“Sir William.” That’s how my late husband often began memos to Bill Buckley, and scads of memos there were, after Jim McFadden’s cancer took his voice in 1996. Most though began “Dear Bill,” and dear he was to our family—godfather to one of our daughters—and to all of us here. I suppose the Human Life Foundation and its Review could have happened some other way; maybe the Cold War could have ended without Ronald Reagan and JP II (and maybe Reagan could have happened without WFB and National Review) but it’s reasonable to believe—as we realized again when we got the news about Bill’s death—that without him there wouldn’t be what’s been called “the flagship of the anti-abortion movement.”

—Faith Abbott McFadden, Winter 2008 Human Life Review

Dear Jim:

You are aware, although many of your readers may not be, that I have had nothing whatever to do with the Human Life Review. Notwithstanding that we are professional colleagues and very old friends, The Human Life Review was an idea, journalistic, spiritual, and administrative, entirely your own. You did not consult me about it, ask my approval, or my help. I have never read an issue of it that contains a single article I had seen before. It is yours, and on this anniversary of it, I wish to say these words of reflection which you may or may not wish to pass along.

On a recent “Firing Line” featuring two experienced lawyers, one of them an official of the American Civil Liberties Union, the other a professor at the Yale Law School, we devoted the hour to reflections on the Supreme Court and the old issue of activism versus strict constructionism. I ventured the opinion, on which I had elaborated in my book Four Reforms, that the Supreme Court has become something of a secular ethical tribunal. Now the reasons for this evolution are both dismaying and reassuring. They are dismaying because the Supreme Court was never anointed to do the ethical thinking for America. It was instituted to ponder deviations between congressional behavior and the letter and guarantees of the Constitution. The Supreme Court, early on under John Marshall, institutionalized its authority to overrule Congress when the Court viewed an act of Congress as transgressing the rules of the Constitutional compact. Few scholars doubt that Marbury v. Madison was indispensable to the survival of the union, even though a civil war was required finally to make the point that the centrality of union overrode the (logically incompatible) primacy of the states (forgive me if I sound like Brzezinski).

But after the Civil War the court continued to grow, exercising powers that went, finally, far beyond the formal authority required to maintain the cohesion of the union. This early period of judicial growth coincided with the period about which, to my knowledge, Irving Kristol spoke the most resonant comment. What he said was that the most important political development of the last half of the 19th century was the loss of religious faith in an afterlife. Although religious-minded sociologists (one thinks of the late Will Herberg) continue to be reassuring on the matter of the inchoate commitment of the overwhelming majority of the American people to a religious faith, it is an undeniable development of the past one hundred years that America looked progressively to within itself to prescribe ethical conduct. That, liberated—if that word can be so abused—from any sense of responsibility to providence, we chased after a redemptive faith in secular experience. What we know as liberalism is described by men who deal in large canvasses as a secular eschatology. If final guidance was not to come to us from theologians, then it had to come from other sources. I say it had to come from other sources because (it’s the good news) we are dealing with the American culture, which for all its recognized pragmatism has never been at ease with that brand of atomistic individualism that dismisses transcendent values. One of the reasons why philosophical laissez-faire failed as the governing philosophy of America is that American idealism could not come to terms with the Social Statics of Herbert Spencer, any more than, two generations later, it could come to terms with the arid individualism of Ayn Rand. We had to have something more; an ethically-oriented authority. Congress was manifestly incapable of serving as such. The general familiarity with the awful compromises by which politicians are ruled, in order to succeed in their profession, stripped that body of sufficient moral authority. Walter Lippmann attempted to rescue something called the Public Philosophy, and it is by no means dead, by which I mean that there survives a loose aristocracy of thinkers and moralists who attempt, without subordination to secular authority, to ask themselves what is the nature of the virtuous society. But “the public philosophy” is, nowadays, an unaffiliated cluster of randomly located little enclaves of higher thought, an analogue of those tatterdemalion railroad stops where one goes to flag down the express trains which, irregularly and impatiently, stop, now and then, to pick up vagrant pilgrims, whose importunities distract from the great, hectic vectors of commerce and thought.

Seven years ago, the Supreme Court ruled that the right of abortion was an extension of the right to privacy of the American woman. The Yale professor on “Firing Line” is an unusually experienced man, to be distinguished from the academicians who spend lifetimes removed from the vicissitudes of public policy. Robert Bork, you will recall, was Solicitor General of the United States in the first term of Richard Nixon. When the President decided, for reasons noble or ignoble, to discharge Special Prosecutor Archibald Cox from responsibility for the investigation of Watergate, he instructed his Attorney General Mr. Richardson to execute that dismissal. Mr. Richardson declined to do so, presenting the republic with what the English would call a constitutional crisis. So did his deputy decline. The President reached down to the third official in line, promoting Mr. Bork to acting Attorney General; and Bork dismissed Cox, not out of any acknowledged sympathy with the President’s motives, but out of a respect for the constitutional allocation of powers defined during the impeachment proceedings of the late Andrew Johnson. Now, the willingness of Robert Bork to uphold executive authority notwithstanding that to do so was to act athwart the manifest emotional passions of the day, is not unrelated to what he said on “Firing Line” when the subject under discussion was the authority of the Supreme Court. What he said was that so submissive has the American public become to the moral authority of the Supreme Court that whereas even twenty years ago, when the Court ruled abruptly and with arrogant disregard for precedent and sound historical analyses, that common prayer in the public schools was a violation of the First Amendment to the Constitution, there had been an instantaneous outcry by the American people reflected in denunciations by every sitting governor save one, giving rise to a realistic expectation that the Court would actually be overruled by a constitutional amendment—“Now,” Professor Bork said, “the decision of the Supreme Court on abortion doesn’t have a chance of being overruled.” He was making the point that the failure of the people twenty years ago to contravene the Supreme Court had become institutionalized. Whereas, as recently as in 1960, there was a genuine possibility that the Court might be overruled, now such is the docility of the people that the chances of overruling Roe v. Wade are nonexistent. And, he added, this is so notwithstanding that—I quote him—“no reputable constitutional scholar” can defend the reasoning by which the Court undertook to transmute the inchoate right of privacy to include a mother’s sovereign right over the disposition of the unborn child.

