For some time, I’ve been trying to think about what a process-influenced judicial theory might look like. Over the next few weeks, I am publishing what is essentially a series of reflections on a process view of reality, as it might be understood to help our judicial system work better, promote the search for justice and social harmony in our society, and, hopefully, help make the world a better place for our children and grandchildren. Unlike most of my endeavors, this blog does not include a bunch of footnotes reflecting research. It is a reflection on research already completed, most of which has already been set out in one or more of my writings.[1] Those who follow me know that I rarely publish anything without research, and the next three or four blogs are no exception.

What is a Process Influenced Judicial Theory

The idea that reality is best viewed as a process is not new. In fact, it goes back to the Greek philosophers. The Biblical writers understood this important truth. They knew that:

Time, like an ever-rolling stream,
Bears all its sons away;
They fly forgotten, as a dream
Dies at the opening day.[2]

The Biblical writers were not unaware of the reality of change. The meditations of the prophets on the rise and fall of empires from Egypt to Assyria, Babylon, Persia, Greece, and Rome testify to their understanding of the reality of change in the political realm.

From a political point of view, Marcus Aurelius noted that the Roman Empire was subject to constant, and sometimes threatening, change. Thus, he says:

Observe constantly that all things come about by change; accustom yourself to reflect that nature of the universe loves nothing so much as changing things that are and making new things from them. [3]

Nevertheless, Western civilization has been influenced primarily by what might be called a static or atomistic, reductionist view of the world, which results in a reductionistic, power-oriented theory of justice. Plato, represents the classical view that notions such as “justice” were real things, what he called Forms, that existed in a world of Forms, and upon which all incarnations of the Form were based. Put in legal terms, any particular just decision was a physical incarnation of the ideal of Justice.

A Static Material Universe

Beginning with Newton, this earlier, ancient organic view of the universe began to shift toward a material vision of the universe. Part of what drove the rise of modern science was the search for universal, unchanging, and timeless principles that would govern the universe and everything in it. According to early Enlightenment thinkers, the universe was made by God, but the God who created it was more of an absent creator, participating in an overflowing stream of reality.

What might be called “historical Enlightenment optimism” held that moral values were built into the universe and, in a sense, baked into the human personality, which emerged from that material universe and was part of it. Initially, these thinkers believed that all right-thinking people would eventually agree on what was just or moral in any particular situation. The problem was human ignorance. Unfortunately, a consensus on moral, political, and legal issues was never achieved. In the end, this part of the Enlightenment project failed. This, in turn, led to a kind of moral nihilism common in contemporary society. Modern materialists tend to think they’re merely human choices enacted by a power-invested body.[4]

Contemporary materialist philosophers have generally held that there is no such thing as “Justice” per se, except as a label that those who seek a particular outcome place on things that advance their interests, or, for more communal thinkers, on the human community as a whole. The technical term for this view is “nominalism,” i.e., the notion that universal categories like “justice” are merely names we place on certain states of affairs or results that we, our group, or our society approve of.

This development is particularly important for the United States of America because we are the first Enlightenment nation. America was born out of the optimism early Enlightenment philosophers felt about the prospects for a human-oriented politics that would serve the best interests of citizens. It’s also a fact that the decline of that optimism has resulted in a kind of political realism and negative-oriented politics that characterizes contemporary political debate. One of the objectives of a constructive postmodernism is to overcome that realism and its destructive results in political life.

Process View of Reality

Unlike materialist thinkers, process thinkers believe that the fundamental reality lies not in matter and forces acting upon it, but in the unfolding process of the universe.  The quantum physicist and philosopher, David Bohm, describes the process of reality as a “flow.” Skipping the long history of process philosophy, it seems to me that the best way to understand reality is as a coherence among information, energy, and “concretions” of that intelligible energy flow, which we call “matter.” This is where we encounter the work of Alfred North Whitehead.[5] For Whitehead, the fundamental components of the flow of reality consist of what he called “actual occasions,” which, if they retain a stable existence, can become “actual entities.”

In this blog series, I may use the term “Fixed Principle” to describe the core realities within a judicial system. A fixed principle could be anything from a granted motion, a jury or court verdict, an appellate ruling, or an administrative decision—basically, any point at which a legal principle or its application to specific facts becomes settled for a certain period. Throughout American legal history, we’ve seen fixed decisions that have lasted for most of it, as well as some that are quite recent. What’s truly important isn’t how long they stay in control, but that, for a time, they become an accepted part of the objective reality of our judicial system.

