitution as a source of deified truth. It also implicates matters relating to the wisdom involved in the pace, speed, and interplay of factions competing for power and the primacy of their agendas. In the heated debates over the appropriate limits on interpretation of law by judges concerning such matters as original intent, strict construction, and adaptation of constitutional provisions to the changing conditions of cultures far removed from those experienced by the Founding Fathers, we often lose sight of the necessity of controlling the rapidity and starkness of change. 119 The Conflicting Needs for Stability and Change in Law Roscoe Pound observed that the law seeks principles of both change and stability. 120 The principles of change and stability are contained in the multifaceted system we call law, embedded in the assumptions and values represented in the complex system of legal doctrine. Aristotle warned that law has no power to command obedience other than through habit. 121 Absent the use of overt force, most of us defer to legal rules because it is the easiest path, because we know rules are necessary, or because we are risk averse. Too rapid or frequent change diminishes the dignity and majesty of the law and lays bare the Oz-like illusion of judges as black robed wizards. At the highest level of the American version of the Rule of Law, the disputes are often between those who seek to bind the U.S. Constitution to what they consider original
Langdell argued: [A] man of mature age, who has for many years been in practice at the bar changes his habits with some difficulty. He has become used . . . to making himself a temporary specialist in a narrow field, and finds it hard to adapt his mind to the quite distinct profession of the teacher, whose field must be the whole law. The Centennial History of the Harvard Law School: 1817-1917, at 26 (1918) (quoting Christopher Langdell). 119 Jonathan T. Molot, The Rise and Fall of Textualism, 106 Columbia L. Rev. 1 (2006); John F. Manning, What Divides Textualists from Purposivists? 106 Columbia L. Rev. 70 (2006); Barry Friedman, The Politics of Judicial Review, 84 Texas L. Rev. 257 (2005). See also, Scalia, Laws Quandary, supra, n. 18; Steven Breyer, Active Liberty: Interpreting Our Democratic Constitution (Alfred A. Knopf 2005); Aharon Barak, Purposive Interpretation in Law, Translated from the Hebrew by Sari Bashi, (Princeton 2005); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, (Harvard 1980). Ely argues: There are signs that interpretivism may be entering a period of comparative popularity. Several reasons seem apparent. The first is that the controversial abortion decision of 1973, Roe v. Wade, was the clearest example of noninterpretivist reasoning on the part of the Court in four decades: it forced all of us who work in the area to (2) think about which camp we fall into, with the result that a number of persons would today label themselves interpretivists who had not previously given the choice much thought. (3). 120 Pound, Law Finding Through Experience and Reason, supra, n. . 121 See, Aristotle, The Politics, B. Jowett trans., The Oxford Translation of Aristotle, W.D. Ross ed. (1921): For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law. Bk. II, c. 8. David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L. J. 857, 859 (1986), states: [I]n landmark cases the Justices alter the puzzle itself and create law. Thus, while judicial legitimacy requires faithful adherence to precedent, legal development turns on creative acts.


understanding or intent and those who consider the Constitution as representing a more dynamic process implemented through adaptive interpretation. 122 The American Constitution is a point at which law, politics, philosophy and religion combine. An element of all of these is ideology. We have treated our Constitution as a revealed set of higher laws even though on one level we know rationally it is not. But we have also chosen to make the Constitution into something equivalent to Moses Tablets brought down from the mountain. 123 We can call this a fiction but since we create the political and legal part of our reality as long as we choose to treat it as true it is true. This comes out most dramatically in the context of religion. There may be a separation between the formal institutions of church and state in America, but the Constitution represents a natural law revelation equivalent in our core belief systems to the Ten Commandments. 124 On the rational level this belief is a fiction. But the fiction of a higher law embodied in the Constitution is both a religious and metaphysical set of choices with significant implications for how our political order operates.125 Abandoning the tacit belief that the Constitution is a source of natural law will lead to even greater factionalism than we are experiencing. Other consequences would be a reduced respect for the law within the dynamics of our social ordering, and an attenuation of the willingness to negotiate social compromises. Legal Scholars and Truth-Seeking Truth is only one element in law and legal scholarship. Very little of what legal scholars do relates to anything universal or cosmic. It is system maintenance and corrective justice work that deals with human conditions and disputes that are internal housekeeping elements of the human community. 126 Much of the work of legal scholars might fairly be called a form of continuing legal education for judges and practicing lawyers. Other approaches identify wounds that have been inflicted on the society, some deal with how to repair the structural fissures in the community, and some offer proposals about how to heal the wounded through law. Others expose or sanction the thieves and embezzlers who scholars consider to have unfairly or unjustly stolen social goods through improper manipulation of the law and legal institutions. Like lawyers and judges, legal scholars are shaped by the combination of the unique training offered by law schools, the subject matter of law, and their scholars professional experiences. This mixture makes legal scholars into advocates, altering the way legal scholars perceive, interpret and express their points of view. A consequence is that American legal scholars have little to do with the search for independent truth, and much to do with pursuit of consequences, even if that activity is masked behind clever polemic. 127
122 123 124 125

For the positions on constitutional interpretation see, sources collected at n. 116, supra.
Boorstin, The Decline of Radicalism, supra, n. 60 at 142.

See, Antieau, The Higher Laws, supra n. 11. See Robert C. Clark,
David Barnhizer, Truth or Consequences in Legal Scholarship, 50 Hofstra L. Rev. (2005).

I sought to explain some elements of this in David Barnhizer, Natural Law as Practical Methodology: A Finnisian Analysis of City of Richmond v. Croson, 38 Cleveland St. L. Rev. 15 (1990).
126 127


I have long felt that many legal scholars in America fear that they are only mental technicians rather than brilliant jurists whose work is worthy of respect in the same way as that of pure scientists, philosophers and other real scholars.128 Legal scholars are particularly confused in their role because the person who becomes a law professor in America typically comes to that position without any real research methodology. The legal scholar lacks clear disciplinary goals and possesses a mixture of experience and training that emphasizes advocacy. Legal scholars are not prepared with an independent methodology any more than any other lawyer. Since the essence of legal education is training students to think like lawyers (although no one is actually certain what that means) law teachers fall into their scholarly fields without real training in the enterprise and without clear method or intellectual goals or criteria. Doctrine and Legal Truth Another characteristic of legal scholarship is that it is almost exclusively self-contained within the legal/political system, focusing on internal conditions and critiques. Legal scholars are assessing, suggesting, inventing and critiquing law in its creation and instrumental application. But they are doing so within a largely (or completely) closed complex human system that allocates rights, social goods and duties. It takes place within the elastic structure of an invented human society that operates in accordance with formal and informal rules inhibiting and allocating rights and duties within the competition for advantage and power that characterizes how we behave. This has involved a concentration on the doctrinal structures and judicial choices that are the governing elements in a Rule of Law based society. Doctrines and the statutory variations by which law is applied comprise a complex system of overt and covert policy-making and implementation of social choices through law. The combination of judicial doctrine, legal institutions and legislative choices represents the creative, facilitative and mediating linkages between societal needs, institutional capabilities and political demands. Even here, however, most legal scholars function within specialized compartments of law and doctrine, not by seeking to comprehend and integrating the total system of law. These variables work to allocate social goods, facilitate critical decision-making, and sustain the foundational rules of our society. They combine to generate the roots of a political system, and are critical forces necessary to a societys stability. They must also be challenged in the discourse of any healthy political community based on democratic principles. The law and legal system are not one-dimensional when it comes to functions, substance and process. The political systems represented by terms such as law and legal system are multifaceted and organic structures filled with technical, moral, religious and community data, goals and substance. Some doctrines function as principles that serve as the systems foundation. Others operate to provide the large-scale structure while some serve as the internal structure of parts of the system. But this is only the beginning of the analysis. All systems require rules that govern their operating

See Hofstadter, supra, n. .


dynamics. Some doctrines represent critical aspects of the structure itself, its frame and architecture. Others provide the fuel to keep it operating. Some represent the engineering principles and design factors. Some doctrines offer the goals of the overall system or subsystem to which they are relevant. Some work to repair breakdowns while others provide the ability to adapt to changing needs and goals. 129 Different forms of truth operate to greater or lesser extent in relation to specific sets of doctrines. Some of the doctrines are easily malleable in their ability to change without impact on the system. When structural or foundational principles are involved there is a potential threat to the integrity of the system itself. This is one point at which our perspective on truth comes into play. If virtually all human truths are constructed and chosen within a closed system then refusing to acknowledge the validity of those
The choices reflected in many of the doctrinal categories represent implicit cultural, moral, political and philosophical traditions and assumptions. Some are premised on assumptions about scientific validity because the law contains processes whereby science can be brought into the substance of particular doctrines when it is relevant. The listing offered here is incomplete and imperfect. Its intention is not to analyze a fully coherent system but to stimulate the reader to think about the complex systems involved in law and the rules served by doctrine within that system. Doctrines of Authority -- Examples include doctrines of the judicial authority of the common law judge, constitutionally derived grants of specific jurisdiction and authority, statutory grants of judicial authority, the doctrine of judicial review, the discretion provided trial judges, and the authority of the Supreme Court. Doctrines of Structure -- Illustrative doctrines can be found in the "check and balance" rules of the federal and state systems the idea of the Rule of Law itself, the concept of the adversary system, the law-morality dichotomy, limits on appellate review of both court and administrative decisions, and the significant discretionary latitude given trial judges. Doctrines of Values -- The Rule of Law, justice as fairness, the "search for truth," equality and liberty distributive justice, liberalism and conservatism, democratic/majoritarian values, and the willingness to recognize the authority of the Supreme Court. Doctrines of System Purpose and Outcome -- Achieving final outcomes/resolving more intense conflicts, preventing unmanageable hostilities, "doing justice," corrective and distributive justice, checking the power of other formal governmental institutions -- through setting clear bounds, balancing competing interests, and redressing abuses, the use of previously objective rather than subjective doctrines. Doctrines of Interpretation -- Stare decisis, judicial review, analogical reasoning ("thinking like a judge"), burdens of proof, limits on appellate review of courts, deference and other limits on appellate review of administrative agencies, harmless error versus reversible error, the rational basis versus the compelling governmental interest tests regarding judicial review of legislative acts, the case and controversy requirement, ripeness, invidious discrimination, inherently suspect categories. Doctrines of Human Nature and Society -- Mens rea, the reasonable person, social contract, utilitarianism, capitalism and the market economy, socialism and/or Marxism, the welfare state, the minimal state, the organismic state, general welfare doctrines, human dignity, quality of life, equality/liberty. individualism, communitarianism, progress, social Darwinism. Doctrines of the Function and Nature of Law-- To approximate the perfect society or Utopia, apply the law of God, balance competing interests, resolve disputes, set the minimally necessary framework, sanction and/or deter those who would harm the community, seek justice, achieve distributive and corrective justice, retributive justice, advance majority preferences, protect minority interests, distribute and redistribute goods and bads according to some system of desert. Doctrines of Balance -- Judicial review, procedural due process, political questions, ripeness/case and controversy, discretion, jurisdiction, discretionary appellate review, pluralism. Doctrines of Limits -- The law/morality distinction, due process, equal protection, federalism, ripeness/case and controversy, political questions, precedent, objective v. subjective doctrines. Doctrines of System Preservation -- Political questions, ripeness, case and controversy, jurisdiction, judicial review of legislative acts, appellate review. Doctrines of Change and Adaptation -- The evolution of precedent and the grounding in the common law, the adversary system itself, judicial notice of legislative facts, judicial discretion, the sources of judicial authority, the window to "social policy," the principles for interpreting legislative history, the principles of interpreting history. Doctrines of "Sourcing" of Law and Legal Institutions -- The common law itself, the Constitution, Federalist Papers, intent of the Framers, legislation and legislative history, democracy, the rational fully knowledgeable human, inherent powers. police powers, the community, national defense and security, etc.


