The Public Square
(August/September 1994)

Richard John Neuhaus

Copyright (c) 1994 First Things 45 (August/September 1994)

Never Again?

For most people in the West it is possibly the case that the only absolutely unambiguous icon of evil is the Third Reich and the Holocaust. One may argue that there are other instances of evil that should have that status in the popular consciousness, but they don't. It is therefore understandable that we continue to make moral discernments by employing Nazism as an absolute test line separating the discussable from the unspeakable. A new book from Oxford represents such an exercise in discernment, Stefan Kuhl's The Nazi Connection: Eugenics, American Racism, and German National Socialism. It is a short (160 pp.), assiduously documented, and devastating account of the way in which American scientists admired and abetted Nazi schemes of racial eugenics in the 1930s, and how they changed their stories and tried to cover their tracks after 1945 when the full dimensions of the Nazi horror became more widely known.

Kuhl's is a necessary reminder of how very liberal and progressive the advocacy of eugenics was thought to be in the first half of this century. Negative eugenics, the elimination of the "unfit," and positive eugenics, the breeding of "superior stock," were both greatly favored by the enlightened of the day. Even before the Nazis came to power, German scientists and politicians declared their indebtedness to the inspiring example of America's pioneering programs of sterilizing the mentally deficient and criminally prone. The American example is favorably cited in Hitler's Mein Kampf, and in the 1930s he wrote admiring letters to prominent American scientists who fully reciprocated his sentiments. Oliver Wendell Holmes had written in a notorious court decision that "three generations of imbeciles is enough," and it was this "realistic" approach of the Americans that German writers lifted up in unfavorable contrast to what they criticized as the dilatory ways of German scientists and policy makers. Come the Third Reich and the world would learn the new meaning of realism.

The leaders of some of the most distinguished universities and research institutions in America were ardently courted by the Nazis. The 550th anniversary of the University of Heidelberg in 1936 was marked by the bestowing of honorary doctorates on prominent American eugenicists, including Foster Kennedy, a psychiatrist and major figure in the Euthanasia Society of the United States until he broke with the society because it was squeamish about advocating the involuntary and systematic extermination of the mentally and physically unfit. In the eyes of a good many American scientists, the Germans would become the model of a rational determination that refused to be inhibited by sentimental concern for the weak who were allegedly jeopardizing the future of the race.

As useful as Kuhl's study is, there are disappointing omissions and moments of curious reticence. One suspects that Kuhl, a German academic, was too well coached by some of the American advisers whom he thanks in his introduction. In any event, he steers clear of the turbulent waters surrounding some of the contemporary questions most pertinent to his subject. By organizing his interpretation around scientists and "American racism," he severely narrows the focus to include chiefly those scientists who espoused theories that today we would call racist. When it comes to commenting on the contemporary significance of his story, this leaves him with a handful of villains on the kooky margins of scientific and political discourse. His own account makes it clear, however, that most of the American scientists and public policy experts involved were too savvy to make an explicitly racialist argument for eugenics. While racial overtones were almost everywhere present, the formal advocacy was usually framed in terms of the fitness or unfitness not of racial groups but of individuals.

Then too, there is no attention paid the campaign for birth and population control during the period studied. Margaret Sanger, the patron saint of Planned Parenthood, is not mentioned even once, although her views (often explicitly racial) closely paralleled those of the eugenicists, and the organizations pressing this common agenda had overlapping leadership and coordinated programs. One might leave the Kuhl book with the impression that the story he relates has little to do with today, except for some fringe racists and some generalized cautions about the moral obtuseness of scientific expertise. In fact, today's disputes over abortion, euthanasia, fetal experimentation, and population control are on a continuum with the scientific culture of death examined by Stefan Kuhl. He does, almost in passing, note the extraordinary role of the Rockefeller Foundation in pushing the eugenics agenda from the start. Rockefeller funded numerous conferences and research projects that were a great boost to Nazi-American collaboration, and the role of the foundation was generously appreciated by the Germans for giving their efforts international respectability.

Today Rockefeller is joined by Ford, MacArthur, and other megaphilanthropies that, together with a number of Western governments, pour hundreds of millions of dollars per year into promoting sterilization, abortion, and other measures aimed at limiting the fecundity of the poor and disadvantaged. All of this is done under the rubric of "population control," but it is in fact a massive exercise in negative eugenics. The racial, cultural, and economic presuppositions undergirding it are usually thinly disguised, and sometimes openly admitted. As Nicholas Eberstadt's thorough examination demonstrates (First Things, January 1994), population control is ideology disguised as science. There is no scientific measure of "overpopulation," but there is a powerful and ideologically driven dread of lesser breeds that threaten our advantaged way of life and, presumably, the planetary balance.

