Albert Mohler:
Dr. Robert P. George is McCormick, professor of Jurisprudence and director of the James Madison program at Princeton University. Professor George is a world renowned scholar on natural law and political philosophy and the overlap of religion and jurisprudence. He is one of the most foremost conservative intellectuals alive today. He’s chaired the US Commission on International Religious Freedom. He served on the US Commission on Civil Rights as well as the President’s Council on Bioethics. He was also a member of UNESCO’s World Commission on the ethics of scientific knowledge and technology. He was a judicial fellow at the Supreme Court of the United States. He received his law degree from Harvard University, a master of theological studies from Harvard Divinity School, and after Harvard, he went to Oxford where he received a doctor of philosophy, bachelor of civil law, doctor of Civil Law, and a doctor of letters. He’s the author of eight books, including Making Men Moral In Defense of Natural Law, and What Is Marriage? It is his most recent book, Seeking Truth and Speaking Truth: Law and Morality in our Cultural Moment, that is the topic of our conversation today. Professor Robbie George, welcome to Thinking in Public.
Robert P. George:
It’s a pleasure. Thank you.
Albert Mohler:
I look forward to every book that is released from you and I have particularly looked forward to this one because of the timeliness of it, Seeking Truth and Speaking Truth: Law and Morality in our Cultural Moment. And let me begin by saying, I think a lot of books that are collections of material don’t hold together well, and I just wanted to tell you right up front, your book holds together incredibly well.
Robert P. George:
Thank you, Al. I hope it does hold together well if it does, that’s because I’m basically circling around the same set of themes. What is the nature and basis of the dignity of the human being? When we locate that, when we understand the nature and basis of the dignity of the human being, what does that entail for the great issues of meaning and value? The questions of human nature, the human good, human dignity, human rights, human destiny. These are the matters with which I preoccupied myself professionally and personally for my four decades as a professor.
Albert Mohler:
And I want to come back to that in just a moment, but just about the structure of the book, I want to tell you that I found every one of the chapters to be something of a feast in itself, and I think the virtue of this is that you were making arguments, and that’s something as I am looking for, where’s the argument? You are so straightforward with your argument. So every one of these chapters is essentially an argument from start to finish, and so that’s the lawyer in you as well. But I just want to tell you, I appreciated every single chapter and some of them more than I expected honestly.
Robert P. George:
Well, thank you. I appreciate that, especially coming from you. As I mentioned offline now, let me say it for your viewers and listeners to hear you and I are together every morning because I am now a regular listener to The Briefing. It’s part of my morning routine. It’s how I inform myself about the affairs of the world. So you’re functioning as my teacher every day.
Albert Mohler:
Well, that goes both ways, and you have been my teacher for a long time. I greatly appreciate that. You mentioned the issues of human dignity that are at the center of your work and the center of your heart’s investment as well in this, as well as your intellectual investment, which is massive. I want to ask the question, from what source did that arrive in your life, in your own intellectual pilgrimage, where did these issues become paramount?
Robert P. George:
Well, there are a couple of moments that were pivotal for me perhaps. The first was when I was just an adolescent around 1971, 1972 when this was a year or two before. Of course, the Supreme Court legalized abortion worldwide in its decision in Roe versus Wade. But as you might recall, you might be old enough to recall, I think I’m a little older than you are, but probably recall that there was a movement to, as they said in those days, liberalize abortion laws in the state legislatures all over the country. Colorado had liberalized, its law California, and a bill signed by then Governor Ronald Reagan, who then later said it was the greatest mistake he ever made, liberalized its law, New York liberalized its law, although it then revoked the liberal bill only to have the revocation vetoed by the liberal Republican governor Nelson Rockefeller. But my mother, about 1971 or 72, recruited me into the pro-life movement.
She became active in our local pro-life movement in West Virginia where I was born and brought up and she began to bring me to meetings. This is really where I first learned there was even an issue here. I’m the oldest of five all boys. I can’t remember my mom being pregnant with the brother just after me, but I can remember the next three. I remember holding my hand on my mom’s tummy and feeling the baby kicking, and I knew it was baby in there. I was under no illusions that this was a rock or a potato or a rhinoceros or anything else. There was a baby in there, somebody was doing the kicking, and I was just scandalized by the thought that this innocent child in the womb could be killed, at someone’s directive. So I was on board with my mom right out of the starting blocks, and of course that required me to start thinking about, well, what is the nature and basis of our dignity as human beings? People talk about rights all the time. People talk about human rights all the time on the left hand on the right. Well, are there human rights? If so, where do those rights come from? And there were a couple of young guys who were graduate students in philosophy at West Virginia University who were involved in the pro-life group. My mother’s pro-life group. It was mostly women by the way, Al, I think it was 18 or 19 or 20 women, one guy who was a Catholic priest and these two philosophy graduate students and the adolescent me. We were the group in those days.
