Editor’s Note: This piece is part of the Ius & Iustitium series on the Supreme Court’s 5-4 decision in June Medical Services, L.L.C. v. Russo, striking down Louisiana’s abortion restrictions. The contributors to Ius & Iustitium will be offering short essays focusing on different aspects of the Court’s decision. A post collecting the essays will be published at the end of the series.
In his appalling invocation of the principle of stare decisis in concurring with the United States Supreme Court’s overturning of a Lousiana statute meant to call abortionists’ bluff on the claim that killing babies is “health care,” Chief Justice John Roberts quotes a famous passage of Edmund Burke’s Reflections on the deference due to the wisdom of the ages. Several commentators have protested at this abuse of Burke’s principle. Thus, Yuval Levin points out that Burke himself held that precedents should only hold when they fulfill certain conditions:
They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.
Levin’s defense of Burke is good as far as it goes, but it neglects the tragic ambivalence in Burke’s thought that makes him the archetypal Anglophone conservative. Burke’s thought contains, on the one hand, certain remains of the classical and medieval understanding of the reality of the natural law, but on the other a tendency towards historicism and a desire to “conserve” elements of the early stages of modern individualism that militate against the better part of his thinking.
The better part of his thought is shown in his famous speech at the Impeachment of Hastings for the latter’s crimes in India, in which he gives the following unobjectionable account of natural law:
We have no arbitrary power to give, because arbitrary power is a thing which neither any man can hold nor any man can give. No man can lawfully govern himself according to his own will; much less can one person be governed by the will of another. We are all born in subjection,—all born equally, high and low, governors and governed, in subjection to one great, immutable, preëxistent law, prior to all our devices and prior to all our contrivances, paramount to all our ideas and all our sensations, antecedent to our very existence, by which we are knit and connected in the eternal frame of the universe, out of which we cannot stir. This great law does not arise from our conventions or compacts; on the contrary, it gives to our conventions and compacts all the force and sanction they can have. It does not arise from our vain institutions. Every good gift is of God; all power is of God; and He who has given the power, and from whom alone it originates, will never suffer the exercise of it to be practised upon any less solid foundation than the power itself. If, then, all dominion of man over man is the effect of the Divine disposition, it is bound by the eternal laws of Him that gave it, with which no human authority can dispense
But such insights in Burke are betrayed both by his rhetoric, which opposes tradition to reason, and (relatedly) by his willingness to accept as legitimate parts of the social order that he wishes to preserve corrosive elements of emerging individualism. Thus Alasdair MacIntyre remarks:
The individualism of modernity could of course find no use for the notion of tradition within its own conceptual scheme except as an adversary notion; it therefore all too willingly abandoned it to the Burkeans, who, faithful to Burke’s own allegiance, tried to combine adherence in politics to a conception of tradition which would vindicate the oligarchical revolution of property of 1688 and adherence in economics to the doctrine and institutions of the free market. The theoretical incoherence of this mis-match did not deprive it of ideological usefulness. But the outcome has been that modern conservatives are for the most part engaged in conserving only older rather than later versions of liberal individualism. Their own core doctrine is as liberal and as individualist as that of self-avowed liberals.
One of the main engines of modern liberal individualism is the economic “system” of capitalism. Burke took the Scottish Enlightenment’s ideological justification of that system almost at face value. Thus, he excoriated the Pope for applying the natural law principle of the universal destination of goods in the Papal States:
Certain of the Pope’s territories, from whence the city of Rome is supplied, being obliged to furnish Rome and the granaries of his Holiness with corn at a certain price, that part of the papal territories is utterly ruined…. This preserves quiet among the numerous poor, idle, and naturally mutinous people, of a very great capital. But the quiet of the town is purchased by the ruin of the country, and the ultimate wretchedness of both. The next cause which renders this evil incurable, is, the jobs which have grown out of it, and which, in spite of all precautions, would grow out of such things, even under governments far more potent than the feeble authority of the Pope…. I beseech the Government (which I take in the largest sense of the word, comprehending the two Houses of Parliament)… manfully to resist the very first idea, speculative or practical, that it is within the competence of Government, taken as Government, or even of the rich, as rich, to supply to the poor, those necessaries which it has pleased the Divine Providence for a while to withhold from them. We, the people, ought to be made sensible, that it is not in breaking the laws of commerce, which are the laws of nature, and consequently the laws of God, that we are to place our hope of softening the Divine displeasure to remove any calamity under which we suffer, or which hangs over us.
This appalling passage is a tragic counterpart to the Hastings speech: here natural law is perverted into an ideological justification for withholding the necessities of life from the poor.
In uniting those disparate elements, Burke is the true forerunner of a “conservative” jurist such as Roberts, who, in weighing the natural law prohibition on taking innocent human life against the “liberal” right of mothers to self-determination, throws up his hands and declares the two “interests” to be incommensurable:
In this context, courts applying a balancing test would be asked in essence to weigh the State’s interests in “protecting the potentiality of human life” and the health of the woman, on the one hand, against the woman’s liberty interest in defining her “own concept of existence, of meaning, of the universe, and of the mystery of human life” on the other… There is no plausible sense in which anyone, let alone this Court, could objectively assign weight to such imponderable values and no meaningful way to compare them if there were. Attempting to do so would be like “judging whether a particular line is longer than a particular rock is heavy.”
A jurisprudence truly dedicated to the “one great, immutable, preëxistent law” and to the wisdom of “good and constitutional times” must abandon Burke for more reliable guides.