We Americans are given to smugly assuring ourselves that "It can't happen here." And of course the full horror of something like the Third Reich has not happened here and, God willing, will not. What has happened here, as Stefan Kuhl so trenchantly demonstrates, is that many of the "brightest and best" of the American scientific and public policy community warmly endorsed the ideas, and some of the practices, that gave the world the Holocaust. After 1945 they drew back in repugnance from the consequences of their ideas but, with slight semantic changes, they continued and they continue to advance the same ideas. One of the prosecutors at Nuremberg explained how people could act so savagely: "There is only one step to take. You may not think it possible to take it; but I assure you that men I thought decent men did take it. You have only to decide that one group of human beings have lost their human rights." As a polity, the United States has long since taken that step with respect to unborn children. The proponents of euthanasia urge upon us further steps in deciding that those who cannot effectively assert their rights have no rights. At Nuremberg the prosecution argued that the killing programs unfolded quite predictably from one thing to another, that the killing of the six-millionth Jew was set in motion by the morphine overdose given the first harelipped child.

Most of us rebel against the drawing of any analogies between ourselves and the Nazis. That is understandable. The rebellion is rooted in part in our conceit that we are not capable of such great evil. It is rooted also in an entirely reasonable appreciation of the differences between our circumstance-culturally, politically, economically-and that of Germany in the 1930s. But our perception of reality is distorted by making Nazism the test of evil. It is as though we can comfort ourselves that "it" is not happening here because there is no American Auschwitz and nobody is proposing the extermination of millions of Jews, gypsies, and others officially classified as subhuman.

So we allow, and even provide government subsidy for, the killing of 1.6 million unborn children each year. That, we are told, is no analogy with the Nazis because they prohibited abortion, at least for the socially desirable. So, moreover, it is open season for fetal experimentation, fetal farming, and the use of aborted corpses for transplants. That, we are told, is not comparable to doing the same thing with born children and grown-ups-and of course it both is and is not the same thing. It is not the same thing chiefly because we have decided that a group of human beings have no rights. So, yet further, the incidence of involuntary euthanasia (killing people who do not want to be killed) may one day reach the level that it is today in the Netherlands. That would be many thousands of killings per year. Even then, we will be told, that is nowhere near the scale of the Holocaust and, anyway, many of those people might want to be killed if they only knew what was best for them.

By making the Holocaust the measure of evil, we set an unreasonably high standard, so to speak. Whatever we have done and now do and may do in the future, it is certainly not that bad. It is as though we were to take a somewhat relaxed view of murderers who operate on a scale that falls short of Charles Manson or Jeffrey Dahmer. But then we remember the rabbinic wisdom that to save one life is to save the world; and its obverse, to kill one life is to kill the world. Not literally, of course, but morally, which is much more important. Genocide began with the first morphine overdose given a harelipped baby. Stefan Kuhl's The Nazi Connection documents much more than its author knows, or at least much more than he says. It makes disturbingly clear that many of the most respectable, most influential, and most progressive scientific minds of this century laid the intellectual and moral groundwork on which the Nazis built, and cheered them on as they were building.

Later, most of these Nazi sympathizers would adamantly insist that that is not what they had meant, that is not what they meant at all. But the ideas are what matter, and in many cases they did not and have not disowned the ideas. The word "eugenics" does not appear in the annual report of the Rockefeller Foundation, but it does not take a cryptologist to recognize the euphemisms. "It" assumes many forms. While we work ourselves up into a fine heat shouting "Never again!" it is happening again.

Like Father Like Son, Almost

On a more personal note, but one not unrelated to the concerns addressed in these pages, my sister Mildred has been sorting through the heaps of letters, photos, and family oddments accumulated by Mom before she moved to the nursing home a few months ago at age ninety-two. Mildred has been mailing packets of selected materials to the eight children, and I am surprised to be learning things about my parents different from what I thought I knew. As with most small children, I suppose, I was endlessly fascinated by my parents' stories about "the olden days," meaning mainly the mid-1920s to the mid-1930s, the decade before my birth. Years ago I wrote out a reflection by a Llewelyn Powys and recently came across it again: "The years lived by our father before he begot us have upon them a wonder that cannot easily be matched. . . . In some dim way we share in those adventures of this mortal who not so long ago moved over the face of the earth like a god to call us up out of the deep."