And these two philosophy graduate students were especially impressive to me because of course they were making philosophical arguments in the meetings and they were addressing the issues in debates that they had with people on the other side who really thought that this was a humane thing and a way forward to liberalize the abortion laws. It was also I guess my real introduction to philosophy, but then another crucial moment came when I was in college. I was an undergraduate at Swarthmore and during my sophomore year I took a survey course. I probably took it to fulfill a distribution requirement survey course in political philosophy. Political theory, and it started with Plato and other ancient philosophers and then worked all the way forward to contemporary political philosophy in those days.
Again, you might remember John Rawls, the great Harvard professor was the leading figure in contemporary political philosophy, and he had developed a very interesting liberal theory of political morality. Well, in that introductory course I encountered for the first time one of Plato’s dialogues. It happened to be the dialogue Gorgias, and that’s the dialogue in which Plato raises the question, why do we debate? Why do we discuss? Why do we argue? Is it to show off? Is it to win? What’s the point of an argument? Is it to win and show that you’re the superior guy? Is it like a soccer match or a football game or something like that? Or do we do it to win prestige or earn plaudits and praise and applause? And of course, eventually Plato brings us round to seeing that. No, the real point of discussion and debate and argument is to try to get at the truth of things, especially the truth about the most important things and ultimately the species of truth that we’re after is wisdom. And that just had a profound effect on me. It just changed everything about my, about my thinking, and I think it was that almost epiphany episode that put me on the track to my vocation, my calling as a scholar of moral and political philosophy and philosophy of law. Everything else pretty much unfolded from there.
Albert Mohler:
And there’s a line of consistency, which I just tremendously appreciate in your thinking and contribution. I’m not interviewing myself here, but I’ll just offer that my mother was early in the pro-life movement after Roe v. Wade, and so I’m just slightly younger than you about five years. And so my introduction to the pro-life cause heart, mind, and soul was through my mother who had been a maternity nurse before I was born.
Robert P. George:
Wonderful we have that in common, Al. I just love that. I think that’s great.
Albert Mohler:
Yeah, my mother had shocking materials to me as a 13, 14-year-old, I was confronted with the ontological reality. This is a human being In ways that made a deep impression on my heart.
The second thing is a little bit similar, and that is that for me, it was the abortion issue in the 1976 presidential campaign, the Republican side of the campaign that really fueled so much of this in me. I was a teenage volunteer for Ronald Reagan, and when Reagan narrowly lost the nomination to Ford in 1976 Ford, I became a volunteer in the Ford campaign. I was faced with the fact that no one in that campaign would talk about the issue of abortion, which was one of the animating issues that took me into volunteering for Reagan in 1976, and it was just incomprehensible to me. That’s when I realized there are far deeper issues here. I’m only 16, but wow, there are far deeper issues here. And of course, Ford was basically, if not pro-abortion, certainly married to someone avidly pro-abortion, and he was certainly not pro-life. So it is very interesting. That period of foment, I think also explains why American evangelicals ended up joining Roman Catholics in the fight for life, whereas evangelicals have been absent from that conversation until that very period.
Robert P. George:
It was a critical moment for the movement when evangelicals swarmed literally swarmed into the movement and revivified the movement and brought that zeal to the movement, which has proven so important. Since you brought up your own experience in 76. I should tell you a bit more about my own background here. As I said, I was born and brought up in West Virginia. I had a kind of Huck Finn boyhood hunting and fishing and playing bluegrass music. I don’t know if I’ve played the banjo for you, but that’s my instrument. I’m a bluegrass banjo player. You as a Kentuckian, I hope would appreciate that.
Albert Mohler:
Absolutely.
Robert P. George:
But of course, growing up in Appalachia in those days and West Virginia in those days, we were brought up to believe in four things. Jesus Christ, Franklin Delano Roosevelt, the Democratic Party and the United Mine Workers of America, and that’s what I was brought up to believe.
Both of my grandfathers were coal miners and these are what we believed. And I got very interested in politics even as a kid in part because of the pro-life issue, and I served for two terms as the governor of our democratic youth movement. It was called the Democratic Youth Conference in West Virginia, and I actually attended the 1976 Democratic National Convention as an alternate delegate, and had I been called on to vote, I had planned to vote for Jimmy Carter, believing as it turned out incorrectly, that Carter was pro-life. But of course in those days people didn’t necessarily, Ford was the same, have to show their hands very clearly on the issue. Going back though, I guess I can say I still believe in Jesus Christ. I’ve learned a thing or two about Franklin Deano Roosevelt that has certainly shaken my faith in him as a great historical leader. And as far as the Democratic party’s concerned, it seems to be a lost cause. And the same is true for the United Mine Workers of America.
Albert Mohler:
That wasn’t always the case. That wasn’t, I mean, one of the things I do with students is take the 1960 Republican in 1960 Democratic platforms, and quite frankly none of these issues arise at all.
Robert P. George:
Not even in 68 are they issues, and they’re only marginal in 72. Even though that was the McGovern campaign, McGovern’s basic position was, well, this is a matter for the states, so it’s not part of national politics. And certainly Nixon never ran on a pro-life stance or took a position on the issue at all. We know that he made some from the tapes famous Nixon tapes. We know that he’d made comments from time to time on the issue, but it was not in any way salient as a political issue in those days. By 76, the situation had changed and then certainly by 80.
