A sidebar in James Hitchcock’s “Superemely Modern Liberals”
by David Mills
Americans have, in the Supreme Court, an example of the division James Hitchcock describes, between those who appeal to some objective realities and those who insist on the final authority of the “imperial self.” Perhaps never was the difference more obvious than in the Court’s decision in Planned Parenthood v. Casey, in which it rejected the opportunity to overturn Roe v. Wade. Writing for the majority, and appealing to earlier decisions, Justice Sandra Day O’Connor argued that sexual matters—from contraception to abortion—involved “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy,” which are therefore
The emphasis is mine. O’Connor’s one sentence may be the most famous statement of the modernist mind in American politics and certainly the most authoritative. She proceeded to argue that abortion is “an act fraught with consequences,” including “depending on one’s belief . . . the life or potential life that is aborted.” And she concluded this part of her argument by declaring:
The emphasis is, again, mine. Through such assumptions imposed on the text the lives of millions have been lost. In effect O’Connor declared, as would-be revolutionaries chanted in the sixties, that it is forbidden to forbid.
To Justice O’Connor’s articulation of modernist orthodoxy in Planned Parenthood v. Casey, Justice Antonin Scalia dissented, with an appeal to the actual text of the Constitution and the history of its interpretation. The issue, he wrote, is
O’Connor had appealed to what she called the “reasoned judgment” of Roe v. Wade, though, as Scalia noted, the Court’s majority had begged the essential question of the status of the unborn child—a question O’Connor also begged in Casey.
This was not, Scalia pointed out, very good thinking, because these phrases (or excuses) could just as logically justify
The majority of the Court does not, yet, seem willing to approve of polygamy or incest as an expression of O’Connor’s “right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” But, as modernists, they could not tell you why not.
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