The packet reveals that I wrote more often to my folks than I had remembered, in more detail, and more affectionately. Dad died at age seventy-two in 1972, and I have often thought that the life I have lived is in very large part his, but that is a long and complicated story that need not delay us here. More to the point is a document in the packet sent by Mim that is dated May 14, 1941. It is a paper given by the Rev. C. H. Neuhaus to the Ontario District Pastoral Conference, and in it he challenges a proposal by the Canadian government for the moral and religious education of children in the public schools. Apparently the paper met with the approval of his colleagues in the ministerium of the Lutheran Church-Missouri Synod and was given some wider distribution in Canadian church circles. It is, so far as I know, the only extensive statement by Dad on religion and public policy, and this son cannot read it without entertaining a question about how it is that arguments and dispositions are transmitted from one generation to another. I very much doubt that it is in the genes. Certainly Dad and I had not discussed these matters in any detail, in fact hardly at all, and yet I discover more than fifty years later that-with a smidgen of difference here and there-his arguments are mine, and that the issues he addressed in 1941 are not all that different from those being disputed in 1994.

It was wartime of course, Canada having gone into it with Britain in 1939, and the government, as is the wont of governments, wanted religion to rally more fervently around the flag. (That was when Canada still had a flag, before Prime Minister Lester Pearson fobbed off on the long- suffering Canadians a red maple leaf contrivance that has all the gravitas of a supermarket logo.) The government proposed putting religion courses into the public schools, such courses to be taught by the several clergymen of each school district. Keep in mind that in Ontario public schools were and are distinct from "separate" schools, the latter being Catholic schools supported by public funds. For all practical purposes, public schools were Protestant schools-Protestant being defined as non-Catholic. Dad thought the government proposal a very bad idea, and in these nine now yellowed single-spaced pages he sets out twelve reasons for his opposition. (He was a most methodical man.) I will but touch on some highlights.

First, he contended that the climate of wartime was not conducive to "sober and calm deliberation" of such an important question. If the proposal must be considered, it should be put off until after the war. Meanwhile, those clergy who favored the proposal should not exploit their positions of influence. As becomes evident, he had chiefly in mind the clergy of the Anglican Church and the United Church of Canada, the mainline Protestant denominations toward which he harbored some suspicion. "Clergymen," he wrote, "are not 'a superior form of humanity.' 'Good intentions' on their part are no more worthy of special consideration in a Democracy than are the 'good intentions' of an atheist. The moment you depart from this ideal of Democracy you cease being democratic and are preparing the soil for future bureaucracy and dictatorship." It is noteworthy that throughout the paper "democracy" is upper case and underlined, which turns out to be no mere stylistic eccentricity.

Religious instruction in the public schools, Dad argued, "is one step toward State Religion." His animus toward state religion was grounded in the experience of the Saxons who fled the state church of Prussia and founded the Missouri Synod in 1847. It was also based in his pastoral experience with immigrants from state churches who produced their church tax receipts as bona fides of their good standing as Lutheran Christians. The religious instruction proposal was indeed a small step, but Dad urged that it be seen in the light of the ambitions of some to establish a national church. He made clear that he was not speaking of the Roman Catholic Church, for which he had considerable respect. "I mean two large Protestant denominations in Canada. Members and clergy of the one have made the impression on me that they believe their church should be The Official Church by right of inheritance or by virtue of the former special recognition by the British Crown. The other large body is on record with these words, 'that this settlement of unity may in due time, as far as Canada is concerned, take shape in a Church which may fittingly be described as national.'" The first denomination was, of course, the Anglican, and the second the United Church of Canada, which was formed by a merger of Presbyterians, Methodists, and some others in the 1920s. In a Democracy, Dad said, they can preach their ideas from their denominational housetops, but they should not be given access to "the housetop of tax-supported public schools."