Albert Mohler:
Well, and to get to your point that you make so comprehensively in this book, Nixon, as those tapes reveal, had something of a visceral reaction to abortion, there was no philosophical argument. He hadn’t bought into ontological argument, and that’s really a huge indictment of the entire American culture at that time.
Robert P. George:
I’m afraid it is. Yeah, and of course Nixon’s view was tinged with racism. I think we have to be blunt in acknowledging that on the one side.
Albert Mohler:
He saw it as an inner city problem. That’s in the essence.
Robert P. George:
I mean, it’s very interesting to think back, Al, I am not breaking any news to you, but perhaps some of our younger listeners and viewers will find this new, and that is even in 76, there were lots of pro-life progressives and there were actually quite a few pro-abortion conservatives. Bob Grant, the so-called King of Talk radio, the precursor of Rush Limbaugh in New York was strongly pro-abortion, and that too was tinged with a bit of racism. He saw it as a way to keep down the surplus population of people who would go on welfare, many of them minority.
Albert Mohler:
He was also based in libertarianism,
Robert P. George:
And there was a libertarian that for example, explains. You remember James J. Kilpatrick, the,
Albert Mohler:
Absolutely, James Jackson Kilpatrick
Robert P. George:
Commentator. Yeah. He was very strongly, and again, it was this libertarian street, but then contrast that with Jesse Jackson, who in those days was going around making very powerful pro-life speeches and never changed his view Al, until he decided to seek the presidency of the Democratic party.
Albert Mohler:
That’s absolutely right.
Robert P. George:
After the point at which it became impossible to be nominated as a Democrat if you were pro-life and when he changed his view, you remember this too, Al, I think when he changed his view, he gave no explanation for why he changed it. He has never to this day, to my knowledge, given any justification for resigning from the strong pro-life view that he had very strongly advocated.
Albert Mohler:
And not only had he advocated it, he offered a very strong argument for the pro-life. Cause it was a twofold argument because he argued positively for the pro-life position and he argued, as you pointed out negatively, that this is a form of undisguised racism.
Robert P. George:
Yeah, that’s right. And in the case of many pro-abortion people, he was right about that. Now of course, the whole movement is tinged with pro-abortion movement was tinged fairly early on as was the population control movement, even before it embraced abortion. Margaret Sanger was notoriously racist. For generations, the Planned Parenthood organization of which she was the founder, denied that she was a racist, and then in the midst of the woke moment or the great awokening, suddenly they announced that well, she was a racist and started taking her names off things like the Planned Parenthood Center in New York City, but they seemed to forget that when people like me had pointed out that she was a racist, had even appeared at Ku Klux Klan rallies, they denied it. Well now they finally let us say got, religion on that one.
Albert Mohler:
As I dissect and try to track the pro-abortion movement, I’ve in lectures and in other settings pointed out that it’s a shift in their movement from babies, from the wrong people to babies at the wrong time.
Robert P. George:
That’s correct.
Albert Mohler:
They had to shift that argument just because of public perception.
Robert P. George:
Yeah, that’s absolutely right.
Albert Mohler:
You stress in your entire thinking what we could describe as a natural law, but I would say even behind that ontology, the consequences of being,
Robert P. George:
Yeah, it’s what you call creation order,
Albert Mohler:
Right. Right. Exactly
Robert P. George:
What you call creation order is what I have in mind when I’m talking about natural law or ontology, the way things are, the reality of things.
Albert Mohler:
No, absolutely. I would say that I appreciate so much of this particular book because I’ve appreciated everything you’ve written, but I think your arguments are distilled very carefully because you’re making some of these arguments in legal briefs. You’re making some of these arguments in contested terrain, so you really have to crystallize things. I guess one question I want to ask you in this is I think that the most difficult question is to what extent is creation order or the natural law obligatory upon everyone? And I know how you’re going to answer this. I just want to give you the runway clearly. How is this obligatory upon everyone and to what degree should it be evident to everyone?
Robert P. George:
It is obligatory on everyone. It is not a ritual rule or set of rules. It’s not merely disciplinary matters. This is fundamentally about what is right and wrong, good and bad, just and unjust insofar as that is knowable, at least in principle by our human reason or to quote St. Paul insofar as it is a part of the law written on the hearts of all of us, even the Gentiles. Paul says, who do not, of course as Gentiles have the law of Moses, nevertheless, they’re capable of understanding that gratuitous murder is wrong, that rape is wrong, that theft is wrong, and they are responsible for knowing that and for living within those rules and they can be held accountable, even judged at the end of the day by God himself on the basis of the law written on the hearts. Well, that’s creation order, that’s the natural law. Now of course, we as Christians believe that the intellect has been darkened by sin. It’s not just that the will has been weakened, will has been weakened, but the intellect has been darkened, and so we’re not going to know it perfectly and all of us will err and all of us will go wrong and all of us will sin.
Albert Mohler:
Paul says, we suppress the truth in unrighteousness, we suppress the truth.
