It appears that the originalist position in the Dobbs case is to remove the federal government from the debate over abortion and return the matter to the states. I have recently criticized this view as morally incoherent, relying on the Lincoln-Douglas Debates. What I have called “Little Giant Constitutionalism,” in honor of Stephen Douglas’s popular sovereignty, which the originalists in Dobbs echo, is not an answer to a moral crisis. However, there are, I think, other grounds to critique the originalist position in Dobbs—grounds drawn from a surprising source: Carl Schmitt.
I have on several occasions written about Carl Schmitt’s 1960 essay, The Tyranny of Values, which he expanded in 1967 with a lengthy introduction. It is, I think, one of the essential texts for understanding the world in 2021. Value for Schmitt (echoing Martin Heidegger) was an ersatz—for virtue, for the natural law, indeed even for the metaphysical. In Schmitt’s genealogy, the replacement of these concepts by value is fundamentally a nineteenth-century response to scientific positivism. Unfortunately, Schmitt demonstrated, despite the intentions of such a replacement, the logic of value leads to the war of all against all.
The unmediated enforcement of values—and values always must be enforced to be valid—is total war. Schmitt put it like this: “The non-value has no right with regard to the value, and for the enactment of the highest value no price is too high. Here then there are, by consequence, only annihilator and annihilated.” In 1960, Schmitt was appalled by the specter of scientific weapons. In 2021, one finds that technology allows much less concretely destructive enforcement of values—cities are not flattened—but only because the bearer of non-values can be made a non-person, given no right or quarter, without recourse to such weapons.
One of the reasons I find The Tyranny of Values so compelling is that it seems to provide the clearest account for the constant struggle in online spaces, in academic and corporate spaces, and now in some government spaces over any number of ideas. These ideas are taken for the most part as values and fall into the circuit of value-enforcement described by Schmitt. What is cancellation but the enforcement of values on the bearers of non-values? The tyranny of values, the consequences of modern value philosophy, described by Schmitt explains, I think almost perfectly, the merciless, constant struggle against the bearers of non-values by the bearers of the highest values.
One finds Schmitt’s notion of value philosophy and the consequences of values in other places, though. Schmitt’s essay was subtitled Reflections of a Jurist on Value Philosophy and the juristic dimension preoccupied him. One can find this juristic dimension even today and even in the United States. Originalism, for example, was, I think, in part a response to the value-enforcement of the Warren Court. Robert Bork’s seminal 1971 Indiana Law Journal essay, one of the foundational texts of originalism, argues that the Warren Court had imperiled its neutrality and therefore its legitimacy by getting into the business of enforcing certain values in an immediate way. Originalism becomes a way of restraining the enforcement of value. We can short-circuit the war of all against all that the logic of values entails, the originalist argues, by adopting putatively neutral principles based upon the history of the Constitution.
Of course, one ought to pause for a moment at the idea of history conceived in this sense. Charles de Koninck, in a 1940 speech to the American Catholic Philosophical Association, The Principle of the New Order, which is usually bound up with his The Primacy of the Common Good Against the Personalists, lacerated the concept of a scientific history. In De Koninck’s account, the idea of a history divorced from prudence, from practical wisdom, and dissolved into objectivity regardless of the subjective dispositions of the historian is ordered to the emancipation of man considered purely as man. In other words, the idea of a historian judging historical events objectively, through mere knowledge, without considering the rectitude of his own appetites is another step on the road to the emancipation of man as pure artifex and the exaltation of the practical over the speculative. This is not a happy development by any stretch of the imagination.
One does not imagine that the advocates of a scientific study of history—especially as a source for neutral principles to restrain the unmediated enforcement of value by judges—would be altogether cheered to hear of the “profound unity” between such an approach to history and Marxism. Yet De Koninck makes the unanswerable case that such a view of history comes from man turning away from the contemplation of things better than man toward his powers that are most properly his own. All of this, De Koninck shows, is ordered toward the Marxist emancipation of man as man, the exaltation of the unformedness of man. All of this is to say that the philosophical standing and consequences of this modern view of history are almost always overlooked.
At any rate, Schmitt argued that it was the role of the legislator, and not just any legislator, to restrain the “terror” of the unmediated, automatic enforcement of values through laws. No one, Schmitt argues, but the legislator can do this. If the legislator abdicates this supremely difficult and supremely important role, “stopgaps” might arise, “which more or less swiftly become the sacrifices of their thankless role.” By the same token, judges should be very careful, Schmitt contends, before getting into the business of making values valid. To do it thoughtlessly, without understanding what value philosophy entails, is awfully dangerous, as it opens the door to the tyranny of values and the war of all against all. At a certain point, one might think that originalism, especially in the context of the Dobbs case, heeds Schmitt’s warning. I am not so sure.