Moreover, clergy cannot teach, as was proposed by the government, a nondenominational religion. Dad wondered about the integrity of clergy who would go along with such a plan: "Will he not feel that he is a traitor to his own beliefs and to the church to which he has bound himself whenever he answers questions in such a manner as to give equal value to opposite views and interpretations?" Then, sounding for all the world like a premature postmodernist attacking putatively universal perspectives, Dad wrote, "My conviction is that, strictly speaking, there is no such thing as nondenominational religion. If you disagree in some point with all the existing denominations then you form a new denomination of at least one member, whether you give your denomination a name or not. To be without opinion or belief is simply not human." He had on occasion tried, he said, to present evenhandedly conflicting interpretations of matters of importance, and it was his consistent experience that, despite his efforts, his own convictions asserted themselves "most unexpectedly." He did not have much confidence that most clergy would even try to make the effort.

He also opposed the government scheme because it would be "a further hindrance to an eventual Democratic settlement of the problem now existing between public and separate schools." His "dream" was that one day all school taxes would go into a common fund from which either all churches or no church could get support for their own schools. "At present the state's money is being used to teach only one religion in one church's schools." He was not opposed to the Catholic separate schools; he simply wanted other churches to have the same opportunity. The scheme for teaching in the public schools a religion "designed to suit Christian, Jew, and atheist" would delay a more just arrangement by creating a delusion among the majority Protestants that the question of religious instruction had been satisfactorily resolved, when in fact the religion being taught would satisfy almost nobody's idea of authentic religion.

Such instruction would, however, be identifiably Christian in some watered-down sense of the term, and that poses problems for non- Christians, no matter how small a minority they might be. The government scheme allowed that non-Christian children could be excused from religious instruction, but Dad thought that not nearly enough. He imagined a Jewish child thinking this way: "My father is a law-abiding citizen of this country which calls itself a Democracy. He is supposed to have the same rights and privileges as any other citizen of the land. When he pays his taxes the government never gives him a rebate because I do not get our kind of religion in the public schools. They say to my father that the religious instruction must be taken from the Christian Bible. If my father complains that this is not fair, he is told, 'If you don't like our arrangement, your boy can stay out during that time.' Queer thing this Democracy. You belong to it part of the time and part of the time you don't really belong." Dad opines, "Even a small neighborhood gang of boys demonstrates the true spirit of Democracy better than that. Will such a gang invoke the majority rule and insist on cooking a rabbit stew on Friday when they know that only one member, Mickey O'Brien, is not to eat meat on Friday?"

Moreover, an hour or two a week of such religious instruction would not be able to compete with the "pseudo-science" of secularism that is otherwise taught in the schools. "Which theory is going to be upheld, that monkeys became evolutionists or that evolutionists became monkeys?" Then too, sound moral instruction is unlikely since the clergy do not agree on the nature of sin or even on what is a sin. Among the examples he cites: "Will one condemn the modern mixed dance as sin and another classify it as highly desirable rhythmic recreation? Will one try to make the children believe that the Sabbath-laws of the Old Testament are still in force while another will say that they were abolished when Christ came? Will one present moderate drinking as a crime and another insist that only drunkenness is sin?" (The Missouri Synod was against dancing, indifferent to Sabbath laws, and positively disposed toward moderate drinking, with moderation very generously defined.)

Dad also opposed the government scheme because he thought many clergy did not "stand for true principles of patriotism." He had the "rabid pacifists" of the liberal churches in mind, but he also worried about those who "taught a shallow, supercilious, hysterical brand of patriotism [that swings] too far towards the opposite extreme." He observed, "Just being a member of the clergy was no guarantee for a man's patriotism in the last war [World War I] and certainly is not so today." One detects a little needling of the establishmentarian mainline going on here. In World War I, German Lutherans were suspected of having a "dual loyalty," if they were not actually traitors. There were some instances of violence against Lutheran pastors, and almost everywhere there was pressure to drop German language services and other evidences of "foreignness." In 1941, by contrast, this German Lutheran pastor presents himself as the guardian of "true patriotism" against the mainline pacifists, on the one hand, and jingoists, on the other. Dad knew a thing or two about positioning oneself to forensic advantage.

