THE POLITICIAN'S GUIDE to Assisted Suicide, Cloning, and Other Current Controversies     
George J. Marlin
Two chapters selected from George Marlin's book, as appeared on The World Over (EWTN)

Chapter 8 - The Need for Natural Law

Chapter 18 - Does Human Cloning Violate the Dignity of the Person?


TABLE OF CONTENTS
Foreword ix
Preface xii

PART I: NATURAL LAW

1. The American Credo
2. Natural Law on Trial: Nuremberg and the Higher Truth
3. Discovering Natural Law: An Historical Overview
4. The Politics of Natural Law: The Person and the Common Good
5. Natural Law Under Fire: Ideological Opponents Old and New
6. Natural Law and the United States of America
7. American Ideological Opposition to Natural Law
8. The Need for Natural Law

PART II: ASSISTED SUICIDE AND EUTHANASIA

9. Euthanasia through the Centuries
10. The German Euthanasia Experience: The Final Solution
11. The Dutch Euthanasia Experience: Anything Goes
12. The American Euthanasia Experience: The Slippery Slope
13. Courting Death: Recent Legal Decisions on Assisted Suicide
14. Does a Person Have a "Right to Die"?: The Debate Goes On

PART III: EUGENICS AND CLONING

15. The Science of Good Birth
16. The German Eugenics Experience
17. The New Eugenics: Genetic Manipulation and Cloning
18. Does Human Cloning Violate the Dignity of the Person?

PART IV: THE DEATH PENALTY

19. Merely Vengeance or Morally justifiable?
20. The Origins of the Death Penalty
21. Opposition to the Death Penalty: Ideological Origins
22. Capital Punishment: The Constitution and the Supreme Court
23. Society's Moral Outrage

Notes
Select Bibliography
Index


Chapter 8

THE NEED FOR NATURAL LAW

[W]e have arrived at the point historically where we can no longer proceed with any health or happiness on the blithe assumption that it doesn't matter what any of us believe—or whether there is really anything to believe. I submit to you today that we ought to believe what is true, and that the truth is that we live in a moral universe, that the laws of this country and of any country are invalid and will be in fact inoperative except as they conform to a moral order which is universal in time and space. Holmes held that what I have just said is untrue, irrelevant, and even dangerous.

Henry R. Luce, 1951

JUSTICE HOLMES WROTE: "Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house.... It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject."1 Mr. justice Holmes is correct in part; every body of law presupposes a philosophy.

If that philosophy subscribes to the belief that a Creator endowed men with inalienable rights, and that resting on a divine foundation the state is not autonomous but subject to a higher law, then judges and legislators will respect the inherent dignity of men by recognizing that government's powers are limited. God as the source of law becomes an animating principle of democracy, while the method of democracy becomes the process by which, for the common good, the executive, legislative, and judicial branches of government order the people's God-given rights.

If, however, the underlying philosophy assumes that morality is divorced from law and the force that controls state power grants men their rights (and may manipulate or withhold the rights of life, liberty, and property at any time), then men become mere instruments of those who wield power and are compelled to endure any indignities.

In the Post-World War II era, the underlying philosophy that has made disastrous inroads into our academic, governmental, and legal institutions is positivism, which has been defined as the "influential view (a version of rationalism) that only science provides real knowledge of the world, and that accordingly rejects all religious and metaphysical explanations of human experience."2 Consequently, the idea of an objective moral order based on a synthesis of reason and Revelation is considered the outdated residue of medieval times: in the lexicon of the logical positivists it is a pseudo-problem. For the legal positivist, only human law is valid. Today, legal scholar Charles Rice tells us, "The legislator decides what law will be useful and in accordance with the basic norms as determined by himself. Once a law is enacted it is obligatory. There is no higher law of nature or of God, and the ultimate criteria is force."3

This "legal realism" has so infiltrated the country that Chief justice Fred Vinson wrote in Dennis v. United States (1951): "Nothing is more certain in modern society than the principle that there are no absolutes .... we must reply that all concepts are relative."4

Reacting to that declaration, Felix Morley wrote in the June 1951 issue of Barrons that "it becomes definitely dangerous to the spiritual welfare of the Republic when the chief law officer of its Government declares irrelevantly and even irreverently, that 'all concepts are relative.'.... It stems back to justice Oliver Wendell Holmes ...." 5

How, we may ask, does American legal positivism differ from the ideology that dominated the Nazi system? A German decree of 1936 stated that a decision of the Fuhrer in the express form of a law or decree may not be scrutinized. The American judicial system, dominated by the epigones of Holmes, believes that nine "fuhrers" determine the law of the land.