I’ve always thought the division somewhat misleading because actual entities are actual occasions that remain stable over time. A mountain is a good example. It might last several million years because the fundamental quantum-physical actual occasions that make it up have a stable form capable of enduring that long. Human beings are the same. I am 75 years old, and my body has remained stable, capable of sustaining itself for that many years. However, because of my constitution, it is not possible that I will last as long as a mountain.

The same is true of social structures, such as a legal system. Every time a judge makes a decision, there is a small change in our judicial system, but the American legal system itself has maintained its identity over time. That does not mean it’s eternal. For example, the Roman Empire had a judicial system that no longer exists. Yet for hundreds of years, there was a distinctively Roman judicial system. Today, the United States and Europe are inheritors of the heritage of that ancient system of laws. Our legal system is, however, not eternally stable. Like all human creations, it must either evolve or die.

This brings us to a concept that is of great importance to Whitehead and to process thinkers. Although human beings can be described as actual entities, and although stable structures have that characteristic, human beings are also societies. In fact, human beings are a particular kind of society known as a “structured society.” Structured societies are composed of nexuses, or simple combinations, and more basic societies, or what he might call “subordinate societies,” which contribute to the definite relationship of the society in question. What makes a society important is that it has a kind of social order that allows it to change and adapt to its environment.

Although this can be hard to get our minds around, as to human societies, it’s fairly straightforward. Human societies are made up of human beings, who are themselves highly complex social structures. The nature of these social structures, particularly the presence of human consciousness and conscious thought, makes these societies especially complicated and especially capable of innovation, adaptation, and growth. It should be obvious that if a human being is a complex society capable of adaptation and growth, then social structures made up of multiple human beings are even more complex and adaptable to human innovation. This is important when thinking about a judicial system, which is itself a highly complex structure.

In the midst of the operation of any particular human justice system, “Justice” is what emerges from a justice-seeking community. Thinkers such as C. S. Peirce and Josiah Royce, along with their followers, view the search for justice as a communal enterprise in which a community seeks to order itself rightly. The term “justice” denotes the concrete achievement of that right order at a particular point in time.

It’s important to remember that for a community to truly achieve justice, it must genuinely be committed to seeking justice. If that community becomes corrupted and turns into a power-hungry group, it can no longer effectively create a fair society. I believe we’re currently facing this challenge. Moreover, there’s always the risk of mistakes along the way. Often, the bigger obstacle isn’t losing sight of justice, but our human tendencies—like self-interest, class consciousness, and other flaws—that can cloud our judgment. These imperfections mean errors are inevitable, even within the most earnest justice systems. Society’s progress isn’t always straightforward; we move forward at times and hit snags at others, but the journey continues.

This is an extremely important point for modern people to grasp. Progress is not inevitable. Not every new idea is progress. Not every social pressure from a particular interest group necessarily leads a society forward. In fact, given human nature, many of the pressures on any society and its justice system would lead to corruption and decay if followed. This means that the justice-seeking community has to be ever vigilant and always willing to admit mistakes.

Noetic Reality of Justice

When I say that a judicial system, as a community of justice seekers, is capable of making mistakes, I’ve reached an important point. Justice is not merely a label for whatever a group of people considers just at any particular point in time. It is something that exists outside of us, and its reality stands over our notions of justice, always critiquing the current state of justice in human society. Justice is what I call a “transcendental ideal.” Human actors can and do make mistakes along the way, but justice itself stands over the human search for justice like an invisible beacon guiding us towards a rational and harmonious solution to our concrete search for justice in our own society.

Understanding that not all real things are physical can be quite inspiring. For example, a judicial system isn’t just about physical buildings or officials—it’s about the relationships and ideas that shape it. This system involves many people—legislators, kings, rulers, judges, lawyers, court staff, police—everyone plays a vital role. While it has tangible parts like structures and personnel, it also has important intangible parts—what I call “noetic” or ideal components, which include the core ideas and values it stands for. These noetic parts are actually even more crucial than the physical ones. A legal system can withstand a corrupt official, but it’s much harder to endure if the fundamental idea of justice is lost.

