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Odds are Gorsuch won’t defend rights as God-endowed

[This article was originally published at dailycaller.com some weeks ago. It’s worth revisiting in light of Judge Gorsuch’s testimony during the U.S. Senate hearing on his nomination to SCOTUS.]

Like Mitt Romney and other politicians seeking support from the GOP’s conservative constituency, candidate Donald Trump touted his switch from favoring so-called “abortion rights”.  President Trump’s nomination of a replacement for Justice Scalia may prove to be an important fact in evidence for the sincerity of Mr. Trump’s change of heart.  Neil Gorsuch authored a book pondering the possible premises for a jurisprudence dealing with assisted suicide. As one reviewer describes it:

The Future of Assisted Suicide concludes with a call for a “consistent end-of-life ethic,” which would create a proper balance between “the inviolability of life”—meaning no assisted suicide—and the right of patients to refuse unwanted medical interventions, which the author supports. If patients cannot choose for themselves, Gorsuch urges that a high “clear and convincing” evidentiary standard be applied about the best interests of the patient to determine whether treatment be withheld or withdrawn.

The publisher’s online blurb for the book describes the gist of Gorsuch’s “legal argument against legalization [of assisted suicide and euthanasia]” as “one based on a principle that, surprisingly, has been overlooked in the debate—the idea that human life is intrinsically valuable and that intentional killing is always wrong.”   The idea that human life is inviolable because of its intrinsic worth comes close to the core premise of the pro-life cause. 

The fact that Gorsuch applies this premise to the issue of assisted suicide can be taken as a hopeful sign that he would do the same with respect to nascent human beings.  But this entirely depends on whether he accepts the fact that the activity of the SCOTUS rises to the level of statesmanship; so that it must take into account the premises of our identity as a people, and the liberty (self-government) our Constitution is supposed to serve.

It is not a good sign that, as one Amazon commenter put it, Dr. Gorsuch’s “analysis is completely rational and secular, not relying on any religious argumentation.”  In this respect, his argumentation departs from the premises of American liberty and government.  Those premises assert the inviolability of human life in terms of its origin in the being and will of the Creator, God.  America’s Founders understood that human nature substantially depends on determinations informed by God’s will.

In a special way, those determinations define and distinguish what is human from what is not.  In order to perpetuate human existence, we must respect God’s determinations, whether in the form of the material laws that constitute and sustain our bodies; or the moral laws that inform the faculties of conscience and will that constitute and sustain the right choices (i.e., choices conducive to our good) we make as individuals or communities.

Without this reference to the being and will of God, what sense does it make to speak of the inviolability of life?  Obviously, in terms of the laws that govern material nature, it makes no sense at all.  In material terms, human beings are mortal, and relatively fragile.  Life can be and is violated all the time, in the natural course of things.  The conclusion that human life is inviolable thus makes sense mainly in terms of human will and intention, since both fall within the purview of our faculty for choice.  But the possibility of choice complicates the meaning of law when it comes to our nature, of which choice is a defining characteristic. So, in relation to us, the natural law is, as it were, an instructor or guide, which we are free to disregard, in election if not in consequence.  It is a boundary we apprehend, but may transgress. It has a force we can go along with, or strive to resist.

In conjunction with our self-conscious intelligence, this allows us to override instinctive impulses in order to imagine, produce and make use of devices that increase our power beyond its natural limits. People may say that if God had wanted us to fly, He would have given us wings.  But since He made us with the imaginative intelligence to understand and make wing-equivalents, for us the bounds of nature can become lines of inquiry instead of demarcation.  Yet and still, the fact that we can imaginatively equip ourselves to fly does not morph us into eagles or vultures.  However, it does imply a way of understanding things that can tempt us to treat other human beings as our prey.

This was the prospect Immanuel Kant sought to avoid with his Critique of Pure Reason, first published in the same year the United States of America declared their independence, 1776.   Therein he spoke of the challenge to morality posed by the empirical scientific method:

Suppose now that morality necessarily presupposed liberty, in the strictest sense, as a property of our will; suppose that reason contained certain practical, original principles a priori, which were absolutely impossible without this presupposition; and suppose, at the same time, that speculative reason had proved that liberty was incapable of being thought at all. It would then follow that the moral presupposition must give way to the speculative affirmation, the opposite of which involves an obvious contradiction, and that liberty and, with it, morality must yield to the mechanism of nature; for the negation of morality involves no contradiction, except on the presupposition of liberty.

Kant hoped that his work would clarify the limits of empirical knowledge in order to make room for faith.  Instead, it gave rise to trains of thought, including pragmatism and Marxism, that practically banished God and morality from human affairs. They asserted instead views that exclusively worship power, or the results it produces; and which simply exempt human affairs from the superintendence of self-sufficient being, which otherwise gives substance to the standard from which human life derives its intrinsic worth.

By contrast, America’s Founders embraced that standard, making it the basis for an experiment in just government that aimed to constrain power within the bounds of right, even as it encouraged the exercise of right in which true liberty consists.  Unlike Immanuel Kant, the statesmanship of America’s Founders did not neglect the fact that our human way of being is itself a mirror.  It reflects upon the experience of God. They set out to prove, by their choice of God’s standard of right, that the vocation of man is to improve upon the mechanism of nature, by trusting in God’s benevolent intention for humanity.  They therefore staked the destiny of the American people upon the consensual exercise of right that God endows.  

In our era, that commitment hangs in the balance.  If Donald Trump’s nominee becomes Mr. Justice Gorsuch, his respect for the inviolability of human life could shift that balance in favor of the exercise of right.  But this is likely only if he finds the wisdom to do what Justice Scalia never did: Boldly assert the God-acknowledging practical wisdom of America’s Founders against the pragmatic, Marxist and secular “negation of morality” that is presently hurrying our Constitutional republic toward its demise.

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  • Ned Jacobs

    Dr. Keyes, I share your concern, and you are right, if we are too weak to recognize our foundation in God -- and in natural law, I might add -- we lack the foundation we need to properly articulate and defend and promote the proper role of positive law, including our Constitution, in the fabric of human affairs. Scalia was unbelievably great, but you are right, he could have been even greater still. Somehow I hope Justice Gorsuch is up to the task. I still remember your visit to St. Croix in the U.S. Virgin Islands when you were running for president long ago, and I had the great privilege of driving one of the vehicles (mine) that ferried you and your wife about the island as you spoke boldly and truthfully without fear in a way we rarely encounter in public discourse. It was wonderful to have had dinner with you and your wife at the end of the long day of spirited truth-telling, which shocked many of your listeners. Ned Jacobs, St. Croix

  • Cousin_Ken

    Thank You Dr. Keyes
    Odds are your defense of rights are God-endowed

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