Moral Outrage, Sterilization, Natural Law and Supreme Court Justices

Moral Outrage, Sterilization, Natural Law and Supreme Court Justices

By Joel Levin

The news is horrifying, at once completely unexpected and entirely expected. It is a report of yet another human rights abuse, one of now so many that we are lost in the count of all the tortures, the mass killings, the human degradations, the endless cruelties. In an era of so much cruelty, it is just another story, smaller in this horrific calculus scale of what counts as worse and the worst, perhaps worthy of only a “tsk tsk” followed by a move to the next outrage, the next shocking misconduct reported, the next indignity we humans relentlessly do to each other. Yet, but yet, it is clearly a case, as one witness said, of there being in America “an experimental concentration camp. It’s like they’re experimenting with our bodies.” The victims are not new, women; the setting is not new, prisons; and even the event is not new, forced sterilization. The place is not new either, America.

The event first. A nurse filed a complaint with the Inspector General for the Department of Homeland Security, claiming unauthorized and unconsented-to hysterectomies were being performed at an Immigration and Customs Enforcement (ICE) detention center on those claiming refugee status. ICE has issued its usual no denial denial, calling the stories “anonymous, unproven allegations.” Meanwhile, the witnesses and the stories continue and grow.

We can hardly claim surprise, as ICE has put children in cages, separated families, refused basic human necessities of hygiene and medical care, and treated human beings with contempt and disdain. Moreover, sterilization is a well-known and distressingly widespread method of suggested population control. It is part of a general pattern of conduct in wartime and quasi-war time against women, involving forced prostitution, rape, coerced marriage, and sexual slavery. All of this is relatively familiar to anyone who bothers to look even casually, but it has not been, in these terms, as common in more prosperous countries and in more recent times. In fact, in that deviations from basic decency occur in such matters as child-trafficking, there is almost universal de facto or official or vociferous condemnation, a step forward from too many previous times and too many previous places. This is hardly coincidence, but is rather due, in large part, not to the fact that people behave better in such countries and in such times because of their innate moral superiority, an assertion which is clearly false, but rather to their embracing a belief system that has been called ‘ethics’ or sometimes, ‘natural law.’ That latter term has a number of meanings, but the one used here can be loosely stated as a belief system that requires that individual behavior and legal codes need to be governed in significant ways by ethical constraints, and those constraints hang together in some kind of rational, well-ordered, moral system that requires from each of us scrutiny, justification, consistency, and respect of individuals. Lacking that belief system leads us to ICE.

Nevertheless, pervasive questioning of such a system, being skeptical of it or pushing it to one side, is endemic to our society. I want to show this from perhaps an unusual starting point, the philosophical dispute between Justice Oliver Wendell Holmes Jr. and Justice Clarence Thomas. Early in Justice Thomas‘ confirmation hearing – by early, we mean before the allegations, better supported later, but largely ignored by the Senate, surfaced concerning his conduct or misconduct towards Anita Hill – then Judge Thomas, voiced comments from what seemed to be out of nowhere: criticisms of the great liberal and judicial icon, Justice Holmes. His criticism amounted to this: Justice Holmes did not believe in natural law, did not believe in an overarching ethics, did not believe in some set of moral principles that would constitute, in Holmes’ own words, “a brooding omnipresence in the sky“. Holmes, simply, lacked any moral compass. Essential to deciding cases, and in fact essential to being a decent human being, at least according to Thomas, is the need for such a moral compass. As he wrote in a law review article, “far from being a license for unlimited government and a roving judiciary. . . natural rights and higher law arguments are the best defense of liberty and of limited government.” In that sense, Thomas got Holmes exactly right.

Let us first look at what Holmes said and then later look at what he did. First, let us remember that complex, and even not so complex, thinkers should not have their thoughts taken out of context, unduly simplified, or so abbreviated as to be the subject of caricature. That sketchy landscape is, of course, the playground of politicians, and to a distressing extent, journalists, but it is wholly inadequate in most places, and a disaster in explaining moral views.