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Roe v. Wade and Planned Parenthood v. Casey represent attempts by jurists to engage in the unmediated, automatic enforcement of values. The well-known quote from the plurality opinion in Casey reveals the extent to which that opinion represents the unmediated enforcement of value: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992) (joint opinion of O’Connor, Kennedy, Souter, JJ.). Self-definition is, in the account of the Casey majority, the highest value, which must be made valid through enforcement.
It is perhaps worth noting, at the risk of digressing into distraction, that De Koninck included an appendix on “personal fulfillment” to The Principle of the New Order. It is worth reading it as an answer to the Casey plurality from the Aristotelian-Thomistic tradition, not the modern war of values. For example, De Koninck observes that “[i]t is entirely consistent with humanism to see the first roots, the fundamental reason, for the social character of man not in the common good but in the poetic nature of the individual, in the need to express oneself and speak oneself to others under the pressure of an interior superabundance of pure self.” The terrible consequences of such a view are clear: “In short, as for myself, your reason for being is so that you might participate in my personal life.” We are, I think, compelled to agree with Alasdair MacIntyre once again about Charles de Koninck’s penetrating insight, which has been overlooked by many to our great peril.
The following thirty years have demonstrated the dangers of judges getting into value-enforcement. Instead of settling the matter of abortion through a “legally principled decision under circumstances in which [its] principled character is sufficiently plausible to be accepted by the Nation,” Casey, 505 U.S. at 866 (joint opinion), the Supreme Court became the forum for each sides of the abortion debate to attempt to enforce their values on the other, which necessarily entailed a majority of the Court enforcing its values on the whole country. And, as Schmitt warned, for the highest value, the highest price is not too high. No one can say that the unity and order of the United States has been improved by the Casey decision.
Seen in this light, we are forced to agree with Schmitt. When judges make values valid without a clear understanding of the philosophy of value, the consequences are frightening. The plurality’s vision of the highest value has been contested and revalued and nullified since 1992. We have had thirty years of national debate without any clear resolution and with increasing fervor on both sides. Into this situation, the originalists offer, through Dobbs, a way out for the Court. Overrule Roe and Casey and hold that the Constitution is silent on abortion. It is, therefore, a matter for the states. The Court can live up to Robert Bork’s vision—a neutral principle can restrain the immediate enforcement of value and restore the Court’s legitimacy.
However, Schmitt would say that only a legislator, and no ordinary legislator, can rectify this situation. Perhaps the Court, in an act of extraordinary jurisprudence, will adopt the personhood argument set forth by John Finnis, Robert P. George, and Josh Craddock (among others), and hold that the Fourteenth Amendment represents that legislative act. Maybe few would buy this originalist argument and instead take it as an act of legislation. But in the confused little-c constitution of 2021, there is no obvious reason why the Supreme Court could not step into the role of a Solon and hand down a law intended once and for all to restrain the enforcement of value. But this seems unlikely. Most originalists do not agree with Finnis, George, and Craddock and prefer the idea that the Constitution is silent on this point. Therefore, the states are left to work it out for themselves.
And this is the problem. We see already that this measure, which is a stopgap measure, will fail as Schmitt tells us that all stopgaps must fail. Already we hear that Gavin Newsom, governor of California, and other leading politicians in that state intend to make California an abortion “sanctuary” if the Supreme Court overturns Roe and Casey. This means in concrete terms that California will invite women who live in states where abortion is banned to come to California for the sake of having an abortion, using some of its $31 billion budget surplus to subsidize procedures, travel, and lodging to ensure access to abortion for those women. This too is the immediate enforcement of value, and not merely in the territorial confines of California.
And so on and so forth. Other states, inspired by California, may adopt similar proposals, even if they are not sitting on such reserves of cash. After all, the highest price is not too high a price to pay for the highest value. No doubt states on the right will come up with competing public policy proposals to try to make abortion less attractive for their citizens. Ryan T. Anderson, president of the influential Ethics and Public Policy Center, has said as much. There is no reason why they could not try to enforce these values on California through some mechanism. Already the familiar pair emerges: value/non-value. The inevitable consequences cannot be far behind.
The attempt to escape the tyranny of values through the ostensibly neutral principles of originalism is doomed to fail. It is in fact not really even an attempt, so much as a change of standpoint. The process of valuing and devaluing and revaluing continues. The values must be made valid and so they will be in fifty statehouses and fifty state supreme courts, to say nothing of the attempts to resurrect Roe and Casey through federal legislation. The terror of the unmediated enforcement of values will stalk on.