John D. Hagen, Jr.
This past autumn’s Supreme Court confirmation battles could be used as material for a short course in jurisprudence. Lesson One: Roe v. Wade Overshadows Everything (Why does abortion dominate American law and politics to a degree unheard of elsewhere in the world?). Lesson Two: Rights Absolutism (Why do some rights, like Roe’s abortion license, trump all competing considerations?). Lesson Three: Judicial Pre-eminence (Why do judicial appointments become apocalyptic cultural struggles?). These three issues relate to key points in a scholarly critique of American law by Harvard Law School’s Mary Ann Glendon. Her writing embodies an analysis of these three questions.

Glendon is generally recognized as one of America’s foremost Catholic legal scholars. Her analysis of legal issues like these involves key principles of Catholic social thought: the common good, subsidiarity, civic virtue and the overriding value of the human person. Like the Jesuit John Courtney Murray, she shows how such principles harmonize with the ideals of America’s founding and with the American political tradition.

Glendon embodies the Catholic tendency to defy conventional secular categories of left and right. While staunchly pro-life and a cultural conservative in many respects, she also defends the legacy of the New Deal. Her most recent book, A World Made New (2001), in fact, tells the story of Eleanor Roosevelt’s work for international human rights.

Glendon’s Critique of Abortion Law

Glendon’s areas of expertise include comparative law and especially Western European legal systems. She marshaled this expertise in her book Abortion and Divorce in Western Law (1987). There she shows the extremism of Roe v. Wade, as compared to the laws even of permissive societies like the Netherlands and Sweden. Roe (as reaffirmed in Planned Parenthood v. Casey) prohibits any substantial restrictions on abortion until fetal viability, around the sixth month of pregnancy. After viability, abortion still must be allowed for health reasons, as determined by the abortionist, on the broadest possible grounds (emotional, psychological, familial). That is the teaching of Doe v. Bolton, Roe’s lesser-known companion case.

Thus we have, for practical purposes, a rule of abortion-on-demand throughout the full nine months of pregnancy. This is dramatically shown in the partial-birth abortion cases, where courts routinely strike down bans on killing fully formed babies in the birth canal. No other Western nation so maximizes abortion rights as a matter of constitutional law. Nearly all the nations of Western Europe, far more permissive than we are in most respects, restrict abortion in ways that would be forbidden under Roe. Most of them forbid elective abortions after the end of the first trimester. Many impose mandatory counseling and extensive waiting periods.

As Glendon forcefully points out, European nations very rarely refer to abortion as a right. European abortion laws were hammered out through legislative compromise, not imposed by judicial fiat. Thus, even extremely permissive societies like Holland and Sweden recognize moral value in the child in ways that we are forbidden to do.

Glendon thus articulates a compelling paradigm shift on Roe v. Wade. For decades, abortion backers have used the right to choose as a rhetorical hammer to silence debate on Roe. More liberal than Sweden is a rhetorically effective counterpoint. One yearns to see a nominee argue it forthrightly against pro-Roe senators in confirmation debates.

Rights Absolutism

Glendon’s broader critique of American law and society is focused on her signature concept of rights talkinflated notions of individual liberty that trump the common good. As she points out, assertions of rights in our legal and political discourse tend to be absolute and uncompromising. They inhibit dialogue, impede political compromise and denigrate duty and responsibility. Rights absolutism stems from Enlightenment myths of a non-social state of nature. Hobbes, Locke and Rousseau all conceived of man as a lone rights-bearer, a being naturally solitary and insular. This image was in strong contrast to biblical and classical concepts of human nature as essentially social.

Locke promoted ideas of absolute individual property rights, which influenced the English common law and early American jurisprudence. These ideas shaped the Lochner era (1905-37) in U.S. constitutional law. In Lochner v. New York and subsequent cases, the U.S. Supreme Court struck down all sorts of social welfare legislation (minimum wage laws, maximum hour laws, child labor laws and the like) as unconstitutional impositions on individual freedom of contract.

The court abandoned this rights absolutism after its confrontation with Franklin Roosevelt during the Depression. Roosevelt threatened to expand and pack the court’s membership, and the court then stopped striking down New Deal legislation. Thereafter, what Glendon calls the great statutes of the American welfare state took shape through the democratic process.