fundamental architectural choices endangers the system. If we apply the criteria of scientific truth to any non-scientific principle or doctrine the truth is that it cant be proved true according to that strict standard of empirical validity or falsifiability. This becomes obvious in the context of Roe v. Wade. The Search for Truth within Legal Analysis The methods used by judges, legal scholars and lawyers involve distinct truthdetermination processes of variable characters. These relate to the nature, quality and source of data. They also involve varied functions for which the truth is intended. A court trial, for example, is widely proclaimed to be a search for the truth. Whether it is a criminal, civil or equitable proceeding we base our decisions about what is true on a formal methodology within which the adversary systems data is offered in the form of legally qualified evidence. The determination of what is true is made through the exercise of a jurys or judges exercise of practical wisdom that is thought to allow the sifting of competing evidence and the identification of truth in the dispute. While we claim the adversary systems method is a search for truth, the reality is somewhat different. Simpson defense team lawyer Gerald Uelman has stated that: Our purpose was to employ every advantage the law permits to enhance the prospects of our clients acquittal. Our purpose was to utilize every device and stratagem the law allows to weaken and discredit the prosecutions case. The vindication of our client was the beginning, the end, and the substance of our every effort. Anything less would have been a violation of our ethical responsibility to faithfully perform the duties of an attorney-atlaw. 130 Jerold Auerbach warns: Litigation expresses a chilling, Hobbesian vision of human nature. It accentuates hostility, not trust. Selfishness supplants generosity. Truth is shaded by dissembling. 131 If two wrongs dont make a right it is hard to believe that the synthesis generated by the offerings of two or more legal advocates allows a jury to attain truth rather than resolution. Anne Strick, in Injustice for All, also argues that the adversary system subverts the justice it claims as its purpose. 132 Strick concluded that: the goals of winning on one hand and truth on the other are mutually exclusive... 133 She is correct. Truth is not irrelevant in the legal system but it is subordinated to the stronger priority of achieving preferred outcomes. The search for truth is a search for whatever is needed to resolve disputes with that final choice backed by the power of the state. 134
130 131

Alschuler, How to Win the Trial of the Century, supra, n. , at 293. Jerold S. Auerbach, Justice Without Law? at vii (1983). Auerbach has described the evils of the social system and legal profession. He recognizes the severe limits of alternative approaches to dispute resolution of the kind now being prescribed as cures for the deficiencies of the adversary processadmitting the adversary system, while problematic, is a necessary evil in an anonymous society which has increased greatly in its scale of operation and lost any real sense of local and tight-knit community. 132 Anne Strick, Injustice for All: How Our Adversary System of Law Victimizes Us and Subverts Justice at 124 (Penguin 1977). 133 Strick, Injustice for All, id, at 255. 134 See, David Barnhizer, The Virtue of Ordered Conflict: A Defense of the Adversary System, 79 Nebraska Law Review 657 (2000).


Jerome Facher, a defense lawyer in the environmental pollution case that provided the basis for Jonathan Harrs A Civil Action, observes that: if a trial aspires to be a search for truth, the student must still ask whose truth are we searching for, whose truth has been revealed and whose truth do we accept? Is it the lawyers truth? The plaintiffs truth? The defendants truth? The witnesss truth? The judges truth? The publics truth? The medias truth? 135 Facher goes on to argue: Whatever the answers to these philosophical puzzles, a trial confronts us with a real life controversy which must be resolved by presenting evidence, finding facts and applying the law. In light of this reality, a fair trial in a fair adversarial system not only resolves the controversy, but, I believe, comes closest to finding that elusive and undefined concept called truth. 136 Of course Facher can be both accurate and facile at the same time. His interest is that we see the outcome as fair even if his client escapes responsibility for the deaths of innocent people and the illness of others. Desired ends drive the process. VI. Legal, Political, Religious and Revealed Truth in the Context of Roe v. Wade Roe v. Wade provides an example of the distinctions between legal, political and religious truth. One interesting lesson from Roe is that in fundamental and transformative cases involving core values, law, politics and some version of religious beliefs we have chosen to take as true are so entwined in a Gordian knot that it is difficult for us to think in ways that separate the strands. Nor is it likely to be desirable to do so. Roe also reveals that legal, political and religious truths are phenomena of an entirely different kind. We need to better understand the positive and negative implications of the assertion that truth is socially constructed. This applies to both political truth and its manifestation through law. Aristotle warned that law has the ability to command only by the force of habit. He argued that it is unwise to change law too quickly or too obviously. 137 Given the difficulties we admittedly face with a thinning of the sourcing and independent authenticity of basic institutions and shared social values, it seems obvious that fundamental and obvious changes should be done carefully. Changes are also better if they occur within the context of the values to which we still give some degree of allegiance. This was not done in the Roe v. Wade decision, but the same principle that we should be very careful not to change law too rapidly also comes in to play in any decision to alter the Courts existing decision in Roe. This does not mean it cannot be changed but does mean that any changes should be done very carefully and with wisdom rather than obvious political motivations. Otherwise the Courts inherent and essential veil of authenticity is shredded.

135 Jerome Facher, The Power of Procedure: Reflections on A Civil Action, in A Documentary Companion to A Civil Action xvii (Lewis Grossman & Robert Vaughan eds., 1999). 136 Facher, The Power of Procedure: Reflections on A Civil Action, id. 137 See Aristotle and his discussion of the critical function of habit in our willingness to obey and respect the law, supra, n. 6.


While we have always had disputing factions that needed to be appeased, cajoled or intimidated through the political process, the factions have proliferated to the point of political incoherence. This also suggests a different or added role for the Supreme Court, albeit one that the Court should never acknowledge. In a fragmented system where the other institutions are suspect and increasingly held in contempt, the center must be held together by the Court. In the emergent political context the Court offers a form of coherence, call it social glue if you will, that provides some degree of connective integrity to a system that otherwise risks further devolution into a cultural guerrilla war. Roe reveals that virtually all the analysis offered by judges is predicated on matters of choice, and not only choice, but rhetorical choice that seeks to persuade us of the authenticity of the judges position. The judicial opinions in Roe (these include Blackmun, Stewart, Douglas, Burger, with White and Rehnquist dissenting from the majority) are mixtures of patched together preferences and individual opinions buttressed with conveniently congruent choices and interpretations. All elements of these opinions are aimed at supporting positions. This has little to do with scientific, philosophic or mathematical conceptions of truth that are based in rigorous formal processes and evidence. In the noncumulative realm of which law is a vital part, we possess some greater ability to design and construct edifices of truth. Law is an integral part of the architecture by which these edifices are designed, implemented and defended. Sometimes law plays a role in the maintenance of the social and political architecture. Sometimes law is the instrument of demolition or redesign. For better or worse, we are at the mercy of periodic design changes and style preferences. Roe v. Wade, for example, has proved to be a shift in a legal rule that has generated a significant redesign of American society, realigning its culture, political affiliations, and legal relations between levels of government. Even here, not all parts of the system are the same. We need to ask what kinds of structures exist that might be thought of as deep constructs that provide the natural order for humans in community. I suspect that Roe, with its considerations of the nature of life; when life is said to begin morally, legally, religiously and scientifically, who controls the choice about terminating a biological entity that left alone will proceed to become like us, the nature of personness, and the existence of natural rights of individuals outside the power of the state to control either at all or without compelling reasons, is socially problematic because it engages the deep constructs of our society. It defines who we are. Roe is not really about the termination of life. We make death tradeoffs all the time. In areas such as national security and the use of military force, capital punishment, the health consequences of drugs and the acceptable casualties associated with various consumer products and other activities, we accept that death is a necessary and predictable element of the activity. We dont stage demonstrations and divide the social order as a consequence. Why is it that the choice of death over the development of life is so controversial in relation to abortion? Roe is less about state power than about the loss of our innocence. The fact is most likely due to the combination of the image of the blameless unborn child with the perceived moral and religious irresponsibility of the


woman and her refusal to accept accountability for actions that predictably led to the pregnancy. An Outsiders Questions Concerning Roe v. Wade In seeking to understand just how ephemeral the Majority opinion in Roe is from the perspective of various approaches to legal, political and religious and revealed forms of truth assume an interstellar alien visiting from the Antares star system was hired as a consultant (It) to render advice about abortion in America in advance of the Courts decision in Roe v. Wade. Although having no training in our legal or political system, nor having any gender characteristics of relevance to ours or any religious beliefs of a kind that might favor one side of the abortion dispute over another, this being was quite intelligent and highly empathic. To this consultant the Court provided all the materials produced over the past several generations relating to all facets of the controversy. The Justices then empowered our alien entity to determine the kinds of questions that the Court should ask and answer in an effort to have a fair, balanced and honest discourse about abortion of a kind that would provide the foundation for its decision. After spending several minutes reviewing the materials (I said It was highly intelligent) It submitted a series of questions to be answered before going further. These questions are: When does life begin? What constitutes a person? When does a person begin to exist? What value do you place on life? What value do you place on death? Under what conditions does a person have the power to subordinate the power of the group? Under what conditions does the group have the power to subordinate the person? What effects on your social community does the power to terminate an impregnated state have? You allow death in so many other instances that I wonder why some of you seem to care so much about not allowing it in this area? From where come your numerous beliefs about natural law, natural rights, or your power to perceive the existence of what you call a divine being?


