an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Francis Schaeffer/C. Everett Koop documentary film series What Ever Happened to the Human Race? (1979), along with Schaeffer’s earlier documentary How Should We Then Live? (1977), and the books that came out of them (along with Schaeffer’s book A Christian Manifesto (1981)) were seminal in forging the alliance between evangelical and Roman Catholic conservatives embracing the “culture of life,” which now serves as the ideological grounding for the contemporary religious right (the books and films have been re-issued in recent years, and the films are available on DVD – with instructional guides).
Before the late 1970s, most even very conservative evangelicals had no problem with artificial contraception, and, while they might not have been thrilled with it, they took the abortion question to be a Catholic issue. Schaeffer was a critical figure in changing that. These films are hardly single-issue hatchet jobs. In ten, hour-long episodes, in the format of monumental PBS documentaries like Carl Sagan’s Cosmos or Robert McNeil’s The Story of English, How Should We Then Live? surveys the history of western civilization, its religion, philosophy, art, literature, and law. While somewhat shorter (five episodes), What Ever Happened to the Human Race? is even more sophisticated, visually (the director, Francis “Frankie” Schaeffer, Jr., -- after repudiating the Christian Right, became a noted Hollywood director). At the outset of the Reagan administration, these films were screened for Republican members of Congress, and conservative political and church groups nationwide. Schaeffer’s idiosyncratic emphasis on the significance of the Scottish jurist Samuel Rutherford (who taught the Biblical roots of law) to the American Founding, over and above John Locke, was used to construct an alternative understanding of the American Founding, tying the imperative of living by Biblical law to the U.S. Constitution, via a pedigree spotlighting Rutherford's status as a teacher of Princeton’s John Witherspoon, who was himself, in turn, the teacher of “the Constitution’s author” James Madison. It is (as they say) no accident that we now have institutions called The Witherspoon Institute and The Rutherford Institute that play important roles on the religious (and legal/constitutional) right.
The Supreme Court, and law more generally, figure significantly in Francis Schaeffer’s documentaries. Their central teaching is that the absolutes set out in the Bible provide civilization’s only stay against arbitrary law – and the ultimately barbarous proposition that law comes from man (legal positivism), and not God. Without the Bible as our foundation, put otherwise, all is permissible – slavery, genocide ... abortion, and euthanasia. Schaeffer spends a considerable amount of time explaining to his viewers the concept of “sociological law,” in which the word of God is displaced by the arbitrary whims of man -- with consequences that, in the U.S., he argues, have become frighteningly real.
The agents of this move from Biblical absolutes to “sociological law” have been progressive elites, who control the godless, distant, federal bureaucracy (now moving to take over – of all things, health care!), and the federal courts, including, most prominently, the Supreme Court.
In the clip I linked in my previous post, there is a remarkable subliminal flash to the Court during the opening sequence of the documentary film series What Ever Happened to the Human Race? Immediately following the conclusion of this clip, with its image of a junked baby carriage, we see a beautiful little girl strolling with her parents past marble steps, which turn out to be those leading up to the High Court. Schaeffer then appears and teaches a lesson on the steps of the Court on the nature and consequences of sociological law.
Episode three of Whatever Happened to the Human Race? (“Death by Someone Else’s Choice”) is entirely devoted to euthanasia. At one point in this episode, the camera cuts sharply from images of the Pilgrims landing on American shores to an animated song and dance number (to the tune of “Anything Goes”) showing high-spirited doctors on a stage happily vacuuming up fetuses. Suddenly, the pillars of the Supreme Court descend (with the inscription “Equal Justice Under Law” above). We see an animation of dancing -- and masked -- Supreme Court justices wielding gavels attempting to crush men in wheelchairs, who try to flee. The masks are then removed, and the faces of the then-sitting justices are revealed. There is applause, followed by a rousing curtain call, with doctors, nurses, and Supreme Court justices joined in a festive chorus line hand-in-hand with each other – and with Nazi storm troopers .
I confess that I couldn’t help but chuckle when, back during the death panels controversy, President Obama earnestly protested that his critics should read the proposed law, and see for themselves that there was nothing in it at all about death panels. Does this man have political advisors? (I suppose this is the sort of rank ignorance of the Christian Right you get when you don’t have a southerner on the ticket). Of course, if you know anything about that part of the political world (and have seen these films, for example), you know that the real issue is not whether there were death panels in the then-proposed legislation, which is largely irrelevant. The underlying conviction is that, if we allow the federal government to get involved with health care (the Founders, who wrote our Constitution knew better!), in time there will be, or something close enough to it: that is, the government will make life and death choices based, not on God’s teaching, but on “sociological” grounds.
Obama’s proposed rules on contraception – constitutionally and ideologically – sparked precisely the same fears.
To be sure, the compromise position will quiet this issue down a bit, given the fact that almost all sexually active women avail themselves of contraceptives at some point in their lives. But Obama has once again reminded the irate right that, given their legal and constitutional ideology, he is a dangerous man indeed. The President would be a lot better off if he at least understood this, and took it into account, rather than flying blind concerning some fundamentals of the politics of the country he is attempting, ham-handedly, to effectively govern. Posted
by Ken Kersch [link]