In his most detailed objection to the government proposal, he excoriates the churches for evading their responsibility for the religious education of their children. Religious instruction in the public schools is a deceptively easy way out. "How disgracefully cheap is this arrangement! Cheapness in religious instruction has for so long been in vogue among the churches that the temptation to get still more even cheaper instruction by putting religion into the public schools is all but irresistible to some." Then, in his twelfth objection, he returns to the question of fairness. "There is a minority in our Democracy which prefers not to be bothered with our religion. For us to try to force religion on them in a public tax-supported school because we claim it is good for them may have the best intentions behind it, but nevertheless it is dangerous reasoning in a Democracy. . . . In a Democracy we love to speak of our sportsmanship. If you heard a person talking about shooting a fine buck and knew all the while that he had first set a snare for that buck to make sure that it couldn't get away, you'd be thoroughly disgusted with that man." The school truancy laws, he suggested, were like that snare, giving clergy a captive audience for their instruction. "I do not believe," he said in summary, "that this is becoming to a Democracy." (The analogy of children as targets should perhaps not be pressed too far, but Dad was an almost obsessive hunter and the analogy no doubt seemed to him quite natural.)

I suggested earlier that, mutatis mutandis, Dad's attitudes and arguments then were pretty close to mine now. The suspicion of civil religion or any religion under government auspices, the need for undiluted Christian witness, the imperative to respect differences, the devotion to democratic fairness, the impossibility of neutrality in matters of religious and moral consequence-all these seem as pertinent today as they were in the disputes of 1941. His "dream" of a common public fund from which people could get support for the schools of their choice is today's advocacy of vouchers and other measures to give parents real decision-making power in education. I suppose some readers might even detect a connection between Dad's objection to the pretensions of mainline churches and this writer's occasional criticisms of oldline liberalism in this country. If there is such a connection, it is not in the genes; it is in the continuing confusions of liberal Protestantism. Dad, who was by his seminary classmates called "Pope" Neuhaus, was a man of rather definite views. That, of course, is another difference between father and son.

As it happened, the scheme that Dad was protesting did go through, although he refused to participate in it. In my grade school we had Canon Phillips, the Anglican rector, come in once a week for our spiritual edification. Out of hearing, we students referred to him as "Canonball Phillips" and thought him awfully dull. I remember thinking him not too sharp as well, since he always got the numbering of the Ten Commandments wrong (Lutherans and Catholics count them the right way). He was a soft-spoken and no doubt quite admirable person, but Canon Phillips made no discernible impact on my spiritual consciousness, and certainly posed no serious religious alternative to a boy steeped in the true faith as promulgated by the Missouri Synod. The Catholics were something else; they were seriously different. In religious education, and perhaps in other respects, Dad wanted what the Catholics had. I expect he and Father Harrington of St. John the Baptist talked about such matters on their long deer hunting expeditions up in Algonquin country. They almost always came back with a fine buck or doe, usually with two. And I am sure they set no snares.

The President's Words and Actions

We had thought to offer a few excerpts from a letter sent to President Clinton by eleven very prominent leaders in American evangelicalism, but the letter is so nicely put together that we gave up on that idea. Here's the whole thing:

"Dear Mr. President,

"We are sending you this open letter to express our deep concern over the State Department's cable last month to all diplomatic and consular posts asking them to pressure foreign governments to support greater abortion availability in the United Nations population-stabilization plan. The cable described access to legal abortion as a 'fundamental right of all women.'

"Mr. President, this is an unprecedented misuse of our diplomatic corps for political ends. We can think of no other time in history when American embassies were used to promote a domestic social agenda-particularly one that has bitterly divided our own people for more than two decades. The majority of Americans do not accept abortion as a 'fundamental right.'

"Moreover, the countries that the State Department is pressuring to embrace liberalized abortion policies, often in violation of their own laws, deeply resent what they rightly regard as cultural imperialism. The citizens of Africa, Asia, Central America, and South America are offended that the United States would urge them to refashion their own social policies to 'look like America.'

"Apart from the moral issue, which we consider paramount, how can we urge greater access to abortion in countries that often do not have antibiotics, ultrasound machines, or even sterile operating rooms? At a press conference on Capitol Hill, Dr. Margaret Ogola from Kenya pointed out that in remote regions of her country, clinics often lack life-saving medications, such as penicillin. If a surgical procedure like abortion were introduced into these regions, the result would be massive infections and death. Surely the United Nations' plan to slow population growth does not include mothers dying on unsafe operating tables.

"Mr. President, we remind you of the words of Mother Teresa that you yourself heard a few weeks ago at the National Prayer Breakfast. This tiny woman has spent her life working among the world's poor and understands their needs far better than any of us do. She said: 'the greatest destroyer of peace today is abortion. . . . Any country that accepts abortion is not teaching the people to love but to use any violence to get what they want.