From where come your beliefs about your ability to perceive at all the messages and intent of the divine being some of you claim exists and speaks to you? From where come your beliefs that if a divine entity exists and even sends you messages, that a species such as yours can perceive those messages with any accuracy? Once a woman has been impregnated what occurs in the normal course of events if the process is not interrupted? Do you really allow what you referred to as late term terminations of an impregnated state? Freedom of choice as a philosophical matter seems to be related to the idea of human flourishing and even perfectibility. Has it had that effect on the people who have been given the power to choose in this area? How many pregnancy terminations have occurred in America since the Roe decision? If a woman does not want to have a child, why does she initiate the process of having one in the first place? I understand the criterion of a physician making a recommendation for termination in a situation where the womans life is threatened by complications or other health reasons, or where there are serious health risks even though they arent life threatening to the woman, but what does it mean that emotional or psychological risks can be used to justify the termination? Is the community prepared to accept the responsibility of taking care of a child if one is born to a woman who otherwise might want to terminate her impregnated state? Are the social conditions that existed at the time of Roe v. Wade the same today or have they changed in ways that empower women to not be what you called in your earlier writings a mans chattel? What balance do you draw between individual rights and individual responsibilities? Do humans have inalienable rights and inalienable responsibilities or just inalienable rights? Why do you call what is inside the impregnated woman a fetus? What is law and from where does it come? 43

Who has the power and authority to make this thing you call law?

With very few exceptions the Court responded that it could not answer these questions based on any evidential criteria on which the Justices, their clerks, the lawyers, philosophers, scientists, medical profession, religious leaders were able to agree. Hearing that, It threw up what passed for Its hands, returned the consulting advance, and left for home, vowing to have Earth placed on the galaxys Do Not Visit list. Deciding he knew the answers to the questions that mattered, Justice Blackmun decided to ignore Its unseemly temper tantrum and go ahead with writing the Roe v. Wade opinion anyhow. Justice Blackmuns Answers to the Outsiders Questions As I have tried to make clear throughout this essay, it should not be thought that I am railing against abortion. My point is that Blackmuns analysis is thin. Its primary characteristic is that it is rhetoric, aimed at justifying the conclusion that had been reached concerning abortion by a majority of the Court. The opinion is in some ways dishonest, at least if we are talking about truth, legal or otherwise. The decision nonetheless has the force of law given its authoritative source. But it lacks the precision, data and substance of quality decision-making based on legal standards. Time and again Blackmun makes interpretational leaps of faith of the kind done by an advocate attempting to persuade an audience. The prior Supreme Court cases Blackmun cited to support his propositions require a stretch to consider them as authoritative support for the various propositions with which they are linked. It is hard to avoid concluding that Roe v. Wade is a political decision much more than a legal decision. But that fact does not render Roe illegitimate. This is because an increasingly importantbut dangerousrole of the Supreme Court is articulating political philosophy and even policy of a kind that is beyond the authority of ordinary courts. 138 Blackmuns opinion included historical analysis of medical and philosophical treatment of abortion dating back to the early Greeks. 139 Added to this was a review of the doctrinal
Not all will agree with this role of the Court. See, e.g., Scalias conclusion that: in a democracy, it is not the function of law to establish any more social policy than what is fairly expressed by legislation, enacted through prescribed democratic procedures. It troubles Smith, but does not at all trouble mein fact, it pleases methat giving the words of the Constitution their normal meaning would expel from the domain of legal issues most of the constitutional disputes that capture our attention, such as Can a macho military educational institution dedicated to what is euphemistically called the adversative method admit only men? Is there a right to abortion? Or to the assistance of a physician in ending ones life? If we should read English as English, Smith bemoans, these questions would seemingly all have received the same answer: No law on that one. That is precisely the answer they should have received: The federal Constitution says nothing on these subjects, which are therefore left to be governed by state law. Scalia, review of Laws Quandary, supra, n. . 139 Ethicist Peter Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics (St Martins Griffin, New York 1994) offers a useful perspective on the controversy. Singer traces the history of abortion, includes religious thinking as well as the change in approach caused by advances in medical knowledge concerning when it might be said life begins. Although quite informative and I think balanced, Singers analysis does not resolve anything of consequence. He concludes (Unlocking the Abortion Deadlock pp. 100-105) that: To unlock the abortion deadlock, we have to turn our attention to the first premise of the argument against abortion, and ask: why is it wrong to take


and statutory history of abortion regulation in the U.S. He does this to create a historical context in law, medicine, philosophy and religion, presumably to establish a cultural ethos for his decision. His goal appears to have been aimed at challenging the premise that abortion has always been condemned or criminalized. 140 Presumably this is one reason he included Holmes Lochner dissent concerning shocking opinions. Following that portion of his analysis he wanders through the ambiguities of constitutional decisions relating to privacy and liberty. This includes consideration of the existence of natural human rights existing outside of and pre-existing government in a state of nature. Blackmuns interpretation is grounded on a kind of natural law regarding innate human rights. He does this in the context of womens natural rights and marital and other intimacy rights. Although not done particularly well, Blackmuns Roe opinion is an essay on natural rights and natural law. Blackmun summarizes Roes legal position as one in which she claims: [T]he Texas statutes improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal liberty embodied in the Fourteenth Amendments Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); id., at 460 (White, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U. S., at 486 (Goldberg, J., concurring). 141 The dissents of Justices Rehnquist and White were grounded in legal doctrines of standing, the existence of a case or controversy, and the lack of wisdom in applying the compelling state interest test of the Fourteenth Amendment outside the boundaries of the Equal Protection Clause and incorporating it into the Due Process Clause. As Rehnquist suggests, applying the compelling state interest test in this situation introduced substantive due process considerations into the subsequent review of state actions on regulating abortion. This meant that every attempt by states to regulate abortion after Roe v. Wade would be second guessed and that the legal situation more confused than it was prior to the Roe decision. Rehnquist also differed with Blackmun over how to interpret the historical information regarding how American states chose to regulate abortion. It was not primarily a dispute about historical fact but different interpretations of the same set of facts, at least as applied to the status of abortion in America. Justice White was concerned with what he considered an almost absolute lack of control over the choice to have an abortion that he
human life? The key to a resolution of the whole abortion debate is the recognition that it is both possible and necessary to question this first premise. What, in the end, is so special about the fact that a life is human? Id, at105. He is correct in identifying the critical issue, and absolutely nave in failing to understand that it is precisely that issue on which we will be unyielding. 140 Albert Schweitzer challenged the application of history to our unique context, arguing: no historical analogy can tell us much. The past has, no doubt, seen the struggle of the free-thinking individual against the fettered spirit of a whole society, but the problem has never presented itself on the scale on which it does to-day, because the fettering of the collective spirit by modern organizations, [by] modern unreflectiveness, and [by] modern popular passions, is a phenomenon without precedent in history. Quoted in Erich Fromm, The Sane Society 201, 202 (1955).

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saw emerging from the Courts decision. He also saw the decision as an offense to the system of federalism and of a lack of respect for state power. These very real differences suggest that when using the term truth we need to ask what kind of truth is involved, in what dimension, and for what purpose. How can we say Blackmuns data, reasoning and conclusions were true or not? Because they were contained in a majority opinion of the Supreme Court are undeniably authoritative. This means that in the American system Roes majority stated what the law would now be, and this statement was backed by implicit force and other forms of sanctions if it were not followed. But authoritative is not the same as true, except that in an entirely positive law system the two may be identical in the sense that one can say it is true that in the United States since 1973 the right to an abortion grounded on an implied right of privacy is Choices are inevitable. The question is the quality of the evidence, logic and method on which the choice is based or purportedly based. I say purportedly because in an authoritative system such as law in which the Supreme Court is ultimate arbiter and there is, practically, no one to overrule the decision, there will be situations where the Court can offer a flawed decision that nonetheless will be seen as good enough for purposes of legitimacy and the application of systemic power. 142 A single paragraph has long seemed to me to capture the fact of choice rather than evidence as the base of the majority opinion in Roe v. Wade. Justice Blackmun admits: We forthwith acknowledge our awareness of the sensitive and emotional nature of the abortion controversy, of the vigorous opposing views, even among physicians, and of the deep and seemingly absolute convictions that the subject inspires. Ones philosophy, ones experiences, ones exposure to the raw edges of human existence, ones religious training, ones attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color ones thinking and conclusions about abortion. 143 As if those factors of great uncertainty were not enough, he goes on to state that: population growth, pollution, poverty, and racial overtones tend to complicate and not to simplify the problem. 144 Although we could take these words as signifying that Blackmun is exploring the philosophical, political, moral and religious dimensions of abortion and its attendant consequences, I see his words as a rhetoricians stratagem. After softening his listeners by describing the inordinate complexity of the task faced by the Court, Blackmun continues: Our task is to resolve the issue by constitutional measurement, free of emotion and of predilection. We seek earnestly to do this, and, because we do, we [p117] have inquired into, and in this opinion place some emphasis upon, medical and medicallegal history and what that history reveals about mans attitudes toward the abortion procedure over the centuries.
Lawrence Friedman concludes in American Law, supra, n. , that: in complex societies custom is far too flabby to do all the workto run the machinery of order. Law carries a powerful stick: the threat of force. This is the fist inside the velvet glove . 257.
143 144 142

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We bear in mind, too, Mr. Justice Holmes admonition in his now-vindicated dissent in Lochner v. New York, 198 U. S. 45, 76 (1905): [The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. 145 These qualifications of the terms of the analysis reveal that Blackmun understood the Supreme Court had made a decision in Roe about which there would be great controversy. In writing the majority opinion he was functioning as an advocate seeking to justify the Courts volatile decision. Coupled with his invocation of Holmes famous Lochner dissent, he sought to inject a sense of uncertainty into those opposed to abortion while providing a colorable historical argument to those in support of abortion. Blackmun sought to achieve this by a lengthy historical analysis, noting that the subject matter of the Courts decision involved an issue for which scientific, political, medical, historical and other forms of proof were sketchy or ephemeral. At virtually every level of Blackmuns opinion the thinness and inadequacy of his underlying data are evident. So is the speculative nature of his interpretations based on those data. Lawyers are accustomed to setting forth the terms of our initial premises and, having disposed of these preliminary matters by assumption, build a chain of justifying logic as if the assumptions were true. This is what Blackmun did. Normally this form of reasoning from assumed facts and conclusions doesnt matter beyond the finite boundaries of a case because few cases involve transformative issues. As Bacon observes, judicial decisions are inherently and appropriately limited to the immediate cause. He suggests this is because: It were infinite for the law to judge the causes of causes, and their impulsions one of another: therefore it contenteth itself with the immediate cause; and judgeth of acts by that, without looking to any further degree. 146 A fair reading of Roe supports the conclusion that even though the Supreme Court is not supposed to render advisory opinions Roe v. Wade may have been one. The advisory nature of Roe begins with the factual claims Blackmun used to identify whether a case or controversy exists. Blackmun observes, for example: Roe alleged that she was unmarried and pregnant; and that she could not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. 147 He went on to say: Despite the use of the pseudonym, no suggestion is made that Roe is a fictitious person. For purposes of her case, we accept as true, and as established, her existence; her pregnant state, as of the inception of her suit in March 1970 and as late as May 21 of that year when she filed an alias affidavit with the District Court; and her inability to obtain a legal abortion in Texas. 148

145 146 147

Lochner v. New York, 198 U. S. 45, 76 (1905).