I presume to give you this narrative, familiar to you and no doubt to your readers, in order to say something which you would justifiably expect to be pessimistic, but which in fact isn’t so. While it is true that the Supreme Court exercises de facto authority over the ethical thought of the majority of the republic’s moral activists, it does so by sheer presumption. That is to say, the authority of the Court over such metaphysical questions as whether the mother’s right to privacy is superordinate to the right of the unborn child to life, is a matter of convention born of presumptuous opportunism, not of structured ethical hierarchy. Under the present dispensation, what the Supreme Court ordains is not only what we are supposed to obey, but what we are supposed to believe. You will note that in respect of school prayer, and in respect of such civil rights and derivatives as the busing of schoolchildren, and affirmative action, there is widespread social docility—notwithstanding that intellectual dissent survives, indeed prospers. What you have done, through The Human Life Review, is to challenge the Court’s thinking not merely on legal and constitutional terms (so brilliantly done by your regular contributor John Noonan). Your publication has raised problems for the Supreme Court every bit as cogent as the problems raised against the Supreme Court’s Dred Scott decision, though that was back when the Supreme Court’s decisions were treated as less than revelatory in authority.

You have, really, focused on the primal question, even as Lincoln did at Cooper Union and in subsequent statements. Lincoln said: Is a man a man ––even if he is black? You have brought forth a journal whose pages are open to men and women who believe in revelation, and who do not believe in revelation; who believe in civil authority, but who do not believe that moral authority rests in Supreme Court justices, riding rogue waves of ethical opinion agitated by concerns over population, over unwanted children, over disgust with primitive black-market abortion technology—you have raised, in issue after issue, the only finally relevant question: Is a child a human being even when it is husbanded within the womb? You have invited analysts of great distinction to address themselves to that central question. By analogy, is the idiot-child, the mongoloid, the comatose-senescent—a human being? Surely the cavalier criterion of a “useful life,” so improvidently proffered by Mr. Justice Blackmun in his majority opinion, is spectral in its implications. You are saying that—and in saying it you have adduced the opinion not only of men of religious conviction, Catholics, Protestants, and Jews, but, in one sense most interesting, men of science—Yes, a fetus is a human being. Your journal stands athwart the comfortable conclusion that a child is entitled to constitutional protection only beginning the minute when it actually emerges from the womb. You, accepting empirical terminology, ask the question: Is the physical emergence of the child from the womb a scientifically conclusive episode transubstantiating mere matter into a human being? Is “birth” the equivalent of the conferring of citizenship? What you have done is to funnel, through a journal of intellectual and stylistic distinction, the refined thought of scientists and moralists who wonder, gradually, whether the distinction implicit in the Supreme Court’s ruling isn’t, when you come down to it, every bit as arbitrary as the distinction which a previous Court accepted as sufficient to prolong a distinction between men white and men black, the one being human, the other not?

Where I think you have the singular leverage is that, the Court having accepted the role of moral tribune, it is paradoxically, open, in a sense never intended, to metaphysical argumentation. Such reasoning as it listens to in commonplace meditations on the nature of equality it could, without violation of its own traditions, extend to the consideration of equality of the right to life. I am saying that the Court’s acceptance of comprehensive moral authority over so many questions renders it susceptible, in the sense it would not have been as a court immune to criticism from Robert Bork, or Raoul Berger, or the strict constructionists, to the nature of such arguments as you are advancing. This means that the social instrumentality that has stood most obstinately in your way in the Me Decade, might as suddenly turn in your direction—if the Court can be persuaded at first to meditate the cogency of the arguments, and then to draw on its authority for appropriate modifications of the Dred Scott decision of our time. As a constitutionalist you will not welcome a continuation of the Court’s usurpations. As a moralist, you will not deny to Caesar the authority to abuse his authority for the purpose of pursuing right thought.

I do not deny that Robert Bork is correct in saying that it is unthinkable that we shall have a Constitutional Amendment overturning Roe v. Wade. But you are thinking the unthinkable. Robert Kennedy, in his closing but galvanizing days as a public figure, regularly closed his speeches by quoting Shaw: “Some men see things as they are and ask ‘Why?’; I dream of things that never were and ask ‘Why not?”’ It is not uninteresting that Robert Kennedy, in the tradition of Martin Luther King, encouraged the thinking of the unthinkable. The interesting question arises whether politicians who wish to succeed in their profession will gradually recognize that that which is formally deemed to be unthinkable is what people really are thinking about. You are betting that the restless conscience of the American people will cause them to think, to ask themselves the most critical ethical question with which America is manifestly not at rest. In any event, you have raised the ethical question: whether we have sublimated privacy into the license to take life. I cannot imagine that anyone is engaged in a sustained endeavor of moral introspection more important than yours; nor conceive of anyone who might have done it better. Herewith my congratulations on your fifth anniversary.

_____________________________

Original Bio:

William F. Buckley Jr. (1925-2008), one of America’s best-known public intellectuals and author of many books, founded National Review magazine in 1955. In 1980, he penned “Letter from a Friend,” saluting J.P. McFadden, the former associate editor of NR who founded the Human Life Review, on the journal’s fifth anniversary. His letter was first published in the Winter 1980 issue.