Robert P. George:
Well, that’s exactly it. I mean, this is exactly the human condition. Again, that’s a matter of ontology, but that doesn’t excuse us from our responsibilities under the moral law. And I think that’s the fundamental point when you ask me to say, is it obligatory or not? That’s why I said it’s obligatory, not because any of us will ever fully and consistently live up to it, but because we ought to and we are obligated to and we are accountable when we do not to each other and ultimately of course to God.
Albert Mohler:
I wanted to start out with ontology because obviously it’s fundamental here and you have, I think somewhat singularly helped to reassert these categories into conservative conversation and such that by the way, it’s no longer just in legal briefs and this is the way you hear intelligent, especially Christian conservatives talk about these issues. Now I think if you were to listen to those conversations 30 years ago, what’s different is that creation order ontological issues are now front and center.
Robert P. George:
Yeah, I’ve taken that to be my mission, Al. I want to reintroduce that or strengthen that in religious discourse that is discourse among believers. I want to reintroduce that or strengthen that in general academic discourse when I’m engaging not only with my fellow believers but with secular philosophers. The idea of natural law had sort of fallen off the screen in academia until my doctoral supervisor, John Finnis, basically revived the tradition of natural law thinking for secular philosophical audiences in the late 1970s and early 1980s with the publication of his book Natural Law and Natural Rights. And I’ve joined with him and taken up that cause and fortunately, Princeton has provided me with a wonderful platform to challenge those in the secular philosophical world with these ideas. And I think an awful lot of people have been surprised at the power of these ideas and the difficulty they find in refuting them. So if you look at the history of my own work and it now does go back 40 years, you’ll find me making a case against moral skepticism, which when I began in academia was a very prominent position. It’s now faded. You have to find very few people who will say there’s no such thing as right and wrong, even in academic philosophy. That’s now a very disfavored position, although when I began, it was a highly favored position. But now I find myself challenging, criticizing people who defend a utilitarian understanding of how we identify right and wrong, or although I think this is a little more plausible, it still has its faults what are what’s sometimes called a deontological or kantian approach to issues of right and wrong. And what I want to propose as the alternative that can withstand the scrutiny coming from partisans of those other views is the natural law of viewer, the view that you would identify as creation order.
And I really appreciate my own students and some terrific younger scholars who I regret to say were not my students who are doing so much work. Drawing on my work, drawing on Professor Finnis’ work, drawing on the work of others of my generation in the field to develop the arguments further, bring them to larger audiences.
I especially want to commend Andrew Walker, your colleague down there at Southern Baptist Theological Seminary, who has just done tremendous excellent work and developing these natural law arguments, these creation order arguments and making sure that especially within the Christian community, questions of ontology are taken seriously, trying to persuade people, make people understand just how important those issues are. For example, a very important issue that your typical Christian just would not have any immediate reason to think about, but it turns out to be critically important is the question of whether we are our bodies, whatever else we are or we are non-material substances that merely inhabit and use bodies that Cartesian or other form of dualism that treats the body as a sub personal instrument for the mind or the soul or the spirit and identifies the real person, not with the physical creature that you are seeing on screen now, but with the mental state or the conscious and desiring aspect of the self.
Well, it turns out that issue, whether you hold your view consciously and explicitly or merely implicitly, having never really thought about it, is going to have a lot of implications for the question of abortion. When does the life of a human being begin or when do we have a person? It has tremendous implications for the question of transgenderism. Could a person be a spiritual female or a psychological female inhabiting a male body, or questions of marriage? If people really are just the desiring aspects of the self or the mental aspect of the self and the body has nothing to do with it, then what is actually joined together in marriage? It’s not bodies. Marriage is not a one. Flesh communion as the Bible teaches in Genesis two, marriage is simply the union of two people at the psychological level. Well, any two people of either sex can unite at the psychological level and by the same token, so can three people or five people in a polyamorous unit. So there’s an example of a profound ontological and metaphysical issue that’s got tremendous implications for very practical political and moral questions.
Albert Mohler:
You would not, however, just to be clear in this conversation, you would not say, reductionistically, we are our bodies.
Robert P. George:
No, whatever else we are, we are our bodies and don’t merely have it. We are our bodies no matter what else we are, but we don’t merely inhabit our bodies. And so the view that I embrace, which I think is the historic view of Christian Church, which also explains things like the doctrine of the resurrection of the body because after all, if the real person were just the soul, the disembodied soul and the body’s just a suit of flesh, then in heaven you would exist just as a spirit. You’d be like an angel rather than in our bodily state. But the Christian Church went to the mat from the very beginning. It would’ve been so much easier to not do this, to just claim, oh, Jesus is with us spiritually. His body’s there rotting away in the tomb, in the holy land, but he’s with us spiritually.
They didn’t do that. They went to the mat for the doctrine of the resurrection of Jesus, the bodily resurrection of Jesus and indeed for the bodily resurrection of us as human beings because we are not merely disembodied realities. We are embodied creatures. We have souls as well as bodies. The technical word for those who are keeping score for this view is hylomorphism. It’s the idea that we are a dynamic unity of body and soul. We’re not a soul merely inhabiting and using a material but non-personal or sub personal body on the dualistic view. For example, the view of Descartes, the philosopher, early modern philosopher Descartes, what we are are spiritual selves, basically minds that inhabit and use bodies. The mind is the real person and the body is a sub personal instrument. And although Descartes did not embrace the pro-abortion view, you can very easily see the pathway from that dualistic view to a position such as the one held by my famous or infamous Princeton colleague, Peter Singer, that of course you have a human being during pregnancy from the earliest moments of pregnancy.