Francis Bacon, The Maxims of the Law, Regula I, supra, n .

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The fact that she was pregnant at the appropriate time required for standing to properly be found is a point questioned by Justice Rehnquist. Even if she were pregnant at some point during the pendency of the case Rehnquist argued it was irrelevant for the purposes of the Courts decision because her claim to pregnancy did not include the allegation that she was in her first trimester of pregnancy when she filed the suit. This was considered relevant to Rehnquist because the Roe Courts decision allowed state control to significant degrees subsequent to the first trimester. He makes the point in the following manner:
The Courts opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. The Courts statement of facts in this case makes clear, however, that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed. 149

Justice Blackmuns Historical Truth Blackmun begins: we feel it desirable briefly to survey, in several aspects, the history of abortion, for such insight as that history may afford us, and then to examine the state purposes and interests behind the criminal abortion laws. 150 He makes the rhetorical point that: It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant womans life, are not of ancient or even of commonlaw origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century. 151 Blackmun is ordering his points with an eye to those more likely to persuade us as to the integrity of his arguments. But Blackmun mostly piles speculation upon speculation. While we might think we have been told something important, the fact is that there is no real clarity to the historical portion of Blackmuns opinion. If Blackmuns purpose is to bring clarity through his historical analysis he fails in that task. If, however, his purpose is that of the judicial advocate intent on pulling the teeth of those who might oppose the legitimacy of the Courts ruling in Roe, then projecting an overall sense of indeterminacy and uncertainty as to the historical treatment of abortion and its culturally-bound nature most likely has been achieved. The tone of Blackmuns observations concerning historical attitudes seems intended to suggest that the loosening of abortion standards the Court provides in Roe is justifiable because abortion has either not been banned or criminalized at all times throughout our history. In presenting this argument he extends our history to the ancient Persians,
149 150

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Greeks and Romans, moves on to English common law, a 1967UK statute legalizing abortion, and then makes a lightning quick jaunt through several hundred years of American colonial law followed by post-independence treatment of U.S. common and state statutory law. The intent of the historical analysis is clear, even though the product is murky. Blackmun argues that strict abortion laws in the U.S. are little more than a century old and that in 1973 attitudes had changed to the point that Roe was a logical outcome of shifting social values. Reliance on historical treatment of an issue cuts both ways. One unresolved question is what effect should be given historical facts even if clearly true or accurate. Another is how do we know when an historical interpretation is true? Each of these concerns is manifest in Blackmuns brief historical treatment of abortion. Even if true, all historical facts are not dispositive or relevant to current conditions. This is particularly so when we return to the idea that truth is socially constructed for a specific context, is a matter of political choice, and reflects dominant power relationships that may be inapplicable at different times and in divergent cultures. Historical truth may be morally or politically unacceptable outside its specific context. It may offer a model of behavior or represent a belief system to be scorned and rejected rather than used to justify present behavior. For example, Genghis Khan is said to have intimidated fortified cities to which he laid siege by executing anyone who did not immediately surrender and piling as many as 100,000 severed heads outside the gates. If true, this historical fact would be an effective strategy for encouraging the capitulation of the next city in line but it is not one that would be considered generally acceptable at this moment in our development. Even if history does potentially provide information as to what was done or considered acceptable at another point in time or in a different culture, how do we determine the truth of that history. Assuming we agree on the authenticity of particular historical interpretations, what part of that historical truth, if any, should we adopt? Nor is there necessarily any clear or obvious legitimacy to even the most painstaking historical analysis about cultural values, attitudes, causes and consequences of events. Historical analysis involves a variety of methods and some of the interpretational approaches are politically driven. One historian may offer an opinion about historical conditions, but that does not necessarily say anything about the weight that ought to be assigned that opinion. In that regard it is useful to examine what is offered in Blackmuns analysis. Justice Blackmun discusses several historical contexts. These include: 1. Ancient attitudes, 2. the Hippocratic Oath, 3. the common law, 4. British statutes, and 5. American common and state statutory laws. The result of Blackmuns historical recitation is not satisfying in terms of informing us about what actually existed. Even if it were accurate it does not resolve the issue of what choices we should make. This attitudinal pastiche offers little in terms of the truth of ancient attitudes toward abortion. As to Ancient attitudes he admits, for example:


These are not capable of precise determination. We are told that at the time of the Persian Empire abortifacients were known and that criminal abortions were severely punished.(8) We are also told, however, that abortion was practiced in Greek times as well as in the Roman Era,(9) and that it was resorted to without scruple.(10) The Ephesian, Soranos, often described as the greatest of the ancient gynecologists, appears to have been generally opposed to Romes prevailing free-abortion practices. He found it necessary to think first of the life of the mother, and he resorted to abortion when, upon this standard, he felt the procedure advisable.(11) Greek and Roman law afforded little protection to the unborn. If abortion was prosecuted in some places, it seems to have been based on a concept of a violation of the fathers right to his offspring. Ancient religion did not bar abortion. (12) [emphasis added] 152

What can we take from this rendition? As the italicized enhancements indicate, Blackmun admits that ancient attitudes on this issue cannot be precisely determined. He shifts to a he says, she says mode of analysis in which the Persians may have taken one position and the Greeks and Romans another. Given that we trace much of our philosophical history to the Greeks and some to the Romans is this intended to mean we should give whatever they seem to have done greater credence in terms of our own behavior? But even here Blackmun engages in rampant speculation. Blackmun indicates the physician Soranos appears to have been opposed to abortion, but added that Greek and Roman law afforded little protection to the unborn. What does this mean? What protection was afforded the unborn? Is Blackmun taking a compassionate pro-feminist position when he states that when prosecutions did occur they appeared to be based on the fathers rights? Is this signaling a conclusion that Roe is also a denial of the rights of fathers along with a conclusion that history is filled with an inappropriate preference for the right of men to control women as chattel? 153 Perhaps recognizing the weakness of the initial part of his analysis, Blackmun goes outside the parties briefs presumably in an effort to weaken what appears to be a critical linchpin of the anti-abortion position. He invokes and then trashes the medical professions Hippocratic Oath. 154 As to the Hippocratic Oath, Blackmun admits: [the

152 153

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Senator Feinstein stated: For me one of the most important issues that needs to be addressed by you is the constitutional right to privacy. I am concerned about a trend on the Court to limit this right and thereby to curtail the autonomy that we have fought for and achievedin this case, over just simply controlling our reproductive system, rather than having some politicians do it for us. It would be very difficult for me to vote to confirm someone who I knew would overturn Roe v. Wade because I rememberand many of the young women here do notwhat it was like when abortion was illegal in America. How the Court decides future cases could determine whether both the beginning-of-life and the end-of-life decisions remain private or whether individuals could be subject to Government intrusion or perhaps the risk of prison. Statement of Hon. Dianne Feinstein, A U.S. Senator from the State of California. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States, Hearing Before the Committee on the Judiciary United States Senate, One Hundred Ninth Congress, First Session, September 12-15, 2005, Serial J-109-37 (GPO 2005), p. 26, at 28. 154 In Gonzales v. Oregon, 546 U. S. __ (2006) (the Oregon Death With Dignity case) Justice Scalia uses the Hippocratic Oath in his dissent against the Majoritys allowing physician assisted suicide. Scalia argues: virtually every medical authority from Hippocrates to the current American Medical Association (AMA) confirms that assisting suicide has seldom or never been viewed as a form of prevention, cure, or alleviation of disease, and (even more so) that assisting suicide is not a legitimate branch of that science and art. See OLC Memo, App. to Pet. for Cert.


Oath] represents the apex of the development of strict ethical concepts in medicine, and its influence endures to this day. Why did not the authority of Hippocrates dissuade abortion practice in his time and that of Rome? 155 He provides an answer that is less than satisfactory.
The late Dr. Edelstein provides us with a theory:(16) [It is that] The Oath was not uncontested even in Hippocrates day; only the Pythagorean school of philosophers frowned upon the related act of suicide. Most Greek thinkers, on the other hand, commended abortion, at least prior to viability. See Plato, Republic, V, 461; Aristotle, Politics, VII, 1335b 25. For the Pythagoreans, however, it was a matter of dogma. For them the embryo was animate from the moment of conception, and abortion meant destruction of a living being. The abortion clause of the Oath, therefore, echoes Pythagorean doctrines, [p132] and [i]n no other stratum of Greek opinion were such views held or proposed in the same spirit of uncompromising austerity.(17) 156

This does not say such views were not held, only that they were not held to the same uncompromising extent. The fact that a dominant statement of ethics setting forth the highest principles on which it is argued one should ground behavior was not uncontested merely sets forth an inevitable social reality in virtually any culture. Blackmun returns to his reliance on Edelsteins theorizing and observes:
Dr. Edelstein then concludes that the Oath originated in a group representing only a small segment of Greek opinion and that it certainly was not accepted by all ancient physicians. He points out that medical writings down to Galen (A. D. 130-200) give evidence of the violation of almost every one of its injunctions.(18) But with the end of antiquity a decided change took place. Resistance against suicide and against abortion became common. The Oath came to be popular. The emerging teachings of Christianity were in agreement with the Pythagorean ethic. The Oath became the nucleus of all medical ethics and was applauded as the embodiment of truth. 157 Thus, suggests Dr. Edelstein, it is a Pythagorean manifesto and not the expression of an absolute standard of medical conduct.(19) 158

Blackmun relies on this history to conclude: This, it seems to us, is a satisfactory and acceptable explanation of the Hippocratic Oaths apparent rigidity. 159 Here Blackmun seems to be playing a negative version of the Christian card, presumably recognizing that religious groups represent the greatest organized source of opposition to the Courts
113a130a. Indeed, the AMA has determined that [p]hysician-assisted suicide is fundamentally incompatible with the physicians role as a healer. Washington v. Glucksberg, 521 U.S. 702, 731 (1997).
155 156 157