Hitler, like Holmes, was a Godless Darwinist. He believed only the fit had the right to survive. "The great masses," Hitler wrote "are only a part of nature.... What they want is the victory of the stronger and the annihilation or the unconditional surrender of the weaker."6 The so-called rules of humanity do not apply to man; "[he] lives or is able to preserve himself above the animal world, but sadly by means of the most brutal struggle."7

Like Holmes, Hitler rejected God and the natural law; for him "the racial community is the basis and the source of the law."8 All struggles occur within the race. Therefore, man has no dignity, no inalienable rights, he is a beast: "The main plank of the National Socialist program," Hitler declared, "is to abolish the liberalistic concept of the individual...."9 Man was not exempt from the laws that govern the beast: "[Man] must understand the fundamental necessity of Nature's rule and realize how much his existence is subjected to these laws of eternal fight and upward struggle.... There can be no special laws for man."10 Based on this view of man's nature, Hitler's conclusion was similar to Holmes: "Only force rules. Force is the first law." Only "the stronger man is right."11

Hitler, like Holmes, argued that government policy should be based on the "heroic will." "The essential thing," according to Hitler, "is the formation of the political will of the nation."12 That will, however, was to be in the hands of one man: the Fuhrer. Goering pointed out that: "The law and the will of the Fuhrer are one." Hans Frank stated: "[O]ur constitution is the will of the Fuhrer." And Hitler himself declared to his nation: "My will decides;" "The fate of the Reich depends on me alone;" "There must be no majority decision, the decision will be made by one man."13 Hitler instructed the German masses that the "will of the Nation [Hitler's will] is to be valued more highly than the individual's freedom of mind and will."14

Speaking before the March 1941 annual Washington meeting of the National Social Science Honor Society, Francis Lucey, Regent of Georgetown University's Law School and Professor of Philosophy and jurisprudence, pointed out to his audience what was wrong with the Nazi philosophy: "It is the false philosophy of life, law and government; that philosophy of healthy, warm, well-sheltered and well-trained animals, mighty lions with the dignity and independence that a cage provides, a philosophy that divorces itself from the moral dignity of man. Why did the Nazis adopt this system? Because their philosophy is the philosophy of the deification of the state and social interests, claims and demand, and the philosophy of what is useful and works; realism, utilitarianism and pragmatism. 15

The pragmatism and utilitarianism of Hitler is very similar to Holmes' philosophy. "The difference between Holmes and Hitler," Lucey pointed out, "was that Hitler decided that the elite was not always changing but instead was limited to a particular race. It is true that Holmes was a gentlemanly Darwinian. He too would like, as he often repeated, to get rid of the unfit but he would be more apt to do it by sterilization or gas chambers than with a butcher's cleaver. His was a kid-glove Darwinism."16 There is also one other difference, Hitler had the opportunity to demonstrate the effects of the implementation of the pragmatist approach. Force, struggle, the will of the dominant power led to the annihilation of millions of innocent people.

In November 1945, Law Professor Ben W. Palmer published an essay in the American Bar Association Journal, that rocked the foundations of the American legal profession. Entitled Hobbes, Hitler and Holmes, it stated: "[Holmes'] basic principles lead straight to the abasement of man before the absolutist state and the enthronement of a legal autocrat—whether individual, minority or majority—a legal autocrat who may perhaps be genial as Holmes, benevolently paternalistic, perhaps grim and brutal as any Nazi or Japanese totalitarian, but nonetheless, an autocrat in lineal succession from Caesar Augustus on Nero through Hobbes and Austin and Mr. justice Holmes."17

Based on his philosophy, Holmes could not object to the legality of the Nazi government's utilization of power—the most he could say is that his tastes were different. One intellectual heir of Holmes, Hans Kelsen, put it this way: "The legal order of totalitarian states authorizes their Governments to confine in concentration camps persons whose opinions, religion or race they do not like; to force them to perform any kind of labor, even to kill them. Such measures may be morally or violently condemned; but they cannot be considered as taking place outside the legal order of those states.... From the point of view of the science of law, the law under the Nazi government was law. We may regret it but we cannot deny that it was law."18