These ideal or noetic components are just as real as the human actors and physical structures involved. To borrow from Plato, that which is real is that which has the capacity to influence the world. Ideas and concepts, such as justice, are not material, nor does justice exist in a Platonic world of ideal Forms. Yet justice and injustice are real aspects of any social reality. They exist as “noetic realities.” The legal system rests on an enormously complex set of noetic realities embodied in areas of the law we call contracts, torts, property law, tax law, statutory law, and administrative rulings—a host of ideal components that are in constant relationship with one another and with the physical reality they regulate.

Influence and Change

A process view of a judicial system holds that any system, any portion of the flow of reality, is constantly changing. To be real is to be both subject to and influenced by others, and this means being embedded in a constantly changing world system. This is true in the subatomic world, in the material world we inhabit, in the social worlds of which we are a part, and in any judicial system. Every participant in a judicial system, however insignificant, has some influence on the system as a whole. This influence is constant and results in an ever-evolving structure for a just society as it seeks just solutions to the infinite number of relationships of which we human beings are capable.

We sometimes focus on important entities, such as the United States Supreme Court, as shaping the legal system. And it’s true that the US Supreme Court has greater influence on our legal system than, for example, I do. Yet every Justice of the Peace, every attorney appearing in court, every plaintiff or defendant, every policeman making an arrest, every juror in a trial, and everyone else involved in the system has some degree of influence, and any change we make will be embedded in that system for as long as it exists. One conclusion to be drawn from this is that everything we do is important, whether it is highly socially significant or hardly significant at all. All participants in our society are important parts of the search for justice.

An American Application

I am at a stage in my study of American constitutional law and political philosophy where I am approaching a time to discuss the issue of freedom of religion. In our society, the First Amendment protects freedom of religion. Early on, Thomas Jefferson made some ill-advised comments about the separation of church and state, meaning that we should not have a theocratic state. Those words have been used to support the view that religion should have no impact on our legal or political systems whatsoever. This is not what Jefferson was trying to say, and it’s not true. Once again, since we understand that reality is relational and that all of society is interconnected, we also understand that religious views are fundamentally important to the legal system. They bear upon it in important ways. Conceptually, they must be kept separate, and the law in America should not establish a national religion, but that does not mean that there should be an “iron wall” between religion and politics.

From this perspective, attempts by secular people to remove the Ten Commandments from courthouses are somewhat misguided. They ignore the fact that our judicial system has been profoundly shaped by our Judeo-Christian heritage, of which the Ten Commandments are a fundamental part. This doesn’t mean other components aren’t important or that we mindlessly embody the Old Testament law in our legal system. Our legal system is also based on the works of great non-Christian thinkers, such as Cicero. I would have no problem with the courthouse displaying a few quotations from Confucius, the greatest Islamic thinkers, or anyone else who has seriously considered the nature of justice. The fact is, our legal system is profoundly shaped by this great religious heritage, which finds its way into our culture.

Some readers might worry that I believe morals or religion should control politics or law. Nothing could be further from the truth. Our moral systems and religious communities are part of the broader culture, even a world culture, of which we are a part. But they are not the only part of the culture, and they frequently disagree. Therefore, they can’t be the sole controlling factor in every decision. It’s not possible to have a legal system in which these two irreconcilable views are both enacted into law as their most ardent proponents hope. What we can hope for is a degree of social harmony and human respect for others amid our disagreements.

Consensus and Justice

This brings me to another concept, which I will call “consensus.” When it comes to making decisions, whether as individuals or as a society, there comes a time when we have to decide. Our society, and in particular our political systems, is dominated by a view of decision-making that relies on power. Courts, legislatures, administrators, business executives, and many others believe they get to make the decisions and that their decisions are justified by the power they have to make them. That is not the view I want to defend.

I believe it’s important that we all work together harmoniously to keep our society running smoothly. To do that, we need to find some common ground about what steps to take next. Implementing laws, holding elections, and making decisions are essential parts of this process. But when the pursuit of power and the desire to keep one’s own group in control become the main focus, it can gradually erode our ability to compromise and make fair, wise choices. If I believe that my own success is crucial to my life’s stability, I will be tempted to treat others unfairly.