Having now set us ourselves an impossible task, let us briefly see what Holmes said in his 1918 article, Natural Law, the writing Clarence Thomas no doubt had in mind in his criticisms. The Olympian Holmes begins with one of his Olympian observations: “It is not enough for the knight of romance that you agree that his lady is a very nice girl – if you do not admit that she is the best that God ever made or will make, he must fight.” We need to reach, as he then discusses, the superlative, the certain, the inevitable. For him, though, “Certitude is not a test of certainty.” He suggests instead a ruthless skepticism as a guiding principle, not an uncommon philosophical stand, but he then makes the turn toward pragmatism as the sole reality. Holmes sees skepticism as the final answer. Since there is no truth or reality in most realms, whatever works will be just fine. Individual preferences are drawn from personal experience and lead to a certain dogmatism. Now the turn: that dogmatism is the end of it. “Deep-seated preferences cannot be argued about – you cannot argue a man into liking a glass of beer – therefore when differences are sufficiently far-reaching, we try to kill the other man rather than let him have his way.“

Morality is no different. Here, Holmes is using reality and the term ‘natural law’ to be more or less identical, talking about what has to be rather than what is. He finds natural law to be nonsensical, unable to meet any test set by skepticism or any reason for calling its principles reality or truth. Those on the other side are in “that naïve state of mind except what has been familiar and accepted by them and their neighbors is something that must be accepted by all men everywhere.“ Finally, he suggests that this entire area does not even admit of argument, as the two sides, those who believe that there is such a thing as right and those who believe one just pragmatically promotes their own interests, have nothing to say to one another. “It is idle to illustrate further, because to those who agree with me I am uttering commonplaces and to those who disagree I am ignoring the necessary foundations of thought.”

This empty, forlorn, solipsistic loneliness, a loneliness beset by the fear that only power and the luck of a benign legal system count, is what bothered JudgeThomas. But his opinions do not measure up to meeting that concern. That is, he identified the problem correctly, that we can have an abstract ethical system, one that allows for justice aside from power and for fairness aside from inequity, and that these ethical principles are available to tame and rein in power, unfairness, irrationality, and arbitrariness, but he looked in the wrong place to find it. His was, in general, always a solution from a religious ethic, his own Catholicism, which he rightly put aside in deciding cases, leaving him without further guidance to jettison the emptiness of Holmes. This is a shame, as natural law philosophy was to some real extent birthed in Catholic thought, particularly with Thomas Aquinas. If one returns there, not by making Aquinas the authority, but by looking at how he conducts his own reasoning (or if not Aquinas, then his more insightful, interesting, and textured modern doppelgänger, John Finnis), one can find one’s way out of this problem.

The problem of Holmes’ conceptual emptiness and its capacity to lead to ethical horror was illustrated in 1927 in one of the handful of decisions (Dred Scott and its requirement to return fugitive slaves, Korematsu and its blessing of Japanese internment, Hammer and its protections of the grisly child-labor factory conditions leading to the death of children, Bowers which allowed consensual and loving gay relationships to be criminalized; there are others), that have forever stained the Supreme Court. The case was Buck v. Bell. Carrie Buck was the illegitimate daughter of a prostitute who gave her up to the Virginia State Colony for Epileptics and Feeble-Minded. The Commonwealth of Virginia took her in and, with virtually no evidence, attributed a mental age of 9 to her. Carrie eventually gave birth herself. The head of the facility, making use of the law of eugenics, called Carrie feeble-minded and promiscuous (in fact, she was raped) and argued for her sterilization. The case went to the U.S. Supreme Court where Holmes, in an 8-1 opinion, wrote in favor of the Commonwealth of Virginia. He held “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.” The sole dissent was by the court’s devout Catholic justice, Pierce Butler.

Holmes’ opinion, along with the underlying sterilization statutes, became a central part of the blueprint that grounded the Nazi eugenics program, and they appropriately credited Holmes in the process. Judge Thomas said he came to natural law in essence to avoid such a destruction of our basic values. “My interest started with the notion, with a simple question: How do we end slavery? By what theory do you end slavery? After you end slavery, by what theory do you protect the rights of someone who was a former slave or someone like my grandfather, for example, to enjoy the fruits of his or her labor?” Not by power or prejudice or background or taste or the popular will, or what seems practical and pragmatic at the time. Not by Holmes. Eugenics once seemed to all to be practical, not unreasonable, able to solve large population and societal problems. That it was immoral, pernicious, reprehensible, and evil did not seem to occur to Holmes, as none of these concepts figured in Holmes’ vocabulary, none of it in his practical or pragmatic thinking, none of it available to one who rejected the moral realm as illusory or non-existent. Not a problem, either, to ICE, eliminating future undesirable immigrants or pretenders to American citizenship, stemming expense to the American taxpayer, and avoiding the messiness of deportation, all by simply taking the early expedient of sterilizing these women now. Who cares about morality? Who says there is anything like justice? Why should we be concerned about natural law? Where is the term ‘sterilization’ mentioned in the Constitution?