Holmes and his Darwinian followers might have explained the German incident pragmatically as follows: Hitler's tastes just differed from ours. While Hitler and his followers had the power, whatever they ordered was good and true. When we won the war, we had the power, and our tastes became the good and the true. Since we did not like their taste and had the power in our hands, we killed them, but it was just a matter of taste and power. The cards in the hands of the dominant players are always trump cards.19 Or so say the Holmesians.

What are the ultimate dangers to our democracy if these legal realists triumph and the only standard of value is "might makes right?" Lucey, writing in 1942, explained it best:

It would destroy Democracy, because the essential tenets of Realism contradict all the fundamental principles of Democracy. Democracy demands a union of men who are de jure independent by the nature God gave them. Realism denies that de jure independence, and reduces Democracy to a union of superior house-broken animals, or ganglia, who live by privilege, granted to them by the dominant physical forces in the union. Democracy demands government by all the people. Realism demands government by some, the dominant. Democracy rejects the tenet that might or physical force constitutes authority, the right and the duty. Democracy demands that even a minority have some inalienable rights. Realism has no protection for a minority. The minority is entirely and completely at the mercy of the dominant group. Democracy has a definite permanent end, the good of all the people. Realism has no end, unless we call the completely changeable pragmatic pattern of the dominant, an end. Democracy with its definite objective or end, with its established norms, respect for man's inalienable rights, respect for minority rights, supremacy of reason and objective values, promotes, despite divergent views and changing conditions, a sense of security, unity and happiness. Realism, by reason of its instrumental "is," its rejection of the role of reason, its relativism, and its skepticism of values, could promote nothing but doubt, confusion, division, fear and despair, the playground in any nation for demagogues, sophists and dictators.... Applied Realism would have to destroy both the Constitution (which, of course, can be done by interpreting it out of existence) and the conviction of the people. Applied Realism in short would destroy Democracy.20

Throughout this Century, American's law schools, legal journals, bar associations, legislative halls and court rooms have been inundated with legal realism. And this philosophy of jurisprudence has resulted in startling constitutional interpretations.

In 1970, for instance, the New York State Court of Appeals, in Byrn P. New York City Health & Hospital Corporation, ruled that the state legislature, not God, has the power to determine who is a person entitled to rights. As authority, the court quoted the noted legal positivist Hans Kelsen: "What is a legal person is for the law, including of course, the Constitution, to say, which simply means that upon according legal personality to a thing the law affords it the right and privileges of a legal person.... The point is that it is a policy determination whether legal personality should attach and not a question of biological or 'natural' correspondence."21

Roe v. Wade is the most blatant example of legal positivism. The court declared that the fetus is not a person and therefore has no rights. The Supreme Court chose the rationale used by the Nazis: that an innocent human being can be declared a non-person and deprived of life if "its" existence is merely inconvenient or deemed unfit by those presently holding judicial or legislative power.

The final absurdity is this: while the rights of the person are denied , inanimate objects and animals are given rights. The late justice Douglas declared in Sierra Club v. Morton (1972), "The voice of the inanimate object should not be stilted."22 Philosopher Peter Singer insists that the pig has more consciousness and, therefore, more rights than fetuses or sick people.23

One is politically suspect today if one merely discusses the natural law in the public square. For instance, during the 1991 Senate Confirmation Hearings on Clarence Thomas, Professor Laurence Tribe of Harvard wrote in a New York Times op-ed piece that Thomas' "adherence to natural law as a judicial philosophy could take the [U.S. Supreme] Court in an even more troubling direction." Because Judge Thomas made references to the concept in speeches and articles, legal realists questioned his fitness to sit on the court. "Before the Senate decides whether to confirm Judge Thomas," Tribe concluded, "they should explore the implications of his views about natural law as the lodestar of constitutional interpretation." 24

Senator Joseph Biden, then Chairman of the judiciary Committee, stated that before the senate could decide whether Thomas was qualified sit on the Court, it would be necessary to find out if the nominee supported the "good" theory of natural law. The bad theory according to Biden is "a code of behavior," which suggests that natural law dictates morality to us. A good theory, presumably, leaves morality to individual choice.25

If the legal positivists are not checked, there will be no limit on their power to strip man and his family of their dignity and rights. A totalitarian state, not unlike Hitler's, can become a reality in our nation, and men will be the helpless prey of those in power. Returning to the natural law is the only means by which the power of the executive, legislative, and judicial branches of government can be curtailed and the inherent dignity of the human person upheld.