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Ludwig Edelstein, The Hippocratic Oath: Text, Translation, and Interpretation, Baltimore: Johns Hopkins Press, 1943. I will neither give a deadly drug to anybody who asked for it, nor will I make a suggestion to this effect. Similarly I will not give to a woman an abortive remedy. In purity and holiness I will guard my life and my art. [T]he oath has been modified many times over the centuries to reflect the moral climate of successive societies. Few oaths now mention a deity, most avoid the abortion issue, and many omit the prohibition of sexual contact with patients although this lapse by physicians is condemned by licensing authorities. The Oath was translated into Latin and Arabic and later adopted by Christianity. Surprisingly the Hippocratic Oath was hardly used at medical schools until the past ten years; in 1928 less than a quarter of schools used it. There are now many versions used- some schools have allowed students to write their own. Since the Second World War the Oath has reflected the Declaration of Geneva and the Nuremburg Code 1948. Dr. P. Warren, Professor, Faculty of Medicine, University of Manitoba, , Hippocrates on the Web, MH3. The Development of a Profession. Visited 1/30/06.
158 159

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decision. If he could demonstrate that what those who opposed abortion on religious grounds was based not on God but was adapted from a pagan Greek philosophical group Blackmun might have hoped that the Roe decision would be more accepted. He attacks the Hippocratic Oath as being the dogma of the Pythagorean sect in a way that sounds as if he is speaking of a bizarre cult. In doing this he makes it seem as if those who were against abortion in that period are at best a minority view representing a political or ethical choice rather than one achieved through divine revelation. He then argues that minority view was incorporated into the attitudes of Christian dogma. Pulling the fangs from those who argue that life begins at conception is integral to Blackmuns decision. By first describing that belief as Pythagorean dogma that was accepted whole-cloth into Christian dogma, he seeks to weaken the positions of those share that belief by the argument that the life begins at conception position isnt one received from God but from Pythagorean philosophers who were not even representative of their society. Justice Blackmun then shifts from ancient attitudes to a quick review of abortion under English common law. He adds a 1967 British statute legalizing abortion in the UK. He follows that with a discussion of the common law and state statutory context in the U.S. There are numerous factual statements relating to legal commentators, judicial opinions, and the shifting of approach in state statutes. Blackmun offers the following explanation concerning the British common law treatment of abortion.
It is undisputed that at common law, abortion performed before quickening-- the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy(20)--was not an indictable offense.(21) The absence [p133] of a common-law crime for pre-quickening abortion appears to have developed from a confluence of earlier philosophical, theological, and civil and canon law concepts of when life begins [emphasis added]. These disciplines variously approached the question in terms of the point at which the embryo or fetus became formed or recognizably human, or in terms of when a person came into being, that is, infused with a soul or animated. A loose consensus evolved in early English law that these events occurred at some point between conception and live birth.(22) This was mediate animation. Although [p134] Christian theology and the canon law came to fix the point of animation at 40 days for a male and 80 days for a female, a view that persisted until the l9th century, there was otherwise little agreement about the precise time of formation or animation. There was agreement, however, that prior to this point the fetus was to be regarded as part of the mother, and its destruction, therefore, was not homicide. Due to continued uncertainty about the precise time when animation occurred, to the lack of any empirical basis for the 40- 80-day view, and perhaps to Aquinas definition of movement as one of the two first principles of life, Bracton focused upon quickening as the critical point. The significance of quickening was echoed by later common-law scholars and found its way into the received common law in this country. 160 [emphasis added]

The impression once again is of imprecision, uncertainty, and a series of choices made according to the preferences of powerful institutions of religion, politics and laws. Once again it does not require a close reading to see that Blackmun is building his case on the ability to reject much of the thinking about life and personness because it derived from


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religious beliefs, including belief in a soul and a God. It is as if he is preparing to fully separate not only church and state but society from its sources of moral value. This cultural shift was further buttressed by the fact that the UK enacted a statute in 1967 expanding a womans right to an abortion in Great Britain. 161 The sponsor of the original 1967 legislation recently caused a furor when he proposed modifications to the UK law. In an ongoing debate in the UK, David Steele has argued that the abortion legislation should be amended based on new medical knowledge and capability that moved the point of viability to an earlier point in a womans pregnancy. 162 Blackmun did not engage in the discussion of his version of abortion history in Persia, Greece, Rome, common law England, and the present day UK simply to perform an academic exercise. His historical treatment was offered as relevant to how we should treat abortion in the U.S and so we will shift our analysis to that context. As to the U.S., Blackmun observed that: Gradually, in the middle and late l9th century the quickening distinction disappeared from the statutory law of most States and the degree of the offense and the penalties were increased. By the end of the 1950s, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother. 163 While there were differences among the state laws it is clear that little more than a decade before the Courts 1973 decision in Roe v. Wade that most states criminalized abortion. It is equally clear there was no popular groundswell in 1973 to abandon the dominant position. Blackmuns analysis seems odd at this point. He obviously concludes that the message to be taken from the claimed fact that states had increasingly banned abortion over approximately a century leading up to the Courts decision in Roe is that the states had done something wrong in passing those laws. It arguably stands for the proposition that if I once had a right to do something legitimate democratic processes are wrong if they restrict or eliminate that right or power. Except in the most basic areas that could not be true. If it were, the power of government and of a democratic polity would be rendered invalid in the face of history. What does this mean in the face of periods when cowboys roamed unfenced range, and when marijuana and laudanum were legal?

This is the Abortion Act of 1967, 15 & 16 Eliz. 2, c. 87. The Act permits a licensed physician to perform an abortion where two other licensed physicians agree (a) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, or of injury to the physical or mental health of the pregnant woman or any existing children of her family, greater than if the pregnancy were terminated, or (b) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as [p138] to be seriously handicapped. The Act also provides that, in making this determination, account may be taken of the pregnant womans actual or reasonably foreseeable environment. It also permits a physician, without the concurrence of others, to terminate a pregnancy where he is of the good-faith opinion that the abortion is immediately necessary to save the life or to prevent grave permanent injury to the physical or mental health of the pregnant woman. 162 On the issue of the impact of advancing medical knowledge on our understanding of the processes of pregnancy, the point where an unborn biological entity begins to acquire characteristics we associate with babies and so forth, see, Peter Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics, supra, n. . Singer explains that medical advances were one of the main reasons the Catholic Church changed its position a century or so ago and moved away from reliance on the idea of quickening as an important point in development. 163 Roe v. Wade,



If Roe is to represent a valid exercise of judicial power it must therefore rest on grounds well beyond those provided by Blackmuns historical analysis. That foundation must be provided by the joining of the fundamental principles of liberty and privacy. Given the values embedded in what Roe authorizes a woman to do regarding the termination of a biological entity that left alone becomes us a powerful trump is required if there is to be a chance of the majoritys opinion being taken as authentic and deserving of respect. Blackmun contrasts this trend with the historical situation brought out in the first part of his analysis.
It is apparent that at common law, at the time of the adoption of our Constitution, and throughout the major portion of the l9th century, abortion was viewed with less disfavor than under most American statutes currently in effect. Phrasing it another way, a woman enjoyed a substantially broader right to terminate a pregnancy than she does in most States today. At least with respect to the early stage of pregnancy, and very possibly without such a limitation, the opportunity [p141] to make this choice was present in this country well into the l9th century. Even later, the law continued for some time to treat less punitively an abortion procured in early pregnancy. 164

This, of course, proves nothing. Blackmuns analysis has substantial gaps. At its base he could just as easily traced the history of capital punishment for minor crimes in English common law and because the penalties were severe, use that as a justification for the death penalty today being imposed for stealing a loaf of bread. The combination of sketchy history, the 1967 UK abortion statute, and a pattern of some statutory loosening in Americas state jurisdictions seems deliberately woven to create the sense that change is modern, necessary and appropriate. Blackmun conveniently failed to consider in his historical analysis of abortion is that through most of our legal and political history women had limited rights and generally were owned by their families to the extent of being bartered in marriage arrangements and the chattel of their husbands once married. 165 Women were property and not legally allowed to own property. Any earnings they might produce were owned by their husbands. If historical cultures allowed abortions as an overt right it is far more rational to conclude that the right to an abortion was the husbands not the propertized womans. Of course we all accept this was an unjust and intolerable situation. But my point is in reaction to the claim that history granted women the legal right to an abortion as a matter of their free choice. Given what we know about the domination of women by men this position is largely untenable. We may choose to claim the history is different but that would be even less accurate than Blackmuns historical narrative.166
Roe v. Wade, In Athens, the status of voting citizen did not include women, barbarians or aliens, or slaves. See, The Politics of Aristotle, Translated and introduced by Peter L. Phillips Simpson (North Carolina 1997).
165 166 Carol Gilligan, In A Different Voice: Psychological Theory and Womens Development.(Harvard, 1982, 1993). 1993 Preface by Gilligan. In referring to Roe v. Wade, at ix, Gilligan makes the point that: When the highest court made it legal for a woman to speak for herself and awarded women the deciding voice in a complex matter of relationship which involved responsibility for life and death, many women became aware of the strength of an internal voice which was interfering with their ability to speak. That internal or internalized voice told a woman that it would be selfish to bring her voice into relationships, that perhaps she did not know what she really wanted, or that her experience was not a reliable guide in thinking about what to do. Women often sensed that it was 164


Blackmuns Truths of Privacy, Liberty and Freedom of Choice The scene is set for the privacy/liberty analysis that is central to Roe. These concepts are clearly contextual in the sense that they involve choices about human nature, social order, political philosophy, and the balance to be struck between individual and community. None of these concepts is a matter of empirical truth as opposed to being based on belief systems and choice. What are the core beliefs and choices that rise to the level of legitimacy capable of empowering a woman to make a choice as fundamental as that of terminating the dependent biological entity within her? Aristotle offered the idea of human flourishing as the purpose of human society. 167 This placed the individual at the purposive center of the political community in the sense that the responsibility of the community involved creating a cultural context sufficient to allow the individual members of society to strive to attain their highest qualitative development. I take the Roe majoritys empowering of women to make the abortion choice an important element of the individual womans human flourishing, and a determination that without the power to make this choice the womans ability to flourish would be inhibited. Impliedly, this is a choice about the proper functions of a community, and the primacy of individuals being free to make the choices that they feel, rightly or wrongly, protect or advance the choices about the path they must follow to achieve their highest state of being. It is intriguing that among the religious opponents of abortion, the desire that an individual attain the highest state of grace possible is also at the center of the antiabortion position. The difference is that in a system where truths are received rather than discovered an individuals state of grace is achieved through faith and revealed insight, not from personal self-centered choices based on individual freedom. The mindsets are as fundamentally different as those faced by Eve in deciding whether to partake of the forbidden fruit. Blackmuns analysis on privacy and liberty is as thin as his historical treatment of abortion. He begins this line of reasoning by admitting: The Constitution does not explicitly mention any right of privacy. 168 Obviously we are thrust into a situation where it is equally arguable that if the Constitution is silent it should be interpreted as a
dangerous to say or even to know what they wanted or thoughtupsetting to others and therefore carrying with it the threat of abandonment or retaliation. 167 We must presume that at its core the argument in favor of a womans almost complete power to terminate a pregnancy is grounded on the idea of human flourishing, or the focused effort to be all you can be. Aristotles idea of human flourishing described in the Nichomachean Ethics is one where: Aristotle teaches that each mans life has a purpose and that the function of ones life is to attain that purpose. He explains that the purpose of life is earthly happiness or flourishing that can be achieved via reason and the acquisition of virtue. Articulating an explicit and clear understanding of the end toward which a persons life aims, Aristotle states that each human being should use his abilities to their fullest potential and should obtain happiness and enjoyment through the exercise of their realized capacities. He contends that human achievements are animated by purpose and autonomy and that people should take pride in being excellent at what they do. According to Aristotle, human beings have a natural desire and capacity to know and understand the truth, to pursue moral excellence, and to instantiate their ideals in the world through action. See, Edward W.Younkins, Aristotle, Human Flourishing, and the Limited State, Le Quebecois Libre, Montreal, November 22, 2003 / No 133. Visited 2/28/06.