We tend to think of these decisions as final. If we happen to be on the winning side, we hope they are, but they’re not. A person who has read enough history knows that laws, political structures, conventions, and other things change over time. In law, we seek a decision that can remain stable over an appropriate period of time, which requires a kind of consensus among those who believe it’s the best possible decision, an acceptable decision, or a completely unacceptable decision. Such decisions are always open to further critique and a new consensus. They are fixed decisions only for a period of time.

Pragmatic philosophers often say that truth is what a community accepts as a proper description of reality over time. When they say community, they don’t mean just any community. For example, I don’t get a vote on whether quantum physics is the best explanation of reality. Only highly qualified quantum physicists get to vote. In a legal system, it is primarily legislatures, courts, executives, and administrative agencies that make such decisions.

This place is a significant responsibility for those in a position to form a consensus. It means they need to listen to everyone and distinguish good advice from bad. It also means they have to be able to make decisions that may not align with their particular social group but that seem best for society. Above all, it means we must be willing to compromise. Without the ability to dialogue, share information, evaluate options, and compromise, it’s impossible to have a functional social system, particularly in a society as diverse as the United States of America.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] I have written a number of blogs on aspects of process thinking at www.gchristopherscruggs.com. In addition, I published a book examining the major pragmatically inclined process thinkers, titled Illumined by Wisdom and Love: Essays on a Sophio-Agapic Constructive Postmodern Political Philosophy (Hunt, TX: Quansus Press, 2025). The title is pretentious because it was intended as the “senior essay I never wrote because it wasn’t required, but I should’ve been required to write it!” One of our children demanded that I do the research.

[2] Isaac Watts, “O God our Help in Ages Past” in Psalms of David (1719), which finds its inspiration in Psalm 90, with its recognition that human life is short and passes away more quickly than we realize when we are young.

[3] Marcus Aurelius, “Meditations” in Marcus Aurelius and his Times; The Transition from Paganism to Christianity, tr. George Long (New York, NY: Walther J. Black, 1945), pp 11-133), 40.

[4] The purposes of this essay, the modern world begins with the work of Descartes and John Locke, and the emergence of modern Democratic societies. By the middle of the 19^th century, with the work of Darwin, Nietzsche, and others, the modern world begins to take on a postmodern form, which finally emerges, in my view, in the post-World War I era. As with all labels, there is a certain subjectivity to when one period of history ends and another begins. For example, if you read my other writings, you will see that I believe the state we are in is not truly postmodern but rather something like “hyper-modernism,” the frantic end of the modern world.

[5] For those who are interested, there are three books that are extremely important for understanding Whitehead. Science and the Modern World, Process and Reality, Adventures of Ideas, and Modes of Thought.

Anyone who reads the news understands that Great Britain is in an almost impossible budgetary situation. Years of uncontrolled domestic social spending and failure to invest in needed military maintenance have left it nearly bereft of its historic military capacity and deep in debt. Much of Europe is in the same or a similar situation. In Britain, successive Conservative and Labor governments have increased spending on domestic priorities while insufficiently funding defense. In the process, they created a set of social expectations that cannot be met over the long run and, at the same time, a situation in which the long-term viability of their country could be in danger. We often hear criticisms of Great Britain without considering whether the very same thing is happening in the United States. The sad truth is that it is.

The story of collapse of the British Empire and its impact on the UK’s finances is long and complex, but there are some lessons that resonate with what’s happening in the United States today. At the beginning of the 20th century, the British pound was the world’s primary reserve currency. Britain was the world’s preeminent military, and especially naval. power. The sun never set on the British Empire. Two World Wars and the end of colonialism changed everything. Britain lost its empire. It ivested heavily in social spending. It nationalized industries that rapidly became uncompetitive.  Britain’s enormous public debts, the shift of industrial and economic power to the United States, and increasing dependence on social programs and social spending marked the end of its economic dominance.

The United States isn’t immune to these challenges. The US emerged from World War II as the world’s dominant economic and military power. Since that time, we’ve been involved in several wars financed by debt, and, like others, we’ve seen our industrial strength come under pressure from China and other countries. We’ve also built a large public social welfare system that can be costly and difficult to sustain. Like Britain during the first half of the 20^th century, the US faces ongoing concerns about maintaining the dollar’s dominance as the world’s reserve currency. Especially since the COVID-19 crisis, the standard of living in the US has declined, and the national debt has increased dramatically. In other words, the same policy threats that led to the collapse of the British way of life threaten our own economy and way of life.