Here, Justice Thomas seemed to have it almost right at the time of the hearing, although he did not take the next step necessary to make it work. “The need to reexamine natural law is as current as last month’s issue of Time on ethics, yet is more venerable than St. Thomas Aquinas. It both transcends and underlies time and place, race and custom and until recently, it has been an integral part of the American political tradition.” Absolutely right.  He then continued: “I do not think you can use natural law as a basis for constitutional adjudication, except to the extent that it is the background in our Declaration, it is part of the history and tradition of our country, and it is certainly something that informed some of the early litigation.. . . . It is certainly something that has formed our Constitution, but I don’t think it has an appropriate role directly in constitutional adjudication.”

What Thomas seems, remarkably, to suggest is that we morally need to use natural law in order to tame, rationalize, understand, and make fair Constitutional adjudication, but we are not going to do so. The actual language in some peripheral way matters, but making use of vague principles, let alone applying the ideals of the Declaration or the Constitution, to present appellate cases is off limits. The rights of women and former slaves to equal treatment, the right for different races to marry or attend school together, the right to one man one vote, the right to privacy; these natural law or moral concepts, arguably embedded but clearly unmentioned in the Constitution (or Declaration of Independence for that matter) fall to the originalist-literalist axe. So, for that matter, do the rights of wards of the state, like Carrie Buck, or those in the custody of ICE, not to be sterilized. Tubal ligations are not mentioned by Madison.

Make no mistake what is at stake: everything. Holmes thought forced vaccines and forced sterilizations (and conscription to a lesser extent) were constitutionally indistinguishable: medical procedures necessary to protect the greater good, or more exactly for him, those in power. Only some kind of moral reasoning lifts us out of that fallacious equality. Otherwise, we have no moral rudder. We are mired in relativism, where what is meant by ‘good’ means good at the moment. Slavery and rape and murder and hanging children are bad now, but don’t worry, they may perfectly fine at another time and place. Liberals are particularly susceptible to this kind of thinking that moral hesitation is a good thing. Jeffrey Toobin, for example, lauds Holmes for “being part of a notable lineage to a jurisprudence of doubt”, writing that “Theorists like Oliver Wendell Holmes, Jr. and Learned Hand thought it was critical for judges to reflect doubt that their conclusions were correct for all time.” Every war, genocide, and mass killing suggest otherwise.

The new nominee for the U.S. Supreme Court, Judge Amy Coney Barrett, stands squarely in this embattled conceptual space. Let us pause a moment to consider the forced sterilization that occurred, the latest in a long line of such unconsented-to and coerced such surgeries that preceded Carrie Buck’s medical and legal trials, and continued long after. They involved, per the scholar Dorothy Roberts, over 7,600 African-American women sterilized in North Carolina alone. Coerced sterilizations have typically focused on the least powerful (most vulnerable), including, according to another scholar, Jane Lawrence, thousands of Native American women in the 1960s and 1970s by the federal Indian Health Service. Minorities, the disabled, the transgender, and immigrants top the traditional (the depressingly usual) list of victims, with many population control advocates suggesting the poor generally should join the list. Coerced sterilization has begun to be recognized as a crime against humanity by the Istanbul Convention and the Rome Statute of the International Criminal Court. Natural law takes note of such matters, as a recognition of moral standards required by civilized nations. The U.S. Supreme Court, meanwhile, has never overruled Buck v. Bell.

Back, then, to Judge Barrett. A point of contention in her hearing for a seat on the Court of Appeals was an article she coauthored, Catholic Judges in Capital Cases. While the argument is lengthy, essentially Judge Barrett suggests that Catholics, including herself, who serve as judges in capital cases ought to recuse themselves from sentencing, as “We believe that Catholic judges (if they are faithful to the teaching of their church) are morally precluded from enforcing the death penalty. This means that they can neither themselves sentence criminals to death nor enforce jury recommendations of death.” This is consonant with the point made by Justice Thomas and a rebuke to the Holmes’ view that moral, or religious-moral judgments have no place in the American legal system. By suggesting recusal when there is a divergence between Catholic teaching and the apparent rules of the legal system, she seems to be coming down on Thomas’ view that the two must stay apart. However clear the requirement of recusal seems, though, there is a hint that one could push the argument in a different direction in a way that Judge Barrett herself suggests in the article. That hint is that, as there are moral principles underlying what she considers to be good reasons to be a Catholic (or perhaps more accurately good reasons among many other reasons, also good or perhaps even better in her mind), and she is not precluded from using those good moral reasons, as they underlie the logic and experience of the idea and meaning and purpose of the Constitution in deciding cases that would come before her.