"In a recent interview with Peggy Wehmeyer of ABC News, you stated, 'I think there are too many abortions in America. I think there should be more adoptions in America.' During your campaign you proclaimed that abortions should be 'safe, legal, and rare.' How can these statements be reconciled with your cable to our embassies, directing them to promote abortions worldwide? How do they square with your recent allocation of federal dollars to agencies that perform or support abortions internationally? A chasm exists between your public pronouncements and the quieter actions of your Administration. We plead with you, Mr. President, not to make the United States an exporter of violence and death. Instead, we urge you to maintain our heritage as a beacon of morality and hope to the poor and suffering of the world.

"We respectfully ask that you direct the State Department to rescind last month's directive pressuring foreign governments to accept abortion on demand. America is at its best when we respect other nations' desire to nurture life, not destroy life.

"Respectfully," (Signed by Charles W. Colson, Dr. Charles Swindoll, Dr. Billy A. Melvin, Dr. William R. Bright, Dr. James C. Dobson, Dr. Edwin Young, Dr. D. James Kennedy, Rev. John M. Perkins, Dr. Joseph M. Stowell, Dr. Paul A. Cedar, Dr. Brandt Gustavson.)

The Constitution vs. the Rule of Judges

A potentially constructive controversy surrounds Harry V. Jaffa's recent book on the Constitution (Original Intent and the Framers of the Constitution: A Disputed Question, Regnery). Jaffa, a constitutional scholar and long a prominent figure in conservative intellectual circles, has taken it upon himself to smite hip and thigh conservatives who do not accept his contention that the Constitution is anchored in the principles of natural law (as in "we hold these truths to be self evident") and should be interpreted in that light. He is particularly harsh, indeed downright disagreeable, in his attacks on Judge Robert Bork, Chief Justice William Rehnquist, and former Attorney General Edwin Meese, but his polemical sweep takes in a host of others who do not subscribe to his version of the "original understanding."

In an extended critique in National Review, Bork pulls out most of the stops in making the case that Jaffa's argument is incoherent, disingenuous, and finally inconsequential. Inconsequential because the main issue that seems to be at stake in Jaffa's disputation is the interpretation of the 1857 Dred Scott decision and Federal jurisdiction with respect to slavery. But, if Jaffa's view is accepted, it would have much wider implications for interpreting the Constitution. Without going into detail, Bork's point is that the Constitution reflects the practical experience of the Founders, and is not the product of a "general theory"-whether the general theory be based on natural law or something else. Bork notes that he has addressed these questions in response to more temperate critics in the pages of First Things (March 1992 and May 1992), and he does not take kindly to Jaffa's accusation that this view of the Constitution makes him a moral relativist. In his personal capacity, says Bork, a judge may be a great moral philosopher, but in the assigned task of interpreting the Constitution he must be a legal positivist who attends to the text and does not impose his own views on what the Constitution actually says.

There are a number of important questions engaged in this dispute. With Jaffa, one might have considerable sympathy for Abraham Lincoln's insistence, at the supreme moment of national crisis, that the Constitution be understood in light of the truths proclaimed in the Declaration of Independence. But there would seem to be no getting around the fact that those truths are not explicitly stated in the Constitution, and it is the Constitution that judges are sworn to uphold. The Constitution is an agreement, and in this respect it is not unlike a contract. Unlike the Declaration, it is not a statement of philosophical principles so much as a reflection of deals struck (on, for example, slavery and state religious establishments). The contract was made within a historical context marked, to be sure, by shared philosophical and religious presuppositions.

Almost all of those involved in the writing and ratification of the Constitution held such presuppositions and, in addition, had a strong sense that destiny, even Providence, was engaged in what they were doing. One might say that the Constitution is a contract within the context of a covenant; an agreement on what will be done in practice in the light of principles and hopes broadly shared. The covenantal sensibility and the general principles can at points help us determine the "original understanding" that informed the Constitution. Theology, philosophy, and moral sensibility form the cognitive "background" of the document, so to speak, but the founders were not entirely agreed on principles and were even less agreed on what principles should mean in practice (slavery being the most obvious instance of disagreement). In the face of significant disagreements, the Constitution is the product of negotiations about the federal polity by which the states would bind themselves. One is impressed in reading the numerous documents in the magnificent two volumes recently issued as The Debate on the Constitution (Library of America) at how very practical and unphilosophical were most of the matters disputed by federalists and antifederalists alike.