Peter Singer criticizes his fellow abortion people when they say, we don’t know when life begins, or we don’t know whether it’s a human being or it’s not a human being. Singer says, of course it’s a human being. What do you think it is? Of course it’s a human being, but it’s not yet a person because it doesn’t yet have mental functioning. Well, there it is, right? There’s the implications of that dualism. The alternative is of course the view that I just described as the hylomorphic view, that the person is a dynamic unity of a body and soul
Albert Mohler:
And that dynamic unity,
Robert P. George:
You have a soul if you have a body.
Albert Mohler:
Yeah, no, I didn’t mean to interrupt you there, but psycho that dynamic unity marks both creation and eschatology.
Robert P. George:
That’s absolutely right.
Albert Mohler:
So it’s a glorious truth and it unravels at neither end.
Robert P. George:
That’s exactly right. By the way you find the hylomorphic view even before Christianity in the writings of the Greek philosopher Aristotle,
Albert Mohler:
Contrary to Plato,
Robert P. George:
He breaks with his teacher Plato, who’s got something. It’s complicated, but it’s something more like the dualistic view with the body being kind of a prison of the soul, that kind of thing.
Albert Mohler:
So many things I’d love to ask you about. Two are competing in my mind right now. I’m going to go for the sake of consistency with where we are now to the argument you make as to what Obergefell should have said, what the court should have said in Obergefell. And of course, we’re now at the 10 year anniversary of that lamentable Supreme Court decision legalizing the same-sex marriage. But I just want to ask you, what should the court have said in Obergefell?
Robert P. George:
The court should have said in Obergefell that the constitution of the United States does not define marriage. That as of now, at that point we would’ve been at 2015. We have a dispute among Americans at all levels about the nature and purposes of marriage and how marriage should be properly defined, where the Constitution is silent, a matter and dispute among the American people is left to be resolved through the ordinary processes of deliberative democracy as prescribed by the federal and state constitutions. And so the court simply should have abstained from ruling on the matter and let the matter play out politically in the state legislatures unless Congress moved in. And then we have a very interesting question about whether Congress has a delegated power. I’ve made the argument that it actually does to resolve the question, or it could be given a power by a constitutional amendment if you don’t think it has the power to resolve the question.
Albert Mohler:
So Obergefell should have looked like Dobbs.
Robert P. George:
It should have looked like Dobbs. But here to make my view more complicated, Dobbs I think did not go far enough because unlike the marriage question as I argued in a brief that I wrote with John Finnis, and that is revised and,
Albert Mohler:
Opened to it right now.
Robert P. George:
Expanded and put in the book, I think there the court should have ruled, and I hope someday will rule short of that, Congress should decide that the 14th amendment to the Constitution, which imposes on the states an obligation to accord to each person, not just citizens, all persons within their jurisdiction, the equal protection of the laws, that the 14th Amendment should have been interpreted in a way that would cast a comprehensive constitutional legal protection on all unborn children. Now, that would’ve left some issues still to the states on questions of, for example, surgeries that would be required to save the life of a woman who’s pregnant, where a foreseeable consequence of the surgery, not its intended result, but a foreseeable consequence would be the death of the developing child. For example, ectopic pregnancy would be the case that would still be governable by state law, but so-called elective abortions, where the very object of the act for whatever reason is to produce the death of the child would be excluded under a proper reading the 14th amendment.
And in the essay in the book where this argument is made, the enhanced brief as it’s presented in the book, we Professor Finnis and I show with a mountain of evidence, it’s really an avalanche, I would say, of evidence that that understanding the person of the unborn child as a person is fully vindicated by the original meaning of the text. It is what the founders themselves had in mind when they use the word person in the 14th amendment. And people can read the essay and you can decide for yourself. And here I want to issue this as a challenge. You probably don’t have a lot of pro-abortion listeners and viewers, but give my book, give that chapter to your pro-abortion friends and challenge them to find any fault or find any contrary evidence. They won’t be able to. It’s a knockdown, and I’ve come, bring it at me if anybody who’s got anything that they think can show that the word person in the vision of the founder or the ratifiers of the 14th Amendment excluded the unborn, it explicitly included them.
Albert Mohler:
Yeah. And that’s why your book is open to that chapter right now because there are two huge issues I wanted to raise with you from this chapter. And the first one is exactly what we’ve been talking about. And you and I, along with others, signed to manifesto publicly declaring that we believe that the unborn are persons and should be considered as such under the 14th Amendment and the equal protection clause. And as you say, the problem with Dobbs is that it didn’t go far enough.
