McCarthy Demere, surgeon and lawyer, with his lovable Memphis twang, lingers in the memory of the pro-life movement for his wisdom and wit. We used to say of McCarthy that if he couldn’t save you as a surgeon, he’d write your will. He engaged his sardonic wit against the movement, already revving up forty years ago, for “assisted suicide” and “death with dignity.” McCarthy said that his notion of “death with dignity” was Fred Astaire, in white tie and tails, being shot in the middle of a pirouette.
Behind the joke, as ever, was a deeper point: The glowing term of “dignity” was falsely invoked if it were used to give cover to an act of killing that was wrongful. And yet that elementary point about the concept of “dignity” has eluded some accomplished writers, liberal and conservative. One friend, of large, liberal sympathies, has written a book devoted to the subject of “dignity,” and he finds that attribute anchored in human beings. He doesn’t quite say whether that dignity arises from the nature of “moral agents” who can reason about matters of right and wrong, and he certainly doesn’t credit, as the ground of his argument, Lincoln’s view that “nothing stamped with the Divine image and likeness was sent into the world to be. . .degraded, and imbruted.” The “dignity” attaches simply to human beings, and yet, for some reason it doesn’t attach to those human beings who happen to be in the womb.
That striking omission would call out for a justification: on what grounds would the mantle of “dignity” be removed from a whole class of human beings, with the result of removing them from the protections of the law?
But on the other side of the political spectrum, other friends of mine have found something of sinister portents in the term “dignity” because it has been invoked by Anthony Kennedy in a series of cases on homosexuality and same-sex marriage. Kennedy has persistently invoked the term “dignity” as part of the claim that the homosexual relation is constitutionally protected from reproach and adverse judgment. “Persons in a homosexual relationship may seek autonomy for these purposes,” he has written, and these “choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment.”
In a recent statement, some friends have rightly sought to summon opposition to Justice Kennedy’s opinion in the Obergefall case on same-sex marriage. But in their account of the grievous faults and dangers in that opinion they have expressed concern for “a new and ill-defined jurisprudence of identity and dignity.”
But let us assume for a moment that some judges begin to invoke John Paul II’s understanding of the “the human person” as the subject and object of the laws. To understand the nature of that human being, gifted with reason, with a soul that will not decompose with his body, is to understand why the law seeks to cast protections about that person for his life and his freedom. The Constitution mentions “persons,” but it doesn’t use that phrase “the human person.”
Would there be something that offends “textualists” if judges sought to bring out, in that term, the deeper moral dimensions of those persons that the Constitution would value and protect? Justice Harry Blackmun showed us what could be done with the term “person” as it was contained in the text. He found that the “persons” mentioned in the Constitution were people counted for voting, eligible to hold office, accused and convicted of crimes, extradited for crimes, and “held to Service or Labour in one State.”
From this catalogue, Blackmun drew the inference that “persons” must be post-natal! The term would not protect those humans in the womb. Once again, as with “dignity,” the term was employed without any moral reasoning to explain why, with the simple withholding of the term, a whole class of humans should be removed from the protections of the law.
The late Robert Bork stirred a wave of hostility because he expressed reservations about a right to “privacy.” The term wasn’t in the text of the Constitution, and yet it supplied a spurious ground for new rights of contraception and abortion. But as Bork understood, the Constitution presupposed claims of privacy at many points. For a liberal society respected a limit to the reach of public authority, recognizing implicitly a private realm. And that private realm could readily and rightly be penetrated when it becomes the site of criminal activity and outright murder.
Bork was concerned then with the misuse of the concept of privacy by liberal judges. In that case the problem was not that “privacy” was not mentioned in the Constitution, but that it was deployed mistakenly for wrongful ends. And yet, this is the problem that has ever plagued conservative jurisprudence: There is such fear of mistakes made in moral reasoning that conservatives would prefer to avoid moral reasoning altogether as something that smacks too much of – gasp! – “natural law.”
The corrective is apparently sola scriptura: stick to the text, in a mechanistic way, as though terms in the text could never be misused. With “marriage” the conservative justices complain that the term cannot be found in the Constitution; but on the substance and meaning of marriage, they have nothing to say. And one wonders: how long will it take, among seasoned lawyers, for these lessons to break through?