The most exigent concerns were for liberty and prosperity. Of course the meaning of liberty, prosperity, and other aspects of the common good invite careful philosophical reflection, but one is struck by how much the founders thought that the philosophical and moral underpinnings could be taken for granted. The debate over the Constitution was very little about the meaning of the constituting ideas and very much about the mechanics of protecting the realities to which those ideas refer. Terms of office, the pros and cons of a standing army, executive prerogatives, the division of functions between houses of Congress, the power of states in federal elections-these and a host of other practical questions preoccupy the founding debates. The Constitution is what came out of this multifaceted and often confused process of dispute and decision. Widely shared philosophical assumptions did not determine every decision. Despite philosophical agreements, many questions could have been decided differently. Personalities, regional anxieties, ambition for office, and numerous other factors all played their part. A later generation may well think that some decisions should have gone the other way. Anticipating that contingency, the Constitution makes provision for its own amendment, and there have been twenty-six of them to date.

To say that the Constitution is a set of stipulated arrangements based on practical experience is not to say that general theory or principles are unimportant. Washington, John Adams, and others among the founders were publicly insistent that this experiment in republican governance could not have been created and cannot be sustained except by a vibrant popular belief in moral principles supported by religion and public virtue. Those principles, however, are not the subject of the Constitution itself. The Constitution provides for such principles to be given full play in the legislative procedures of this representative democracy. It is for legislators, not judges, to invoke moral vision, philosophical argument, and general theory in making the case for the enactment of their proposals. As Judge Bork has persuasively explained in The Tempting of America (1990), activist judges have in recent decades put themselves in the place of the legislature. This illegitimate preemption of power has the ironic result that judges feel free to do what they are forbidden to do while forbidding legislatures to do what they are required to do-namely, make law by reference to moral principle and general theory. Thus, for example, courts impose their notion of the "nonestablishment" of religion in a manner that forces legislatures into a "strict separationism" that ends up with laws requiring religion to retreat wherever government advances.

As the Declaration and other documents of the founding period make unmistakably clear, those responsible for the Constitution believed that there is a "higher law," sometimes expressed in terms of natural law, sometimes in terms of reason and common sense, sometimes more explicitly in terms of biblical revelation. These beliefs are even more pronounced if one takes into account the several state constitutions when trying to understand the historical context of the constitutional process. But the ideational background of the constitutional process is not the Constitution itself. The Constitution itself is notably devoid of philosophical or moral affirmations. This, as the Marxists were fond of saying, is no accident. Those involved in the writing and ratification of the Constitution were eager not to get bogged down in disputation over first principles. They devised a polity of practical arrangements, which arrangements include a judiciary charged with the modest task of making sure that the provisions of the Constitution are not violated. (Indeed, even that statement of the task may be too immodest, since it is not the text of the Constitution but only later experience that established that, for instance, the Supreme Court had the authority to declare laws passed by Congress unconstitutional.)

In recent decades, judges have increasingly acted as though they were appointed to be philosopher kings. Those who criticize this liberal "judicial activism," however, often seem to favor conservative judicial activism. That is, they are against the current crop of philosopher kings not because they act like philosopher kings but because they have the wrong philosophy. In activist literature on the right one frequently encounters the proposal that judges should be appointed who favor "traditional morality," or even that the courts need more "Christian judges." If Bork and those of like mind got it right, this way of thinking is utterly wrongheaded. Among other things, it increases social acceptance of the courts' usurpation of the legislative power. On the bench we need people who, whatever their philosophy on other matters, impose upon themselves self-denying ordinances in the exercise of their authority. In this view, citizens who want laws more in accord with moral truth should direct their energies to the legislature, electing representatives of like mind and holding them accountable to their declared positions. And then citizens can only hope that the laws enacted will not run up against judges who think it is their right, even their duty, to override the judgment of the people's representatives with their allegedly more enlightened understanding of the common good.

Although the terms of debate change from time to time, the questions engaged by Bork and Jaffa (and many others) have been with us for a long time. In our judgment, the Bork understanding of how this constitutional order is supposed to function is convincing. At the same time, there are those who agree with that judgment but who also believe that we have drifted so far from the intention of the founders that there is no going back to the jurisprudence of "original understanding." We have to accept the fact, they say, that the judiciary has become a thoroughly politicized institution and we therefore have no choice but to work politically to replace "their" philosopher kings with "ours." If we must be ruled by judges, they tell us, better that they rule by the dictates of natural law than by the moral relativism and emotivism that currently prevail in the courts. Whether they acknowledge it or not, those who have reached that doleful conclusion would seem to have given up on the American constitutional experiment as a lost cause. People who care about the moral legitimacy of the American regime should not lightly acquiesce in that conclusion.