America needs the natural law if our democratic form of government is to survive. For it is the natural law that assures that government will be for the people and not the people for the government. It assures that the citizenry as well as those who control the daily operations of government will be subject to law. It assures that there is a distinction between good and evil. It assures that the murderer's taste for taking human life is treated differently than the physicians taste for preserving it.26 The natural law assures that every man maintains his inalienable rights to life, liberty, and property.

This does not mean that the members of civil society can not possess positive legal rights. Natural law simply places a limit on the extent of experimentation in government. The distribution of power is largely irrelevant to the proponents of natural law so long as fundamental rights are protected. The natural law assures that the inherent dignity of every person is protected from the likes of a Hobbes or a Hitler or a Holmes. As justice Felix Frankfurter pointed out: "The Constitution was intended, its very purpose was, to prevent experimentation with the fundamental rights of man."27 The natural law is needed if the people want the civil government's ever changing rules and regulations to conform with the common good.

The only thing that will preserve our great democracy is that which gave it strength at its birth, a firm belief in the God-given dignity of each man and the fundamental principles connected with man's God-given nature. There are countless other things about whose values as means to attain the general welfare. Even the best minds may have doubts and differences. But the strength of our Union stems from our unity on first principles. Doubt our first principles, doubt everything, and we are doomed to division, distrust, discord, despair, and destruction. Doubt first principles, and we as a nation are doomed to that confusion and lack of concord which, as history has shown us, is the happy hunting ground of some form of Holmesian dictatorship.28

 


Chapter 18

DOES HUMAN CLONING VIOLATE THE DIGNITY OF THE PERSON?

Throughout our nation's history, the Judeo-Christian tradition has respected the divine design of life-giving love. In the process of cloning, this personal, unitive, two-in-one-flesh dimension of life-giving marital love is rejected and replaced by technological replication. Begetting is the continuation Of creation; manufacturing is proper to and productive of things, not persons.

John Cardinal O'Connor

THE WORLD is a machine in which there is nothing at all to consider but the shapes and movements of its particles."1 This statement of Descartes has had an incredible influence on modern thought. By strictly reducing science to various versions of materialism, physicists, political scientists, economists, and psychologists can (and, by the logic of their arguments, must) treat man and beast alike, as machines differing only in degree of complexity. Thanks to Cartesian reductionism, psychology especially is no longer the study of man as a spiritual being possessing body and soul, but is merely biology, the study of cells. Biology is then reduced to the study of organic chemistry. Chemistry is reduced to the study of physics in which, finally, man is an organism in which quanta swirl aimlessly.2

Based on this view, man the cell, man the chemical compound, is no more responsible for his creative accomplishments in music, art, literature, scholarship, science, and invention, than the warthog is responsible for his warts. Moral choice can be nothing more than the tropism of an automaton conditioned by various genetic, social, and historical contingencies.3

The pseudo-humanism of the mechanists believes: that there is no difference between man and brute; that empirical evidence alone constitutes the knowledge of the phenomenon called man; that there is no "objective" existence of mind, consciousness and the soul; that human freedom is illusion; that there is no human nature which is not malleable to techniques of design, development and control.4 These notions permit biologist Stephen Jay Gould to assert that our "brains are enormously complex computers,"5 and they permit psychologist R. E. Skinner to categorically state that man is a "machine in the sense that he is a complex system behaving in lawful ways." Carl Sagan declared that "the oak tree and man are the same.... At the heart of life, we are identical to a tree," and Dr. Malcolm Watts postulated that it will "become necessary and acceptable to place relative rather than absolute values on such things as human lives, the use of scarce resources, and the various elements which are to make up the quality of life or of living which is to be sought." And Dr. Watts has proposed "a new ethic in a rational development of what is almost certain to be a biologically oriented world society."6 Thus has man become a commodity.

