National Affairs Rory Leishman

National Affairs Rory Leishman

In a widely acclaimed new book, Sex and the Constitution, Geoffrey R. Stone, former dean of law at the University of Chicago, commends the Supreme Court of the United States for revising the laws and the Constitution to conform with contemporary values.

Laurence H. Tribe, professor of law at Harvard University, lauds Sex and the Constitution as a “masterpiece” and a “magisterial font of wisdom.” Cass R. Sunstein, another Harvard law professor, is no less enthusiastic: he commends Stone’s book as, “magnificent and monumental – a stunning blend of dispassionate analysis and deep moral conviction.”

Really? While Stone expresses deep moral convictions in support of legalized pornography, abortion on demand, and same-sex “marriage” in Sex and the Constitution, the book is hardly a model of dispassionate analysis. To the contrary, it is riddled with prejudice against faithful Christians.

A prime target of the book is President Ronald Reagan, whom Stone accuses of securing the support of Catholics and Evangelicals, by “rejecting any thought of devoting government time or money” to AIDS research. “Rather than invest federal funds in medical research or launch a public health campaign to address the AIDS epidemic, the Reagan White House turned its back on the problem and allowed the tragedy ‘to spread unchecked.’”

These allegations are patently false. At a news conference on September 18, 1985, Reagan pointed out that his administration had appropriated half a billion dollars to AIDS research. “So this,” he noted, “is a top priority for us.”

Stone also alleges in Sex and the Constitution that the Catholic Church continued to teach in the 1960s that abortion is “always and unequivocally forbidden, even when necessary to save the life of the woman.” As evidence, he claims that Pope Paul VI decreed in his 1968 encyclical Humane Vitae that “‘abortion, even for therapeutic reasons,’ is ‘absolutely excluded’.”

That is incorrect. In the full passage at issue, Pope Paul reaffirmed the traditional teaching of the Church: “All direct abortion, even for therapeutic reasons, [is] to be absolutely excluded as lawful means of regulating the number of children.” Neither Paul VI nor any other Pope has ever forbidden surgery for ectopic pregnancies that are intended to save the life of the mother.

In Sex and the Constitution, Stone repeats the clearly false accusation which he first made in 2007 that Justice Antonin Scalia and four other Catholic Supreme Court judges had violated the separation of church and state by improperly allowing their Catholic views on abortion to influence their decision in Gonzles v. Carhart, 2007, to uphold the constitutional validity of a federal statute banning partial-birth abortions.

Scalia was justifiably furious. In a public response, he pointed out that as a judge and a scholar, he had long maintained that in every case, a judge, no matter what his personal opinions on faith, morality, and public policy, should uphold the law and the Constitution as enacted and originally understood.

By these criteria, Scalia and his Supreme Court colleagues were obviously right in Carhart to uphold the Partial-Birth Abortion Ban Act just as the majority of the Court was plainly wrong in Roe v. Wade, 1973, to find that the Constitution includes an implicit right to abortion for women. As Scalia explained: “The reality is that the Constitution says nothing about abortion either way and the states are therefore allowed to permit it or to prohibit it.”

Stone, of course, disagrees. He takes the view expressed by Justice Anthony Kennedy in Lawrence, 2003, that judges are not obligated to uphold the law as originally understood, because the framers of the Constitution “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

What this argument ignores is that the framers included a legislative amendment formula in the Constitution. Neither Kennedy, Stone, nor anyone else can cite any evidence that the framers would have condoned the disposition of unelected judges also to amend the law and Constitution.

Yet, time and again, judicial activists in the United States  – as in Canada  – have done just that: They have arbitrarily changed the Constitution through interpretation to impose their personal views on the law in relation to such matters as pornography, abortion on demand, and same-sex “marriage.”

While Stone approves, Scalia was outraged by such judicial misbehaviour. In a scathing dissent from the ruling in Obergefell, 2015, which struck down all laws upholding the traditional definition of marriage, Scalia aptly observed: “A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”