Even before the Supreme Court considered the Dobbs case, the pro-abortion forces in government and their lapdogs in the media pummeled the nation with the phrase “settled law.” The idea was that Roe v. Wade, decided in 1973, was an inviolable precedent.
The settled law presumption is now displaced with a phrase used in Justice Alito’s written opinion in the Dobbs case, “deeply rooted in this nation’s history and tradition.” The common condensed form is “deeply rooted.” Justice Alito ties the phrase to the Due Process Clause of the Fourteenth Amendment—ratified in 1868—“nor shall any State deprive any person of life, liberty, or property, without due process of law.”
The Justice then borrows from a lesser-known case, Washington v. Glucksberg (1997). “That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.’”
The Most Deeply Rooted Right
No right is more deeply rooted than the right of parents to raise their children. As a function of natural law, it derives from a time immemorial. Like all natural law, this parental right has been recognized in some form by every civilized culture in every land since creation. It is both basic and self-evident.
Saint Thomas Aquinas defined and explained this parental right in the Summa Theologica in the late thirteenth century.
“For a child is by nature part of its father… it is enfolded in the care of its parents, which is like a spiritual womb… so, according to the natural law, a son, before coming to the use of reason, is under his father’s care. Hence it would be contrary to natural justice, if a child, before coming to the use of reason, were to be taken away from its parents’ custody, or anything done to it against its parents’ wish.”
Applying Natural Law in the United States
A recent Wall Street Journal article by legal scholar Steven Toth explains how the U.S. Supreme Court incorporated this vital natural right.
“[P]arental rights fit squarely within the ‘deeply rooted’ standard. The Supreme Court recognized that parents’ rights were constitutionally sacrosanct nearly a century ago, in Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925).”
Both cases affirmed the parents’ right to govern their minor children’s lives. In so doing, they denied that responsibility to the state, with only the most extreme exceptions. Justice James Clark McReynolds summed up the Court’s position in a famous sentence from the Pierce decision.
“The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”
Natural Law versus Modernist Doctrine
The modernist left cannot bring itself to see any idea as essential and self-evident, not even this parental right. Their deconstructionist and relativist creed sees all human interaction as a series of “social constructs” without universal relevance.
This sentiment is deeply Marxist. Marx taught that the upper classes designed all institutions to oppress the lower. Since the family is the most fundamental institution in society, Marx taught that it has the greatest potential to oppress.
Therefore, governments must destroy the family. The state will discharge the family’s most basic functions—feeding, raising and teaching the young among them. While America’s public education system existed before Marx put his poisonous ramblings on paper, modern Marxists use the schools to destroy the structure of families. A recent example is the teaching of gender theory in classrooms.
Leftist Howls of Despair
The term “deeply rooted” touches a raw nerve in leftist precincts. Thoroughly trained in Critical Race Theory, progressives see nothing instructive in the roots of American society. Moreover, they treat anyone who sees virtue in tradition as a virus that must be eradicated.
Consider these headlines that appeared since Justice Alito’s draft opinion “leaked” in May 2022.
- “Bomb Threats Against Black Institutions Are Deeply Rooted in U.S. History”—National Public Radio
- “Is Abortion ‘Deeply Rooted’ in American History?”—Current
- “On the Absurdity of ‘Deeply Rooted’ Tradition”—The Daily Princetonian (Princeton University)
- “The Only Thing Deeply Rooted in this Nation’s History and Tradition is Inequality”—The Daily Pennsylvanian (University of Pennsylvania)
Thus, the Roe decision has massive significance. Since the days of Franklin D. Roosevelt, the liberals have had the Supreme Court on their side. Since there was no effective appeal from its decisions, the Court was the most efficient way to force social change on an unwilling public. Leftists couldn’t wait to grant ever-increasing powers to the Judicial Branch.
Now that strategy has backfired. The left lost control of its own creation. A more conservative element dominates the Court—at least for the time being.
Christians must not repeat the mistakes of the left. Relying only on the courts is short-sighted and dangerous. However, there is every reason to use this temporary situation to roll back the progressive onslaught. If the faithful can take advantage of this moment, they can count on God’s blessings.
Indeed, God blessed and used the sacrifices of fifty years of pro-life Americans to bring the proper case before the right group of Supreme Court Justices. Now, the movement to restore the family has its chance. Now is the time to respond to those graces and work to end the progressive tyranny.
Such persistence is “deeply rooted” in the Catholic Faith. “But let him ask in faith, nothing wavering. For he that wavereth is like a wave of the sea, which is moved and carried about by the wind” (James 1:6).
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