This is a complex issue, but let me suggest just one solution, a solution drawn from Judge Barrett’s tradition. First, let us recognize that Judge Barrett finds moral reasons outside religion can be compelling to those lacking faith, those that have no particular connection to religion. That is, there are moral reasons that parallel religious reasons in the moral realm and they can be matters of conscience that direct the conduct of a judge. That is, she does not suggest that the religious, let alone only Catholics, have a monopoly on moral reasoning. Just the opposite. “And, of course there may be any number of judges who believe in no God at all who would nevertheless have insurmountable conscientious problems with enforcing the death penalty.“ Judge Barrett recognizes, then, that there is a moral realm, one rational and compelling to individuals, lying outside theology, which instructs us in good behavior. Given her obvious erudition, perspicacity, and perch as a Notre Dame law professor, she clearly has in mind (among other possibilities) the moral reasoning that grew out of the Enlightenment, the reasoning of such individuals as Immanuel Kant, whose categorical imperative closely resembles the golden rule: for any action one takes against (or in favor of) a particular person, one must be willing to take it against all people, themselves and their families included. From this proposition, Kant and then others developed the kind of moral system that in fact was used by the Founding Fathers, and filtered down to the kind of rights-based politics that dominates politics today.

If Justice Thomas, with his reticence to employ the natural law values he seems to cherish, has basically left the field open to the Justice Holmes he despises, Judge Barrett has another example, one from the Catholic tradition, that she openly and proudly proclaims to follow. It is the example of the Justice Frank Murphy, Pierce Butler’s Catholic successor (in the days when religious seats were allocated one at a time) and his dissent in the Korematsu case.

The Korematsu case, often called the Japanese Internment case, arose with the arrest and detaining in scattered and isolated compounds of 120,000 Americans of Japanese descent. America was at war and that fact seemed adequate to justify extraordinary powers residing in the executive, powers that allowed it to detain, but not punish, a citizenry whose loyalty was considered on slim evidence to be in some doubt. (That said, German-Americans were not treated in the same way. As Kurt Vonnegut has pointed out, Dwight Eisenhower, a German-American, was made Supreme Commander of the U.S. forces). The internment order’s validity was challenged up to the Supreme Court. The Court held the internment to be legal. It denied that race was the motivating factor in moving Fred Korematsu from California to an internment camp, but said, rather, that the government “feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders – as inevitably it must – determined that they should have the power to do just this.” This is not an irrational or outlier opinion and does not, in any obvious way, violate the plain language or historic interpretation of the Constitution. Certainly that document does not contain any mention of “our democratic way of life”, “racial discrimination in any form”, “free people” or the “distinct civilization of the United States.” These notions – democracy, free people, racial discrimination (or its ban), civilization – are part of the fabric of natural law. Consider, then, Justice Murphy’s dissent in Korematsu:

“I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution.”

Murphy provides Judge Barrett, and all of us, the blueprint as to how to integrate the principles of natural law, at least ones built on reason and fairness, with the rules of a legal system. Consider the invitation to follow Murphy implicitly set forth by John Finnis, the authority Judge Barrett cites with real approval in her article (and interestingly, the doctoral supervisor of Justice Gorsuch when he was a graduate student writing his thesis at Oxford). Professor Finnis, in his field-defining work, Natural Law and Natural Rights, looks to reason, not authority, to promote the use of natural law, writing that “there are human goods that can be secured only through the institutions of human law, and the requirements of practical reasonableness that only those institutions can satisfy.“ He concludes that this practical reasonableness, reasonableness rooted in a deep respect for ethics and respect for and the use of reason itself, is available even in legal systems that seem otherwise closed or hostile to such outside influences. “In short, even in well-developed legal orders served by a professional caste of lawyers, there are (and reasonably) quite a few opportunities of raising ‘intra-systemically’ for example before a court of law, the question whether what would otherwise be an indubitable legal duty is in truth not (legally) obligatory because it is unjust.” Finnis himself lists the right to procreate as one of the fundamental human goods (and under his first basic good, life, begins with health care, not irrelevant to any consideration of the Affordable Care Act. Finnis is against abortion, but the complex ethics of that choice involving personhood and privacy, as opposed to the question of who gets to make the choice. The question of who decides is the one for the courts. Justice Barrett, with her position known to be against abortion as an ethical stance, is vaguer on who, the state or the mother, should choose. She will be asked, no doubt soon, to address that issue).

Justice Thomas tepidly, and in a full-blooded way, Justice Murphy and Professor Finnis point the way to crafting a legal system where the horrors of coerced sterilization are impossible. Whether a Supreme Court that decided Buck v. Bell (and Korematsu) will follow remains an open question and a profound concern.