Robert P. George:
That’s exactly right. So what Dobbs did was simply return the authority over abortion to the legislative branch. Now, some people misinterpret Dobbs as saying that it returned the authority only to the state legislatures. That’s not what Justice Alito’s opinion,
Albert Mohler:
The people’s elected representatives,
Robert P. George:
The people’s elected representatives, leaving open the question of whether Congress and not just the state legislatures could legislate on the issue. And again, the evidence that Professor Finnis and I adduce is more than sufficient. It’s overwhelming to show at a minimum that the federal government has the authority, has the delegated power under section five of the 14th Amendment to enforce the equal protection guarantee of section one of the 14th Amendment. And again, give it to your pro-abortion friends and challenge them. Ask them if they can produce any evidence to refute my argument.
Albert Mohler:
I will say in advance, I don’t believe any such evidence can be brought forward. And that leads me to the second issue here, and that is that in this very brief and throughout your other writings, but in particular here, you’re not only making a constructive argument, you’re making a deconstruction in terms of your argument. You’re making very clear that the opposing side here has two things, not only faulty argument, but you make clear they’re dishonest in making this. I think one of the most interesting things about this chapter is how you make very clear that even materials produced in Roe, in the dicta and in the background to Roe, they were based upon easily disprovable claims.
Robert P. George:
Absolutely right, Al. Harry Blackman, who was the justice, who wrote the opinion for the court in Roe versus Wade, Roe versus Wade is his work, his opinion. He was joined by six other justices, but he was the draftsman of the opinion and it’s got his name on it. Justice Blackman joined by the others, had been counsel to the Mayo Clinic. He knew the legal history and the medical history of abortion and abortion regulation, and it’s simply misrepresented, and I don’t know how to account for that in a way that would not call into question the honesty, the fundamental integrity of the work. That evidence that Professor Finnis and I adduce a due 95 or 98% of it, the vast bulk of it is not new. It’s not stuff that we dug up. There’s a little layer
Albert Mohler:
It was available at the time,
Robert P. George:
It was available at the time, and it has been available since. And,
Albert Mohler:
You do such a good job in this particular brief of just dissecting the misrepresentations and documenting it, including some law journal articles that were quite influential and as you point out, were just lies. I mean, they weren’t mistakes. They were lies.
Robert P. George:
Tell you that story, Al, and tell your listeners and viewers that story since you’ve read it, the story you’re referring here to the work of Cyril Means. Cyril Means was a professor he taught among other things legal history at New York Law School now not NYU, not New York University Law School, a different law school in New York called New York Law School. He was also general counsel to what was then known as the National Association for the Repeal of Abortion Laws. It later became the National Abortion Rights Action League and it later became NRA Pro-Choice America. I don’t know what it is now, they keep changing the name of it, but he was actually a partisan lawyer for the pro-abortion lobby and he wrote two articles, the most important of which was called “The Phoenix of Abortion Freedom”, which made the following two claims, both of which are manifestly false, not just false, manifestly false.
Number one is that he claimed that the purpose of the 19th century statutes prohibiting abortion, which were really just strengthening common law prohibitions of abortion before you had the statutes were not enacted to protect the life of the child in the womb they were enacted simply to protect women against dangerous surgical procedures being performed by crack doctors. That was completely false, completely false.
Number two, he claimed that abortion was not only legal at common law, he was wrong about that too, by the way. He claimed that it was a right, a recognized right. No way. Actually some common law jurisdictions prohibited abortion all the way through pregnancies, others punished abortion, not the woman who had the abortion, but the person performing the abortion. The abortionist after quickening. Now quickening is not viability. Viability is the point after which whatever the technology is at the time, the child can survive outside the womb.
Quickening is that period before viability when the mother feels fetal movement. Now, as a matter of scientific fact, the unborn baby, the fetus, the child in the womb is moving before the mother can feel that movement. But quickening is just when you feel the movement. As a matter of fact, even in those jurisdictions that did not impose punishments for abortion until quickening, abortion was unlawful for all in all other respects, you could not enforce a contract for abortion. A place where abortions were performed could be shut down, could be closed down by the police the same way the police could close down gambling establishments or prostitution establishments or drug dens or anything like that. The real reason that the criminal punishment was not imposed until quickening in some jurisdictions was evidentiary. In order to get evidence that the crime of abortion had been committed, you need proof of the existence of pregnancy. The existence of pregnancy is what those of us who are lawyers call an element of the crime. So quickening was introduced. The facts about quickening, testimony about quickening was introduced to provide the evidence to establish the element of the crime, of the crime of abortion, the element known as pregnancy. So it was all falsehood, bad faith, dishonest, outrageous, really.
Albert Mohler:
Absolutely. By the way, the authoritative biography of Blackman makes clear that he wrote an argument as the majority opinion, then trashed it and wrote an entirely new argument. And it appears that at least part of this was because of the intervention of people including his own daughter, just making the arguments. And so it is really a horrifying kind of picture of pasting together and almost ex post facto argument. In other words, they were determined to find the declaration of a woman so-called right to abortion in the same way they’d found it for contraception. And it is the same vacuous argument, but all the rest of this was just cut and paste in order to make their argument look respectable in terms of a majority opinion in Roe.
