Academic journal article Texas Review of Law & Politics

The Nature of Man According to the Supreme Court

Academic journal article Texas Review of Law & Politics

The Nature of Man According to the Supreme Court

Article excerpt


America has carried out one of the most successful and longlived experiments in self government and human freedom in history. Much of its success is attributable to the fortunate circumstance that our Framers acted upon principles supporting personal honor and virtue as well as limited government.1

Liberty was the Framers' goal, but, it was understood, libertinism could not be the means to the goal. Underpinning the Framers' ideals of personal conduct are the Ten Commandments and the injunction to love thy neighbor as thyself.2 However one may speculate about the influence of Enlightenment rationality, Deism, and other philosophical currents, these Biblical values were the irreducible minimum to which they subscribed.3 History and experience also taught them that a self-governing people must possess an extraordinary amount of personal virtue.4 Religion and morality were thus not only intrinsically valuable, but indispensable to their design.

George Washington captured the common view in his Farewell Address

Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labor to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. [] `Tis substantially true that virtue or morality is a necessary spring of popular government. The rule indeed extends with more or less force to every species of free Government. Who that is a sincere friend to it, can look with indifference upon attempts to shake the foundation of the fabric?5

Alongside a shared Judeo-Christian moral foundation was set the Framers' plan to found a government based on the new "science of politics."6 The object of government, according to Enlightenment philosophers whom the Framers read, was to lift men from the pre-philosophical state of nature in which they experienced liberty without restraint.7 Because the state of nature was also harsh and competitive, men's lives were "solitary, poore [sic.], nasty, brutish, and short."8 In political communities, men consented to exchange some of their natural freedom in order to cooperate with each other and to ameliorate the loneliness and insecurity of the state of nature.9

The Framers' vision of man and society, arising from these sources, is easy to summarize. Man is at least imperfect, in need of virtue and self-discipline.10 Society is a social contract with a legitimate claim to preserve itself and promote individual liberty through order and the consent of the governed."

Today, I am convinced, most Americans continue to share these core values, even if only to the extent that vice pays homage to virtue. Thus, in our individual conduct, we defer to the Ten Commandments and the injunction to love thy neighbor. Further, the common cries for community spirit, "non-partisanship," and civility bespeak an understanding of the need for order, balance, self restraint, and the imperative to promote the common good. Yet for nearly fifty years, many decisions of the Supreme Court have undercut the view of man and society that is integral to our common heritage. The Court's decisions have too often been rooted in modish and untested philosophical notions and extreme libertarianism that would have left our Framers aghast.'y Though many are not deeply concerned by this theoretical chasm, the Supreme Court serves as a "republican school master . . . an educator, molder and guardian of the manners, morals, and beliefs that sustain republican government."13 But as Professor Ralph Rossum commented on the Court's role: "Unfortunately, the Court has not always realized this noble intention. On occasion, what it has taught the citizenry has served more to jeopardize than to sustain republican principles."14

To explain how the Court has eroded these principles, I will refer to constitutional decisions in five significant areas: crime and punishment; pornography; family relations; public order; and youth and education. …

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