Analyzing the progress of the mechanistic view of man during the past century, Andrew Kimbrell made these observations:

The doctrine of mechanism was significantly refined as Western civilization entered into the industrial age. As more complex and sophisticated machines were developed, the machine image of the body also evolved. By the twentieth century, mechanism's proponents had set out to remake the body in the likeness of the modern motor with its greatest attribute-efficiency. These attempts were to have extraordinary consequences for human work and the human body shop. They were also to lead directly to perhaps the most pernicious practice of the twentieth century: eugenics.7

Since man is merely a machine and there are no moral standards, contemporary eugenicists can easily argue for human cloning as a means to end "reproductive roulette." Hence Dr. Joseph Fletcher, the medical ethics professor who authored Situation Ethics, can say: "Good reasons in general for cloning are that it avoids genetic diseases, bypasses sterility, predetermines an individual's gender, and preserves family likenesses. It wastes time to argue over whether we should do it or not; the real moral question is when and why."8

There is, of course, a perspective that rejects the mechanistic calculations of the eugenicists. Its proponents hold that all things come from God, especially those attributes that make man Man: his reason, his imagination, his creativity, and his moral and aesthetic dimensions. They argue that the spiritual entity, the mind, with its power of reflection makes man substantially different from the beast. For them the existence of the mind forcefully undermines the foundations of the mechanists. Because with a mind man can have choice, he can have will, and he can have reason and values; with a mind man is different from the rat.

This school of thought holds: that the existence of God is the central focal point of human existence and history; that spirit and flesh are unified in the mind of man; that the soul, reason, imagination, will, and man's moral and aesthetic dimensions, although imperfect, are all gifts from God and exemplify the Divine spark in man; that as a consequence, every individual matters and is a universe in himself; that we must reject the neo-gnosticism of current scientific thinking, including the fallacies of positivism, the claims of empirical and physical reductionism, and the blatant de-humanizing aspects of behavioral determinism as "the primal twilight of man;" that we much achieve the total rejection of the concept of a malleable human nature whereby individuals, the political and social structures, culture, and human evolution are to be re-cast to fit the specifications of elitist, technocratic planners through behavioral control and genetic manipulation, and embrace the belief that human nature is constant, and finally, that the most important things in life must be left to the to the decisions of the common man.

As part one of this book described, man, made in the image and likeness of God, is something special; he has intrinsic value. By his nature, he is a social being who possesses inalienable rights. The state, having received its power from God through the natural law, has the duty to protect man's God-given right to life and to uphold his dignity by maintaining and enhancing the common good.

As a social being, man is endowed by God with an appetite and inclination for social life and naturally forms the basic unit of society, the family. The bond of marriage is a natural institution. Nature intends the continuation of the human race, because it has given human beings the faculty and instinct for reproduction.

Based on these tenets, human cloning technology would be an affront to the person's human dignity and a violation of the common good.

Human cloning violates man's personhood; it denies the sanctity of the person. A cloned child would be an object, a product of scientific engineering, and not, legally if not actually, a gift of God. As John Cardinal O'Connor points out: "There remains a profound ethical difference between 'having a child' and 'making a child'."9 Instead of being accepted as a person, the cloned child might be treated as "thing" or a "chattel." To think that such a prospect is impossible is to ignore the lessons of history.

Human cloning technology could assault the basic fabric of society-the common man and his family. The bonds of marriage could be rendered meaningless. Testifying before a United States Senate Committee hearing on human cloning in June of 1997, John S. Bonnici, S.T.D., stated "Human cloning technology seeks to replicate the person without one individual having to enter into relation with another. This dynamic contradicts man as a social being. Furthermore, without relations with others each individual cloned is suddenly unable to truly live and develop one's gifts. This unnatural act comes at great cost. The potential for a well-ordered and prosperous society is no longer anticipated. The family—the original cell of social life—is compromised by the unnatural objective associated with human cloning."10

This potential biotechnology advancement raises an inexhaustible number of legal and ethical questions. Thousands of experiments in embryo cloning have resulted in mishaps. If experimentation in human cloning produces misfits or freaks (as happened with cattle cloning), how will they be treated? If they are considered commercial products, as "things," will they be tossed into a shredding machine if they are less than perfect? Will they be recognized as persons entitled to rights, or will they be treated as animals or slaves or robots without any legal protections? Who will be responsible for misfits or unwanted "products"? Will the biotechnologist be responsible for the well-being of his creation? Will the "product" be treated as a child or a pet? Will the "product" be entitled to a room of its own or a cage?