Robert P. George:
Yeah, that’s what, again, those of us who are lawyers call results oriented jurisprudence, and that’s a very pejorative label. In the world of world of law. You’re supposed to, if you’re a judge, you’re supposed to go where the law takes you, it might not be where you want to go. It might be contrary to where you’d like to go. You’re supposed to go where the law takes you because you are not the law. The rule of law is not the rule of lawyers. The rule of law is not the rule of judges. The judges are bound by the law, a results oriented jurist like Harry Blackman for example. But there are many others, and historically they’ve been sometimes on the right. And William, William Douglas on the left, William, William O. Douglas is another example, A results oriented jurist just doesn’t care what the law says. He’s just going to get to the conclusion he wants. And of course, what that subverts Al, is the whole principle of Republican democracy. That means the law is not made by the representatives of we, the people. It’s made by judges who are accountable to no one, who are serving on good behavior that means for life, who are not reviewable, who are not subject to elections where they can be thrown out of office. So it’s a gross abuse of democracy.
Albert Mohler:
One of my favorite chapters in the closing part of this book, you have some vignettes about persons with whom you have had a lifelong engagement in some cases, or at least in your adult life. I want you to talk about Professor Raz at Oxford, and it’s a delightful chapter, but it also forced me to revise my understanding of his thought.
Robert P. George:
Well, yeah. Thank you for inviting me to talk about my late and very dear doctoral supervisor. I had two, I had John Finnes and Joseph Raz, who when I became their doctoral student, they were themselves becoming two of the world’s premier philosophers of law. This was a time when Oxford University, where I was studying for my doctorate, was the world headquarters for the analytic philosophy of law, the grand figure who revived the whole tradition of English analytic jurisprudence at mid-century H. L. A. Hart was retired, but still on campus, still in Oxford and still active. He would attend seminars with Professor Raz and Professor Finnis that were organized by yet another magisterial figure in philosophy of law at the time, the American scholar, who was an Oxford professor named Ronald Dworkin. And so I had
Albert Mohler:
On the other side.
Robert P. George:
Yeah, that’s right. I had the great pleasure of sitting in on so many seminars with Dworkin, Finnis, and Raz and with Professor Hart present, and I was part of a group of graduate students, some of whom of course went on to become very important philosophers of law themselves.
I’m thinking for example of Jeremy Waldron of NYU and Leslie Green of Oxford, and there were many others. It was just nirvana if you were interested in philosophy of law and cognate fields like moral and political philosophy. But Raz was my first supervisor when I arrived at Oxford, Professor Finnis was on sabbatical. And so I arrived. I told the story in the piece in the essay. I arrived and I found a note in my mailbox in my college from Professor Raz inviting me to come along and see him to have my first, we call them supervisions, have my first supervision. And at a supervision, you present a paper which you send to your professor in advance, and the professor then discusses your paper with you. He really just criticizes your paper. I submitted an expanded version of a paper that I had begun working on when I was in law school in the United States.
I was at Harvard Law School, and it was a paper that I submitted there and I got an A on it, and I thought it was a great paper. So I did some more work and I expanded it and I built on it. And then I submitted that paper to Professor Raz and then showed up for my supervision. And he immediately, he greeted me very warmly and then told me that my paper was not only dreadful, that it didn’t even count as philosophy in Oxford. He said, there are some places where this kind of work would count as philosophy, but Oxford, this is
Albert Mohler:
Not that place.
Robert P. George:
Yeah, not that place. And it was for this reason, I mean, Raz put the premium out on precise, logically scrupulous argumentation. You had to defend every inference, every step of the way. You had to build the argument from defensible premises, step by step by step, answering every possible plausible counter-argument before you were allowed to make the next step.
And this is how Raz himself was trained, and that’s how he trained his graduate students the next semester when Professor Finnis came into my life and as my second supervisor was exactly the same way. So they trained those of us under their supervision to be very, very careful, precise, and clear thinkers and writers. I mean, I would hand in my papers for the next three years, I’d hand in the papers for my supervision and they’d come back covered with red or green ink where anything that I hadn’t thoroughly established was called into question. And of course, if I was guilty of any sort of logical fallacy at all, no matter how subtle they’d catch it, and they would point it out to me and not let me get away with it. And they were like that with all their students. And I’ve tried to pass that on.
I’ve been blessed Al, with so many wonderful, wonderful students, many of whom now are important professors in their own right. And I’ve just tried to provide for them that kind of guidance. It’s tough love. I’ll grant you that it’s tough love, but give them the kind of guidance that professors Finnis and Raz gave me. What’s interesting about Professor Raz, you had asked me especially about Professor Raz, is that Professor Raz and I were not only not of the same religious view, professor Raz was Jewish and we would discuss religion, but he never made clear whether he believed in God or not. It wasn’t clear to me he was certainly ethnically Jewish. He didn’t seem to be a religious person at all, but politically he was definitely on the left. He was definitely a progressive, definitely a social liberal. And yet he was a wonderful supervisor for me, again, because he made me defend my arguments every step of the way. And if how you find clarity in what you see there, if you find intellectual power and persuasiveness, I got to thank Joseph Raz and John Finnis because they would not let me get away with anything that was not tightly argued, logically, rigorously argued. So we didn’t agree on the most important substantive moral issues, but gosh, I learned so much from him.