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document that is inapplicable to this situation, or that alternatively, the Constitution is an adaptive and organic document that changes its content and application as society changes. Blackmun adds that: In a line of decisions going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U. S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in [various locations in the language of the Constitution]. 169 He continues: These decisions make it clear that only personal rights that can be deemed fundamental or implicit in the concept of ordered liberty, are included in this guarantee of personal privacy. 170 This lofty rhetoric represents a set of choices incorporating aspects of natural law, natural rights, and political philosophy. But they are artificial constructs, not empirical truths. Yet, they are choices based on a limited set of options available to us that have been formed and forged by several thousand years of culture, education, experience and political philosophy. These beliefs are also most likely inextricable from the collage of values that we have associated culturally with the Judeo-Christian tradition. 171 Blackmun also concludes that: the right has some extension to activities relating to marriage, procreation, contraception, family relationships, and child rearing and education. 172 This language is of more importance than generally assumed. Blackmun refers to marriage, procreation, and family relationships. The emphasis is not only on the individual right of women to choose but places the family at the center of the policies that allow the protected zone staked out by privacy and liberty. This is intriguing to the extent that Samuel Alito is considered as anti-abortion due to his opinion that a state could require a wife to consult her husband prior to undergoing an abortion procedure. 173 If, as in Griswold, the privacy right exists for the protection of family


Blackmun suggests that these include: the First Amendment, Stanley v. Georgia, 394 U. S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U. S. 1, 8-9 (1968), Katz v. United States, 389 U. S. 347, 350 (1967), Boyd v. United States, 116 U. S. 616 (1886), see Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U. S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U. S. 390, 399 (1923). 170 Citing Palko v. Connecticut, 302 U. S. 319, 325 (1937). 171 Barnhizer, Prophets, Priests, and Power-Blockers, supra, n. . 172 Citing in sequence, Loving v. Virginia, 388 U. S. 1, 12 (1967); Skinner v. Oklahoma, 316 U. S. 535, 541-542 (1942); Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 [p153] (WHITE, J., concurring in result); Prince v. Massachusetts, 321 U. S.158, 166 (1944); Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925). 173 Alito dissented in Planned Parenthood of Southeastern Pennsylvania v. Casey (1991), a case involving the issue of a husbands right to be notified about his wifes intent to have an abortion. This is not inconsistent with Justice Blackmuns concerns in Roe concerning one justification for the Roe majoritys decision being the integrity of the family. This was reached by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).


choice and family intimacy rather than an incontestable trump card held solely by a woman then Blackmun could also be considered anti-abortion. Blackmun continues with his indeterminate analysis. He argues: This right of privacy, whether it be founded in the Fourteenth Amendments concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendments reservation of rights to the people, is broad enough to encompass a womans decision whether or not to terminate her pregnancy. 174 He then offers a menu of possible harms, using a strategy that one of my law school professors referred to as the parade of imaginary horrors. Such listings offer possibilities but possibilities are neither probabilities nor certainties. Nonetheless Blackmun warns:
The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation. 175

Blackmuns analysis presents the negative consequences that could be experienced by a woman denied an abortion. But his analysis is one-sided, both as to the woman and to the potential effects on the community. It ignores the purported benefits of having children as well as the potential negative impacts on women of having an abortion. Additional unexamined considerations include the consequences of the decision for families, and for our social community due to the collective moral impact of the abortion decision. Blackmun admits the privacy right is not absolute and concedes some state regulation is allowable as the pregnancy moves past the first trimester. He states:
At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with ones body as one pleases bears a close relationship to the right of privacy previously articulated in the Courts decisions. The Court has refused to recognize an unlimited right of this kind in the past. 176

This leads Blackmun to conclude: the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important

174 175 176

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Roe v. Wade, citing Jacobson v. Massachusetts, 197 U. S. 11 (1905) (vaccination); Buck v. Bell, 274 U. S. 200 (1927) (sterilization).


state interests in regulation. 177 The limits of the abortion right have been the subject of litigation since these words were uttered. Those limits explore the burden on the government to justify restrictions, including those that seek to require counseling, involve husbands, or inform parents when minors seek abortions. 178 Personness, Life and Viability By this time it is clear that Blackmun feels he has softened up the system sufficiently that he can move on to the core issues in the case. These matters involve when someone is a person whose rights are recognized and protected by law, and this leads to a discussion of quickening and viability. These are critical matters that relate to the legal, political and religious spheres. Beliefs about what constitutes the person depend on whether we are talking about law, politics or religion. These also relate to beliefs in the nature of life, how and when life is created, whether souls exist and if so when they are invested in the biological entity. Quickening and viability are attempts to capture the issue of when life begins and, for purposes of abortion, when we legally, politically or religiously want to say life begins. Although struggling through these concepts and selected definitions seems odd, they are efforts to reduce the reality of abortion to something more morally tolerable. The approaches taken to personness and life, through legal choices about the truth of when they exist and how they are defined are important for several reasons. One is suggested in the decision itself. If legal personness were extended to the pre-natal stage then this has significant practical implications for civil, criminal and constitutional law. Pre-natal personness would have a ripple effect requiring a great deal of adaptation within legal doctrines and the system of law. The compromise offered by Blackmun involves the choice he makes about the viability of a fetus. Even here there are rhetorical choices being made. One of the most basic choices is use of the dehumanized term fetus. If some other term had been selected our perception of what is being dealt with would have been altered. Words have important non-verbal meanings. Emotively a fetus is not a person, or even an almost person in the process of becoming, but a thing. We are able to make calculated decisions about things at a greater emotional and moral distance. This relates to the quickening/viability continuum. Quickening stands for the proposition that the biological fetus is demonstrably progressing and becoming active. Viability represents the idea that the biological entity has reached the point where it could survive as a person. There is an irony in the fact that pro-choice asserts the importance of the individual, and the right to trump community power. Casting the issue as one of freedom to choose tends to make it more palatable. But once we ask freedom to choose what the situation takes a twist.

177 178

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The numerous post-Roe cases are discussed by the Supreme Court in Planned Parenthood v. Casey, supra, n. .


The final part of the majority opinion attempts to deal with the concepts of what is a person and the related idea of when life begins. Perhaps nothing else is as useful to demonstrate the distinct approaches, forms and functions of legal, political and religious truth seeking because Blackmun makes a rhetoricians choice at every juncture where these matters are involved. Blackmun writes: The appellee and certain amici argue that the fetus is a person within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. 179 He admits: If this suggestion of personhood is established, the appellants case, of course, collapses, [p157] for the fetus right to life would then be guaranteed specifically by the Amendment. 180 Blackmuns analysis on this point is constricted. Rather than pursuing the question of what is a person within the language and meaning of the Fourteenth Amendment he could have gone directly at the question of what is a person. Again, however, his emphasis is on the language of fetus and fetal rather than the humanity of the entity developing within the woman. This technical term excludes consideration of the deeper nature of personness or choice of some other language that humanizes rather than dehumanizes the biological entity being carried within the woman. Rather than doing that, Blackmun becomes highly legalistic. Although we have seen he never hesitates at reaching conclusions based on thin historical information or at reading intent into Constitutional clauses that are bereft of specific language he confines his use of language in areas that he knows might fatally weaken his position. 181 He fails to pursue arguments about veiled and ambiguous penumbras that could be interpreted to extend the meaning of what constitutes a person from the traditional legal dimension to the humane or philosophical. In dealing with the issue of what constitutes a person he chooses to stay within the bounded limits of Constitutional language and argues:
The Constitution does not define person in so many words. Section 1 of the Fourteenth Amendment contains three references to person. The first, in defining citizens, speaks of persons born or naturalized in the United States. The word also appears both in the Due Process Clause and in the Equal Protection Clause. Person is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3;(53) in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty179 180

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181 Steven Breyer, Active Liberty: Interpreting Our Democratic Constitution, (Alfred A. Knopf 2005); Aharon Barak, Purposive Interpretation in Law, Translated from the Hebrew by Sari Bashi, (Princeton 2005); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review, (Harvard 1980). Ely notes: There are signs that interpretivism may be entering a period of comparative popularity. Seceral reasons seem apparent. The first is that the controversial abortion decision of 1973, Roe v. Wade, was the clearest example of noninterpretivist reasoning on the part of the Court in four decades: it forced all of us who work in the area to (2) think about which camp we fall into, with the result that a number of persons would today label themselves interpretivists who had not previously given the choice much thought. (3)


second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application.(54)[p158] 182

Blackmun conveniently feels that this is sufficient to resolve the issue of the constitutional definition of person. The odd thing is that there are at least two Blackmuns writing this opinion. One Blackmun is a speculator, willing to read anything into his analysis as long as it appears to support his argument. The other Blackmun is a strict constructionist when confronted by an issue that does not fit his strategy. One wonders why evolving standards that might have extended the nature of personness to the pre-natal realm were not drawn into the analysis at this point to consider anew what should be included in the idea of personness. Of course, doing this would have produced a different kind of decision, both for the Court and for many of the women faced with the decision to abort the entity developing within them. Rather than do that Blackmun simply concluded: All this, together with our observation that throughout the major portion of the l9th century prevailing legal abortion practices were far freer than they are today, persuades us that the word person, as used in the Fourteenth Amendment, does not include the unborn.(55) 183 As he did with person Blackmun almost completely dodged the issue of when life begins and shifted to strict technical logic. He explains: Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. 184 His response was: We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of mans knowledge, is not in a position to speculate as to the answer. [p160] 185 The irony is that the Blackmun opinion is replete with speculation about nearly everything, except he leaves us in a technical void about the most important matters of life and personness. This says nothing about what life is, just as Blackmun said nothing substantive about the nature of personness. Faced with one of the most morally troubling choices that the Court has made, we are provided with virtually no guidance on the nature and quality of the two concepts most basic to the decision and to the wave of opposition that it met. Once again, this defect can be seen as a rhetoricians stratagem. As with the use of the term fetus rather than child, unborn child, unborn person, developing human and so forth, the choice of when life begins as well as what constitutes life is important in neutralizing opposition and in reducing the moral pressure on women faced with a possible decision to abort. One presumes it is a less difficult matter for a woman to abort a fetus than an unborn child.