Human cloning technology could be easily abused. Nazi doctors, for instance tried to link science with the ideals of social Darwinism, racial hygiene, and Aryan supremacy.11 They envisioned "breeding a new human type," "creating a new man."12 And experiments to achieve that vision began in the death camps.

It is conceivable that a government, dominated by legal positivists and utilitarians could easily abuse cloning technology and create an army of super-soldiers to enslave its citizenry. No, cloning technology is not compatible with a society that cherishes the dignity of the human person.

The Dean of Humanities at the Massachusetts Institute of Technology told a meeting in 1949: "We must now recognize our approaching scientific ability to control men's thoughts with precision."13 It so happened that Winston Churchill was an honored guest on the occasion, and he remarked in reply that he would "be very content to be dead before that happens."14 Churchill, who recognized the inherent evil of twentieth century ideologies, surely agreed with G. K. Chesterton's insight that all men matter. "You matter. I matter. It's the hardest thing in theology to believe." Yes, even the most degraded and unknown soul that ever walked the face of the earth is still not the dross of history, although that is what the eugenicists would have us believe, but is a universe in himself; a person of ultimate importance.


NOTES

Chapter 8.

   1. Holmes, Collected Legal Papers, p. 200.
   2. Miner, The Concise Conservative Encyclopedia (New York, 1996) p. 194.
   3. Rice, Beyond Abortion, p. 49.
   4. Dennis v. United States, 71 Sup. Ct. 857, 866 (1951).
   5. Morley, "Affirmation of Materialism," Barron's (June 18, 1951), p. 3.
   6. Sabine, p. 902.
   7. Ibid.
   8. Azar, p. 180.
   9. Ibid., p. 170.
  10. Ibid., p. 181.
  11. Ibid., p. 196.
  12. Ibid., p. 172.
  13. Johnson, Modern Times (New York, 1991), pp. 289-290.
  14. Azar, p. 170.
  15. Lucey, "Jurisprudence and the Future Social Order," Social Science (July, 1941), p. 1211.
  16. Lucey, "Holmes, Liberal, Humanitarian, Believer In Democracy," Georgetown Law Journal (May, 1951), p. 548.
  17. Palmer, "Hobbes, Hitler and Holmes" (A.B.A. Journal, November, 1945), p. 573.
  18. Rice, 50 Questions on the Natural Law, p. 79.
  19. Lucey, Georgetown Law Journal (1951), p. 553.
  20. Lucey, Georgetown Law Journal (1942), p. 523.
  21. Rice, Beyond Abortion, p. 51.
  22. Ibid., p. 47.
  23. Neuhaus, The Human Life Review (Winter, 1987), p. 81.
  24. New York Times (July 15, 1991).
  25. Cromartie, A Preserving Grace: Protestants, Catholics and Natural Law (Washington, DC, 1992), p. 29.
  26. Gregg, "The Pragmatism of Mr. Justice Holmes," Georgetown Law Journal (1943), p. 288.
  27. Ibid., p. 292.
  28. Lucey, Georgetown Law Journal (1951), p. 562.


Chapter 18

   1. Azar, Man: Computer, Ape or Angel (Massachusetts, 1989), p. 23.
   2. Ibid.
   3. Ibid., p. 24.
   4. Ibid., p. 26.
   5. Ibid., Page 29.
   6. Fletcher, p. 156.
   7. Kimbrell, p. 243.
   8. Fletcher, p. 154.
   9. Bonnici, "Cloning Technology and the Traditional Family," US. Capital Room SC-5 (June 24,  1997).
  10. Ibid.
  11. Proctor, p. 227.
  12. Lipton, pp. 279 and 469.
  13. Krutch, The Measure of Man (New York, 1997), p. 88.
  14. Ibid.


Taken from:
The Politician's Guide © 1998 published by Morley Books
Chapter 8, pages 54-62; Notes from pages 204 & 205
Chapter 18, pages 163-168; Notes from page 216
Table of Contents, pages vii-viii

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