A Jesuit Awakening

The Superior General of the Society of Jesus, often called the black pope, has written to communicate his dissatisfaction with an item appearing in these pages in the April issue. Father Peter-Hans Kolvenbach asks us to "rectify the damage you have done to the Society's name among your readers by publishing a more accurate account of the Society's commitment to human life in all aspects, including the life of the unborn." Father Kolvenbach is a discerning, devoted, and very personable man whose wishes we are eager to accommodate, but this one may be difficult.

Readers may recall that we had commented favorably on a long letter by Fr. John Conley, a Jesuit at Fordham, that was published in the National Jesuit News. Fr. Conley pointed out that the Society of Jesus had, to say the very least, a very undistinguished record when it comes to addressing the "unspeakable crime" (Vatican Council II) of abortion. More specifically, he criticized the preparatory materials for the General Congregation (GC) of the Society, which is to be held in 1995. In those materials, abortion is barely mentioned, and the few references to the subject are buried in long catalogues of other concerns that appear to have greater priority, ranging from environmentalism, racism, capitalism, women's rights, and drug addiction to illiteracy. Fr. Kolvenbach included with his letter a letter in response to Fr. Conley by Fr. Paul Soukup of Santa Clara, California, which was also published in the National Jesuit News. Fr. Soukup was involved in the preparation of the materials for the GC and, it seems to us, his letter only strengthens Fr. Conley's criticism.

Of the working groups that prepared the materials, Fr. Soukup writes that "the international nature of the Society demanded a certain global perspective that precluded lengthy treatment of even vital local issues." It is exceedingly curious that abortion should in any sense be considered a local issue. "However, within those constraints, more than one group did address the question," writes Fr. Soukup. "My daily notes indicate several discussions about abortion and how we might respond to it. But the sheer volume of other themes and the limited space in the final documents meant that the written comments had to be brief." Fr. Conley's complaint, however, was not that the comments on abortion were brief but that the few passing references to abortion were overwhelmed and relativized by what Fr. Soukup calls "the sheer volume of other themes."

The very muted witness of the Society of Jesus with respect to abortion, we wrote, "is in sharpest contrast with the Second Vatican Council, the public witness of the bishops, and the urgencies that animate the ministry of John Paul II." We regret that there is no reason to withdraw that judgment. Fr. Kolvenbach protests our conclusion "that the Society of Jesus, as distinct from many of its members, has become a net liability as the Catholic Church travels into the Third Millennium." America, the Jesuit magazine published here in New York, also took editorial umbrage at that statement. In fact, however, we did not say that that is our conclusion. We said that "some of those who know the Society well and love it deeply" are reflecting upon "the possibility" that the Society has become such a net liability. We know from numerous conversations, including conversations with distinguished Jesuits, that that question is being asked. Our own conclusion is that all who care about the life and mission of the Catholic Church should pray that the General Congregation of 1995 will witness a great reawakening of the constituting genius of the Society of Jesus. Whether or not that happens will, in very significant part, be indicated by the public urgency of the Society's concern for the children killed and the women exploited by abortion.

While We're At It

Sources: On WCC in Zimbabwe, Christian Century, February 23, 1994. Alex Sanger on DeMoss pro-life ads, Christianity Today, March 7, 1994. On "schism" among U.S. Catholics, Wanderer, March 3, 1994. On ERGO! and euthanasia statistics, Life at Risk, March 1994. Statements on Holocaust denial quoted in Catholic New York, March 24, 1994. Shanker advertisement in New Republic, April 11, 1994. On spineless doctor, personal correspondence. Resignation of Judge Moylan, from personal correspondence. On PAW and "stealth" candidates, Washington Post, May 12, 1994. Cardinal Lustiger on unilateral disarmament, Choosing God-Chosen by God (Ignatius Press). On discrimination policy at Valparaiso University, The Torch, April 22, 1994. Billy Graham quoted on Jews, Wall Street Journal, May 23, 1994. Frank Rich on Nixon and anti-Semitism, New York Times, May 29, 1994. On connections between euthanasia and abortion, Life at Risk, March 1994.