182 183

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In some ways this is fully understandable. Assigning the point at which life begins at viability, or the ability of the entity to survive outside the womans body, presumably reduces the moral conflict inherent in the choice. It also has implications for society in the sense that, if the community largely accepts Blackmuns definitions of life being at independent viability, then the moral impact on the community is mitigated. But if freedom of individual choice is related at all to the idea of human flourishing in the sense of our highest development as people, it could be argued that decisions should be made based on the full range of relevant criteria and that responsible choice requires awareness of all consequences, including on self, family, and political community. In any event, Blackmun ultimately concludes that the point at which a state could impose some restrictions on abortion choices is the point at which a fetus becomes viable. This was said to be somewhere between 24-28 weeks after conception. 186 It was viability that ended up as Blackmuns key to states being allowed to intervene in the abortion decision. He set it out in the following words:
With respect to the States important and legitimate interest in potential life, the compelling point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mothers womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion [p164] during that period, except when it is necessary to preserve the life or health of the mother. 187

Justice Stewart, concurring in the majority opinion, states: In a Constitution for a free people, there can be no doubt that the meaning of liberty must be broad indeed. 188 He adds: The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the liberty protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. 189 He concludes by quoting at length from Justice Harlan.
[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This liberty is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Poe v. Ullman, 367 U. S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, Great concepts like . . . liberty . . . were purposely left to gather meaning from experience. For they relate to the whole domain of

186 187

Roe v. Wade, Roe v. Wade, 188 Board of Regents v. Roth, 408 U. S. 564, 572.
189 Roe v. Wade, referring to Schware v. Board of Bar Examiners, 353 U. S. 232, 238-239; Pierce v. Society of Sisters, 268 U. S. 510, 534-535; Meyer v. Nebraska, 262 U. S. 390, 399-400. Cf. Shapiro v. Thompson, 394 U. S. 618, 629630; United States v. Guest, 383 U. S. 745, 757-758; Carrington v. Rash, 380 U. S. 89, 96; Aptheker v. Secretary of State, 378 U. S. 500, 505; Kent v. Dulles, 357 U. S. 116, 127; Bolling v. Sharpe, 347 U. S. 497, 499-500; Truax v. Raich, 239 U. S. 33, 41. [p169].


social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged. 190

These same statements could have been used to justify the extension of the concept of personness to the prenatal stages of life. Or they could be used to critique Blackmuns use of history to support the right to abortion, explaining that we must not allow ourselves to be hostages to conditions that existed over a century ago. The Dissents of Justices Rehnquist and White While I am obviously critical of the majority opinion in Roe from the point of view of its analytic quality, that does not mean the conclusions of either the majority or dissent were right or wrong in absolute terms. We are talking in this essay about the conflicts and relationships among the forms of truth in the dimensions of law, politics and religion. This comes forth when we contrast the dissenting opinions of Justices Rehnquist and White with Blackmuns majority opinion. In dissenting, Justice Rehnquist sees the situation differently from the majority on several important factors. He remarks:
The Courts opinion decides that a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy. Our previous decisions indicate that a necessary predicate for such an opinion is a plaintiff who was in her first trimester of pregnancy at some time during the pendency of her lawsuit. While a party may vindicate his own constitutional rights, he may not seek vindication for the rights of others. 191

Rehnquist offers a preliminary challenge to whether Jane Roe has alleged facts sufficient to establish a case or controversy, but even he knows that is not what this situation is about. He notes: The Courts statement of facts in this case makes clear that the record in no way indicates the presence of such a plaintiff. We know only that plaintiff Roe at the time of filing her complaint was a pregnant woman; for aught that appears in this record, she may have been in her last trimester of pregnancy as of the date the complaint was filed. 192 Rehnquist suggests that at least as far as the Court can know Roe offers a hypothetical situation and that: In deciding such a hypothetical lawsuit, the Court departs from the longstanding admonition that it should never formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. 193 But even though Rehnquist may have had a valid legal point about whether a legitimate case or controversy has been stated by Roe, he admits: Even if there were a plaintiff in this case capable of litigating the issue which the Court decides, I would reach a conclusion opposite to that reached by the Court. 194 Although the principle claimed by
190 191 192

Roe v. Wade, citing National Mutual Ins. Co. v. Tidewater Transfer Co., 337 U. S. 582, 646 (dissenting opinion). Roe v. Wade, citing Moose Lodge v. Irvis, 407 U. S. 163 (1972); Sierra Club v. Morton, 405 U. S. 727 (1972).

Roe v. Wade,


Roe v. Wade, citing, Liverpool, New York & Philalelphia S. S. Co. v. Commissioners of Emigration, 113 U. S.
Roe v. Wade,

33, 39 (1885).


Roe and endorsed by the majority centers on the concept that the Constitution recognizes and protects a right to privacy and that the right encompasses a womans decision to undergo an abortion, Rehnquist distinguishes the privacy of the marital bedroom discussed in Griswold v. Connecticut with the context of what he argues are the very unprivate conditions attendant to a medical abortion.
I have difficulty in concluding, as the Court does, that the right of privacy is involved in this case. Texas, by the statute here challenged, bars the performance of a medical abortion by a licensed physician on a plaintiff such as Roe. A transaction resulting in an operation such as this is not private in the ordinary usage of that word. Nor is the privacy that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy. 195

Rehnquists criticism of the various authorities cited by Blackmun as recognizing the right to privacy is understandable. A reading of Blackmuns citations gives the impression that he had his law clerks do research on all the Courts decisions that even mentioned the term privacy and then cited them without analysis or consideration of whether they actually fit the situation in Roe. Rehnquist proceeds to draw the privacy language into the sphere of liberty, observing:
If the Court means by the term privacy no more than that the claim of a person to be free from unwanted state regulation of consensual transactions may be a form of liberty protected by the Fourteenth Amendment, there is no doubt that similar claims have been upheld in our earlier decisions on the basis of that liberty. I agree with the statement of [Justice Stewart] in his concurring opinion that the liberty, against deprivation of which without due process the Fourteenth [p173] Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law. The test traditionally applied in the area of social and economic legislation is whether or not a law such as that challenged has a rational relation to a valid state objective. 196

One of the most important aspects of Roe is highlighted by Rehnquists analysis regarding the constitutional test to be applied to state actions in the abortion domain. It was a critical act of the Roe majority to apply the compelling state interest test to states seeking to regulate in this area rather than the rational basis test of legislative validity. The effect of the Courts choice of the compelling state interest test is to reallocate and significantly increase the states burden of proof for its legislative choices. Given Blackmuns admission that there are numerous competing positions applicable to all the important questions involved in Roe, it became exceptionally difficult for a state to carry its burden of proof and justification. Virtually every premise a state legislature might rely on about the necessity of regulating abortion is subject to challenge. In any event, Rehnquists analysis on this point argues: The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even
195 196

Roe v. Wade, citing Katz v. United States, 389 U. S. 347 (1967). Roe v. Wade, citing Williamson v. Lee Optical Co., 348 U. S. 483, 491 (1955).


where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson. 197 He concluded: But the Courts sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Courts opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one. 198 The Court in Roe essentially said not only that you cant do what you tried to do but went beyond to write and this is what you must do Rehnquist criticizes the Courts extension of the compelling state interest test against which state laws are to be assessed pursuant to the Equal Protection Clause of the Fourteenth Amendment to Roe which was being examined under the Amendments Due Process Clause. Rehnquist warns that: the Court adds a new wrinkle to [the compelling state interest] test. [adding] Unless I misapprehend the consequences of this transplanting of the compelling state interest test, the Courts opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it. [p174] 199 Here we can go back to Aristotles idea concerning the distinct functions of the three basic parts of government. This distinction is embedded in our own system in the idea of the separation of powers and checks and balances. Justice Rehnquists fear is that:
the adoption of the compelling state interest standard will inevitably require this Court to examine the legislative policies and pass on the wisdom of these policies in the very process of deciding whether a particular state interest put forward may or may not be compelling. The decision here to break pregnancy into three distinct terms and to outline the permissible restrictions the State may impose in each one, for example, partakes more of judicial legislation than it does of a determination of the intent of the drafters of the Fourteenth Amendment. 200

Rehnquist also poses a direct challenge to Blackmuns historical conclusions. He argues:

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not so rooted in the traditions and conscience of our people as to be ranked as fundamental, Snyder v. Massachusetts, 291 U. S. 97, 105 (1934). Even today, when societys views on abortion are changing, the very existence of the debate is evidence that the right to an abortion is not so universally accepted as the appellant would have us believe. 201

Nor does Rehnquist accept that the right to privacy found by the majority to exist in the Fourteenth Amendment can actually be found in that provision. He offers:
To reach its result the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.
197 198

Roe v. Wade, Roe v. Wade, 199 Roe v. Wade, 200 Roe v. Wade, 201 Roe v. Wade,


As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. Conn. Stat., Tit. 22, 14, 16. By the time of the adoption of the Fourteenth [p175] Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.(1) While many States have amended or updated [p176] their laws, 21 of the laws on the books in 1868 remain in effect today.(2) Indeed, the Texas statute struck down today was, as the majority notes, first enacted in 1857 [p177] and has remained substantially unchanged to the present time. Ante, at 119. 202

Justice Whites dissent offers a clear alternative to the majority. Whites dissent almost certainly prompted Justice Burgers assertion that the dissent saw a future of abortion on demand that Burger was convinced would not be allowed by the majority decision. Burger, concurring in the majority opinion in Roe, offers what turns out to have been one of the more mistaken conclusions about the effects of the decision on American society. Burger was obviously a less than talented futurist, at least in Roe, given his observation that: I do not read the Courts holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand. 203 White sets the scene with the following language:
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. 204 I find nothing in the language or history of the Constitution to support the Courts judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers [410 U.S. 222] and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled 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. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court. 205 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 Courts judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Courts exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This
202 203