But rights absolutism was quickly resurrected in other forms. Beginning in the 1950’s, the court constructed a new set of trump-rights to sexual gratification and expressive behavior that transgressed community values. For example, pornography, flag burning, the sale of contraceptives to unmarried people, indecent Web sites on the Internet and, pre-eminently, abortion were essentially placed off limits to democratic debate and control. These new trump-rights frequently were based on the concept of privacya term not found in the Constitution. As Glendon points out, the privacy concept was originally articulated as a defensive paradigm (freedom from surveillance), but then rapidly transformed into an assertive paradigm (freedom to act out one’s desires in defiance of social norms).

Glendon forcefully shows that this left-wing rights talk leads to the same sort of Social Darwinism as does right-wing rights talk. Vulnerable and dependent people are exposed to the law of the jungle. Thus no-fault divorce became what Glendon calls no-responsibility divorce, leaving single female heads of households markedly poorer in America than in other Western countries. And in cases where European countries provide extensive support for pregnant women, American women are left with their absolute abortion right and little else.

Judicial Hegemony

Glendon stresses the relationship between immoderate rights talk, the vast increase in litigation in recent decades and the weakening of democracy. Rights claims are enforced by judges. As more and more social issues pass into the courts, there is less of a role for democratically elected bodies. One consequence of this dynamic is obviousgovernment of the people, by the people, for the people becomes rule by an unelected elite. But Glendon stresses more subtle issues. The democratic process naturally tends toward consensus-building and compromise. Litigation, by contrast, breeds exaggerated claims and typically ends in total victory for one side.

Precisely because of this potential for quick and total victory, interest groups have learned to focus on the courts instead of on the legislatures. Litigation is more efficient and more likely to bring about sweeping declarations of absolute rights. When judges act without restraint, issue activists naturally flock to the courts, and democracy consequently withers.

A Nation Under Lawyers (1994) chronicles this loss of judicial self-restraint. As Glendon notes, the Supreme Court found only two acts of Congress unconstitutional prior to the Civil War. In the common law tradition, judges used to see themselves as incrementally adapting settled principles to new fact situations. Today, many judges see themselves as romantic heroes boldly overturning structures of oppression. With benevolent motives, such judges undermine democracy and its consensus-building habits and skills.

Glendon sharply criticizes academic movements that have encouraged the casting-off of judicial restraint. Postmodernism and critical theory have launched what she refers to as a sustained scholarly attack on the very idea of objectivity. She deplores the knowing smirk with which many scholars contend that there is no such thing as a fact and all rules are radically indeterminate and manipulable. When such relativism fills the law journals, judges are easily tempted to override democratic governance and impose their subjective values.

Seedbeds of Virtue

A leading theme in Glendon’s writing is the importance of intermediate institutions in societyneighborhoods, churches, voluntary associations and the family. Echoing the 19th-century French thinker, Alexis de Tocqueville, she constantly stresses the role of these groups as schools of citizenship and seedbeds of civic virtue. They teach cooperation, empathy, sacrifice, responsible use of freedom and concern for the common good. She frequently speaks of such groups in environmental terms, and warns that the fragile ecology that they embody is weakening. Mass culture, bureaucracy and global corporations all tend to stifle them. This speeds the atrophy of democratic skills and habits already set in progress by activist courts.

Glendon’s emphasis on local communities of memory and mutual aid is classically Catholic. It reflects the key principles of solidarity and subsidiarity and stands in contrast to the rights-focused individualism of both the cultural left and the cultural right.

A striking summation of Glendon’s outlook is to be found in the quotation she selected as the heading for her Web site (www.glendonbooks.com). It is taken from the Jesuit theologian Bernard Lonergan: There is bound to be formed a solid right that is determined to live in a world that no longer exists. There is bound to be formed a scattered left, captivated by now this, now that new development, exploring now this and now that new possibility. But what will endure is a perhaps not numerous center, big enough to be at home in both the old and the new, painstaking enough to work out one by one the transitions to be made, strong enough to refuse half measures and insist on complete solutions even though it has to wait.

John D. Hagen Jr., an attorney in Minneapolis, Minn., has served as a Vista lawyer for Native Americans, and presently does pro bono work for crisis pregnancy centers.