On October 15, 2006 Antonin Scalia participated in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. Scalia defended a number of his opinions and stated that neither homosexual rights nor abortion can be found in the Constitution. “On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment. . . . Whether it’s good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution,” he said.
Strossen countered by stating, “There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be.” What is the basis for the claim that some rights are “fundamental”? The ACLU fights tooth and nail to keep any mention of a creator out of government schools. How can certain rights be fundamental in an atheistic, chance-oriented cosmos? According to the ACLU, given its materialistic assumptions, there is no way to account for the concept of “fundamental rights.” The idea is borrowed from the Bible. Men and women have dignity—rights—because we are created in the image of God. How can electrical impulses and chemicals “through a bag of meat and bones” have any rights? Joseph Sobran writes:
I used to believe in evolution myself, but I took no joy in it. Who could? If atheism is true, then nothing really matters—not even atheism. Even as a kid I could see that. In my atheistic days I thought nothing was quite as silly as the militant atheist. . . . I regretted losing my faith, and I couldn’t understand people who could be enthusiastic about living in a cold, godless universe. I tried to make art—especially Shakespeare and Beethoven—my consolation prizes for the religion I’d lost. At least they made me feel as if I had a soul, even if the cheerless dogma of Darwin said otherwise.”
Strossen believes that moral**** decisions should be left to unelected judges. So where do these unelected judges formulate their views on what constitutes “fundamental rights”? All she can say is that fundamental rights are fundamental rights. And what if a new set of unelected judges gets a chance to redefine what was once considered a fundamental right? Who’s to argue with them? Scalia made this very point. “Someday, you’re going to get a very conservative Supreme Court and regret that approach.” Prior to 1972, abortion was illegal. In January of 1973, abortion was made legal and the status of the unborn changed overnight.
Strossen laid her cards on the table with the following retort that brought cheers from some in the crowd: “I’m very distressed about your failure to find protections in the Constitution for the right of consenting individuals in their homes to decide what they see and read, and what type of sexual relations they have,” she told Justice Scalia. This is a dig at those who oppose abortion and sodomy, but it has no teeth. Anti-abortion advocates believe that abortion kills a preborn baby. Since a pre-born baby is a human being, given pro-life beliefs based on Scripture, history, and reason, it is reasonable to conclude that civil government should not allow the procedure. Abortion, therefore, is not a fundamental right because of certain moral absolutes that stand outside individuals, courts, and legislators.
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Privacy is not a moral cure-all. Not all behavior done behind closed doors is immune to civil penalties. Anyway, killing preborn babies does not take place in bedrooms. Abortion is a medical procedure that takes place in government-regulated medical facilities. In general, most crimes are committed behind closed doors. Does this mean that civil government has no jurisdiction “in the bedroom”? What if a man beats his wife in the bedroom? What if a young girl is raped in the bedroom? Are these acts outside the jurisdiction of the civil magistrate because they take place in private?
Tommy Roe’s 1962 song “Sheila” carried the following refrain that reminds me of a phenomenon that has been described as “Sheilaism”:
Never knew a girl like-a little Sheila
Her name drives me insane
Sweet little girl, that’s my little Sheila
Man, this little girl is fine
Sheila drove Tommy Roe “insane” because of her beauty. Well, that’s what “Sheilaism does when it comes to the topic of ethics. “Sheilaism” is based on the moral philosophy of Sheila Larson, “a young nurse who has received a good deal of therapy.” Sheila believes in God but in the end, her faith is in herself. “My faith has carried me a long way,” she says. “It’s Sheliaism. Just my own little voice.” If there is “Sheilaism,” then there is Maryism, Tomism, Michaelism, and every other individual_ism_. The Bible has described “Sheilaism” as “every man doing what is right in his own eyes” (Judges 17:6). Such a moral worldview is not sustainable as long as there are two people in the world.
Strossen is advocating a more sophisticated version of “Sheilaism.” For all the expensive rhetoric coming from the ACLU pushing individual rights, all these moral libertines had to do was adopt the moral philosophy of Sheila Larson. Like Tommy Roe, such an ethic would even drive an ACLUer insane. If every person did what was right in his own eyes, we would have moral anarchy on an unprecedented scale. Since the ACLU is officially atheistic, its advocates have set out to establish an immanent secular pou sto in order to make a case for a set of moral absolutes to counter “Sheilaism.” Of course, the ACLU must be careful to define and control what their version of a moral absolute might be based on this-world standards. They are the classic embodiment of what it means to be a secularist. This is in contrast to “classical republicanism” which “evoked an image of the active citizen contributing to the public good and Reformation Christianity, in both Puritan and sectarian forms, inspired a notion of government based on the voluntary participation of individuals. Yet both these traditions placed individual autonomy in a context of moral and religious obligation that in some contexts justified obedience as well as freedom.”
Individuals and the expression of their individualism were recognized, but they were not absolutized. The ACLU has created a moral dilemma for itself. While it pushes for individual moral rights, it knows that to be consistent would be disastrous for everyone.
The question is whether an individualism in which the self has become the main form of reality can be sustained. What is at issue is not simply whether self-contained individuals might withdraw from the public sphere to pursue purely private ends, but whether such individuals are capable of sustaining either a public or a private life. If this is the danger, perhaps only the civic and biblical forms of individualism—forms that see the individual in relation to a larger whole, a community and a tradition—are capable of sustaining genuine individuality and nurturing both public and private life.
 Hope Yen, “Scalia says courts must avoid taking political questions ACLU debate” (October 15, 2006)**
** “Kill Switch, _X-Files_ (Season 5, Episode 11).**
** Joseph Sobran, “Is Darwin Holy?” (December 29, 2005):
**** We often hear that Christian involvement in politics should be opposed because they want to impose their morality on the rest of us. “There is no valid basis for objecting to conservative Christians applying their religious and moral beliefs in politics. Every group—from evangelicals to civil rights activists to antiwar protestors—is trying to convert its moral principles into law.” (Dinesh D’Souza, _The Enemy at Home: The Cultural Left and Its Responsibility for 9/11_ [New York: Doubleday, 2007], 2002).
**** Robert N. Bellah, ed., _Habits of the Heart: Individualism and Commitment in American Life_ (Berkeley, CA: University of California Press, 1985), 221. **** The adjective secular comes from the Latin _saeculum_, which means “time” or “age.” “To call someone secular means he is completely time-bound, totally a child of his age, a creature of history, with no vision of eternity. Unable to see anything in the perspective of eternity, he cannot believe God exists or acts in human affairs.” (James Hitchcock, _What is Secular Humanism?_ [Ann Arbor, MI: Servant Publications, 1982], 10–11).
**** Bellah, ed., _Habits of the Heart_, 142–143. **** Bellah, ed., _Habits of the Heart_, 143.