Roe v. Wade, Roe v. Wade, [410 U.S. 209] 204 Roe v. Wade, 205 Roe v. Wade,


issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs. 206

A Concluding Note on Roe v. Wade There were and are strong reasons why the decision in Roe can simultaneously have been politically necessary and legally less defensible. There are also reasons why the more than three decades of its existence should be viewed as transforming at least a substantial part of the Roe Courts flawed legal analysis from being primarily political when uttered to primarily legal at this point in time, whatever its original deficiencies. These reasons include the expanded role of women in American life, and a counter to the historical assumption that a womans place was in the kitchen and bedroom. The reasons also include the relative casualness of sex after a relatively Puritanical history. One of the most important reasons, however, is the need to recognize that law is political, that political stability is an important consideration in a complex social system, and that we must be careful in changing deep law either through reversal or extension. This does not mean that Roe should be treated as sacred or entirely inviolate. While there are reasons for rethinking some aspects of Roe, it would be unjust, unwise and socially destructive to reverse the decision. 207 The intriguing thing about all this is that Blackmun could be wrong on so many levels in Roe and yet be right in the necessity of the decision while saying more than was required to achieve the Courts goals. 208 His historical and legal analysis is badly flawed. His opinion is entirely one-sided. But Roe is a social force and a clumsy philosophical tract that nonetheless freed women to enter the mainstream of American life. The odd consideration is that the authors of the dissents were entirely right in their own way concerning how Roe should be dealt with as a matter of legal truth. The majority opinion used junk history, it misinterpreted, misapplied and inappropriately extended constitutional doctrines of liberty, due process, privacy and the compelling state interest test. It failed to consider the impact on society of the decision to allow a broad right to elect abortion. It played fast and loose with the terms fetus and pre-natal while avoiding or restricting terms such as person and life. On all these parameters it deserves the harshest criticism because Roe v. Wade offends the idea of legal truth and analytic honesty on virtually every level we can use that term. But Roe stands for one thing as a principle, another as a formula, and still another as a necessity. As bad as Roe is from a truth standpoint I cannot say that it was entirely wrong in the moment of its conception. The truth of Roe is that it freed women. In writing about the mood in Paris following the Nazi exit, Camus described a different kind of truth, the truth of a revolution or a truth that for a moment at least is larger than all the other forms. 209 I have not discussed this because it can easily be taken to justify
206 207 208

Roe v. Wade, South Dakota

David Cole, Agon at Agora: Creative Misreadings in the First Amendment Tradition, 95 Yale L. J. 857, 859 (1986), states: [I]n landmark cases the Justices alter the puzzle itself and create law. Thus, while judicial legitimacy requires faithful adherence to precedent, legal development turns on creative acts. 209 See, Albert Camus, Resistance, Rebellion, and Death (Alfred A. Knopf, 1961) translated from the French and


anything and is dangerous for an ordered society to accept. Yet for many women (and some men) Roe did and still does represent a larger revolutionary truth, and that is its strength and that is its danger. One may argue (and some do) that the price of that freedom was too high. Dianne Feinsteins statement during the confirmation hearings for Chief Justice John Roberts sets forth the conditions under which women historically were required to operate and the reasons there is opposition among many concerning the appointment of a Supreme Court justice who might vote to reverse Roe v. Wade. 210 In as balanced a way as I can present this analysis, there is a need for a wise and honest exchange concerning what happens from here. 211 Roe was almost certainly overly broad and unnecessarily sweeping. Even here, however, while it may have been a necessary evil in 1973 that our society be compelled to face a momentous shift in womens ability to determine their own futures, this does not mean that another shift is illegitimate at this point in our history after thirty plus years of experience. Part of the shift might be that of greater accountability for decisions. If a womans right to choose to terminate a developing life within her is premised on an idea similar to Aristotles human flourishing it is not obviously unfair to request that a dialogue begin as to whether it is being used in this way or too often as a license to remedy personally irresponsible behavior or that the choices are at times being made without a full context relating to the implications of the act. Without an honest dialogue about the limits of the power to terminate the existence of a developing entity within a woman that, if left to progress in the normal way would become us, then we are left with no chance of resolving a conflict that is tearing this nation apart and altering its political identity across a broad spectrum in ways that are not necessarily healthy. On one side it is disingenuous to think that the overall political community does not have an important interest in the philosophy and rules about how we treat and value life and the emergent potentiality of life. 212 On the other hand, it is equally disingenuous to act as if we do not frequently accept death tradeoffs in society
Introduced by Justin OBrien. Writing on the night in which Paris was liberated from the Nazis, Camus describes a kind of truth, unlike that of scholars. In The Night of Truth he proclaims: This night is worth a world; it is the night of truth. Truth under arms and in the fray, truth sustained by force after having so long been empty-handed and unprotected. It is everywhere this night when people and cannons are booming simultaneously. It is the very voice of the people and the cannons; it wears the exhausted face of the street fighters, triumphal under their scars and sweat. Yes, it is indeed the night of truth, of the only truth that matters, the truth that is willing to fight and conquer. (38) 210 Feinstein, Roberts Hearings, supra, n. . 211 Disputes over the priority and weight to be given different kinds of arguably meritorious qualities are found even in simple democracies. Few will agree on the terms of distributive justice or on the specific choices of merit that should govern us. See the discussion of claims to entitlement to rule others in the Politics, Bk. 3, c. 13, 1283b27, where Aristotle describes the disputes over who should be considered best and most virtuous. [T]he definitions on the basis of which people claim that they themselves deserve to rule while everyone else deserves to be their subjects, are none of them correct. For, in fact, even against those whose claim to deserve control of the ruling body is based on virtue, multitudes would have some argument of justice to make, as they would likewise against those whose claim to deserve it is based on wealth. 212 The anti-abortion movement calls itself pro-life, but those who defend abortion on request do not describe themselves as anti-life, or even anti-fetal-rights-to-life. They prefer the term pro-choice, thus presenting the issue as one about a womans right to choose whether to remain pregnant or not. They try to avoid taking a position on when a developing human being first has a right to life. This may be good politics, but it is poor philosophy. To present the issue of abortion as a question of individual choice (like sexual behavior between consenting adults) is already to presuppose that the fetus does not really count. Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics, supra, n. at 85.


without becoming incensed and dogmatic about what occurs and seeking to impose our will on others. 213 Law is problematic because a main function of law is to determine the allocation of benefits and duties in a community. 214 The different interests are talking from inside sealed frames of reference. These leave little opportunity for honest communication. 215 Words are launched back and forth like missiles. On the surface this may appear to be discourse, but the messages are not heard or accepted by those at whom they are aimed. 216 In such a system we require strong dispute resolution systems with a power sufficient to overawe competing interests to the extent sufficient to ensure the decisions, once rendered, are complied with. 217 This helps explain why there is such an intense competition to control legal institutions and the judiciaryincluding the Supreme Court-as we have seen in the confirmation hearings of Justices Roberts and Alito. These institutions are critical points of leverage where authoritative language is crafted and laws created and interpreted. 218 While some ways are preferable to others, in a political system, propaganda, polemic, hypocrisy and the like are more necessary to the systems well-being than we might wish. 219 But in the context of Roe v. Wade and the inevitable review by the Court that is building up in the legal system it would be a profound error
In fairness I should add that to describe the anti-abortion movement as pro-life is just as misleading as describing advocates of legal abortion as pro-choice. . [T]he movement ought to call itself pro-human-life. But that would still not be quite right, because the movement is not against killing in war, or capital punishment. Pro-innocenthuman-life is therefore closer to the mark. Singer, Rethinking Life and Death: The Collapse of Our Traditional Ethics, id, at 86. 214 According to Roscoe Pound, the purpose of the legal order: is to secure as much as may be of the whole scheme of interests, that is of the whole scheme of mens desires or demands involved in living together in civilized society, with the least friction and waste. New Paths of the Law 3 (1950). 215 Ellul describes fragmentation through specialization as a function of what he calls technique. Technique is of necessity, and as compensation, our universal language. It is the fruit of specialization. But this very specialization prevents mutual understanding. Everyone today has his own professional jargon, modes of thought, and peculiar perception of the world. The man of today is no longer able to understand his neighbor because his profession is his whole life, and the technical specialization of this life has bound him to live in a closed universe. Ellul, The Technological Society, supra n. , at 132. 216 Deborah Tannen, The Argument Culture: Moving from Debate to Dialogue 14 (Random House, N.Y. 1998). [Language] invisibly molds our way of thinking about people, actions, and the world around us. Military metaphors train us to think aboutand seeeverything in terms of fighting, conflict, and war. This perspective then limits our imaginations when we consider what we can do about situations we would like to understand or change. 217 Auerbach, Justice Without Law? supra n. 81, at 141 describes what has occurred: The dependence of Americans upon law, and their apprehension about it, are reciprocal. The exercise of freedom, channeled into the acquisitive pursuit of wealth, requires the vigorous assertion of individual rights, which law protects. It also assures incessant conflict between competing individuals, who are virtually unrestrained by any purpose beyond self-aggrandizement. The Darwinian jungle is filled with the excitement of the hunt, but it is a scary place because the hunters simultaneously are hunted. As Americans pursue their quarry, they need protection (provided by law) for themselves, and weapons (also provided by law) against their adversaries. 218 Levi observes, The law forum is the most explicit demonstration of the mechanism required for a moving classification system. The folklore of law may choose to ignore the imperfections in legal reasoning, but the law forum itself has taken care of them. Levi, Introduction to Legal Reasoning, supra, n. 18, at 4. 219 On this point see, John Stuart Mill, Utility of Religion, in John Stuart Mill, Three Essays on Religion: Nature, The Utility of Religion, Theism (Prometheus Books, Amherst, NY, 1998) at 71 where Mill in discussing the role of religion in society observes: It is a most painful position to a conscientious and cultivated mind, to be drawn in contrary directions by the two noblest of all objects of pursuit, truth, and the general good. Such a conflict must inevitably produce a growing indifference to one or other of these objects, most probably to both. Many who could render giants service both to truth and to mankind if they believed that they could serve the (72) one without loss to the other, are either totally paralyzed, or led to confine their exertions to matters of minor detail, by the apprehension that any real freedom of speculation, or any considerable strengthening or enlargement of the thinking faculties of mankind at large, might, by making them unbelievers, be the surest way to render them vicious and miserable.


either to overturn the decision and hand the legal control of a national issue back to individual states, just as it would be a mistake to allow the extensions of Roe that have occurred since a majority of the Supreme Court dropped a political bomb on America in 1973. The position of women must be protected, even while the interests of the overall political community deserve better consideration than has occurred to this point. A key to all of this is that the all or nothing extremes found on both ends of the spectrum must not be allowed to dominate the discourse or the outcome because each is rigid and intolerant to the point that their revealed truths brook no alternative and will tear the nation apart.