Albert Mohler:
Well, that’s very evident and I appreciate your tribute to your professors among others here. And it kind of made me feel like I was there in the sense of, well speak of how thankful I am that among conservatives, the recovery of a far more careful mode of argumentation has been absolutely crucial because we’re at the point now where these arguments simply have to be made. And I speak as an educator as you are, our responsibility is to make those arguments in ways that are fully persuasive to young people who know how to sniff out very bad arguments.
Robert P. George:
Yeah, I think maybe the highest compliment I’ve ever been paid was for a book that I did with two of my students, Sherif Girgis who is now professor at University of Notre Dame and Ryan Anderson, who’s now the president of the Ethics and Public Policy Center in Washington DC. And the compliment came from a Lutheran, Missouri senate pastor himself, a PhD holder and a teacher as well as a pastor. And he read our book, What Is Marriage, which makes the Case for Marriage as the conjugate Union of husband and wife. And he wrote to say, professor George, you and your co-authors have explained to me why I believe what I believe. So a lot of people sort of get these things intuitively, but they haven’t got all the parts of the argument lined up. They haven’t gotten all the inferences secured and so forth. And so if you or I or others who are laboring in the vineyards of academia doing this kind of scholarship can help put the thing together. It’s not that we’re necessarily persuading somebody if something they didn’t believe before, we’re enabling them to see the train of reasoning that leads to the correct conclusion.
Albert Mohler:
Well, there’s something very deeply Christian about that form of argument. There’s something deeply Christian about saying, you know this to be true. I want to tell you why you know this to be true. And especially when you talk about creation order of the natural law, we are trying to help people to see what is there before them and to give them arguments because it’s not just enough to see the truth. You have to be able to articulate and defend those truths.
Robert P. George:
And there are things that can block our, we human beings, things that can block our understanding even of truths that should be obvious or relatively obvious. I think this is what Dickens, Charles Dickens is doing. If you look at his wonderful short story, or if you haven’t read the story, some of the listeners will remember the movie, A Christmas Carol.
Albert Mohler:
Sure,
Robert P. George:
What’s happening with Ebenezer Scrooge, he’s the main character. And of course, he begins as this shriveled up mean unfeeling character. And he ends up, of course, a very fine man, loving, kind, generous, charitable. Well, what’s going on? Well, at the beginning, he’s got things exactly backwards. He’s not seeing what is obviously instrumentally valuable as instrumentally valuable. That is money. He’s seeing it as intrinsically valuable. He’s treating something that’s merely a means to other ends as if it were an end in itself.
Money can never be anything except a means to other ends. It’s not something that we want just for its own sake. It’s just green paper. If you can’t do anything. By contrast, friendship, it’s something that we desire not as a means to other ends or not exclusively as a means to other ends, but as an end in itself, if a so-called friendship is just an instrumental relationship, I’m using you, you’re using me, whatever that is, that’s not a real friendship, right? So friendship is intrinsically valuable and not merely a means to other ends, not merely instrumentally valuable. And that should be obvious to people. And to most people it is obvious. But Dickens gives us Scrooge who’s got things exactly backwards. So he draws this character who’s confused. He sees something that’s merely instrumentally valuable as intrinsically valuable, and he fails to see the intrinsic value of something that is intrinsically valuable friendship and treats it as if it’s merely instrumentally valuable.
There’s a blockage. And then of course, we get an explanation in the course of the story of how the blockage is finally eliminated. And in that case, it’s not with a rigorous, logical argument, it’s with the ghostly visitors. It’s the spirit of Christmas past and the spirit of Christmas present and the spirit of Christmas future, and especially that spirit of Christmas past the ghost of Christmas past who comes and shows him the wounds from his childhood that caused him to put up the block against friendship. Because if you love someone as he loved his sister, who then died, as you’ll recall, then you’re vulnerable to being hurt. And so that blockage went up and it prevented him until he was reformed from seeing what’s obvious to everybody else. And that is friendship is not merely a means to some other end. It’s an end in itself.
Albert Mohler:
Well, as always, you are such a wonderful teacher, and I want to thank you again for this book. And all I can say is I always look forward to the next one, and that’s even more true of conversation. Robbie, dear friend, thank you for this conversation, and thank you for joining me for Thinking in Public.
Robert P. George:
Oh, Al, thank you for having me on as a guest, and thanks for continuing to do the great work you do, especially with Thinking in Public and The Briefing.
Albert Mohler:
Many thanks to my guest and dear friend, professor Robert P. George for thinking with me today. If you enjoyed today’s episode of Thinking in Public, you will find more than 200 of these conversations at ablertmohler.com under the tab, Thinking In Public. For more information on the Southern Baptist Theological Seminary, go to sbts.edu. For information on Boyce College, just go to boyce college.com. Thank you for joining me for Thinking in Public, and until next time, you know what I’m going to say. Keep thinking.