Our Debt Situation

In this article, I want to set out a reasonably neutral account of the situation in the United States, along with a suggestion for how to get ourselves out of it through a constitutional amendment. I’m not going to talk about specific spending cuts. Frankly, without a mechanism that forces spending cuts on our government, and a trade-off between defense and domestic spending, we can’t escape our growing financial problems. Congress and successive presidents have proven themselves incapable of addressing the issue because of the political consequences of doing so. Therefore, the citizens themselves have to act. If they do not, the United States is doomed to decline.

Because of years of poor financial discipline, the United States has an enormous national debt, and increasing interest costs to finance this deficit will lead to future problems, lowering the standard of living and security for our children and grandchildren. It will also impact our national security. The day will come when we simply cannot afford a military of the size to which we have become accustomed.  If we do not want this to occur, today’s generation must take steps to ensure that America is put on a long-term, secure financial footing.

What is the deficit? Quite simply, the deficit is the difference between the funds that the Treasury Department receives in any given year and federal spending against those receipts. If the number is positive, then the United States government has a surplus. If the government spends more than it receives, it runs a deficit. It’s just as simple as that. When there is a deficit, the government has to borrow money in public markets and pay interest on that debt.

Tracking the Federal Deficit: May 2026 

 For much of American history, deficits were not a problem because our country ran a surplus. Unfortunately, since the Great Depression, the Second World War, and the emergence of the United States as a permanent military power with a significant welfare state apparatus, this has changed. Set out below is a chart showing decades of spending growth in the American economy and the impact on federal spending:[1]

As of today, the total gross national debt of the United States is somewhere around $39.2 trillion. If one assumes that the United States has about 150 million taxpayers, that would be about $290,000 per household. Since many households do not pay any taxes (and in any case could not fund a $290,000 debt repayment), the burden is going to fall somewhere else.

The impact of increased social welfare spending on the budget is recorded in the following chart:[2]

The chart debunks a common assumption: that defense spending is the culprit. This is untrue. Social spending is the largest contributor to federal spending, with rising interest costs an increasingly significant factor. It should be obvious that any sustained attack on the deficit involves straightening out social spending. (This does not mean that the defense budget should escape scrutiny or cost savings.) Finally, our financial situation indicates that taking advantage of uncontrolled federal spending for political or fraudulent purposes to enrich elected and other officials needs to end. We cannot afford it.

How Big is the Problem?

The Congressional Budget Office (CBO) predicts that the federal deficit will probably increase by nearly $25 trillion over the next decade. Health and retirement programs are expected to grow faster than the economy and population, which is a cause for concern because our costs are already high by world standards and these costs impact our competitiveness in the world economy. As the US borrows more, interest costs will rise sharply, potentially taking up half of the federal income-tax revenue. There is a risk that Social Security might become insolvent within six years, which would involve a federal subsidy of those costs. In almost any conceivable situation, spending on social and defense programs would be seriously constrained. More importantly, if we don’t find a solution soon, the savings and financial security of many Americans—both now and in future generations—could be deeply affected, which is something we should all be worried about.[3]

Here is what the future holds for America in terms of budget deficits if nothing is done:[4]

Average voters must understand uncontrolled deficits impact the value of our money, savings, retirement security, and other assets. In the end, deficits could lead to a dollar collapse similar to the pound collapse Britain experienced. This could result in a depression deeper than any our nation has experienced—and wipe out the savings of millions of Americans. Deficits impact the standard of living of the middle and lower middle class disproportionately because of their inability to “hedge” the decline of the value of their money.

What to Do

It should be clear to all Americans that Congress needs financial constraints in order to put our fiscal house in order. Tough choices are necessary, such as cutting spending, setting appropriate tax rates, deciding how Social Security, Medicare and Medicaid should be self-funded, and determining how to distribute costs fairly across groups and generations.

I won’t dive into all the specifics here, but my general idea is that each federal program should become more or less self-sustaining over time. We need to set fair tax rates, and everyone should contribute. Deductions, especially those that distort consumption or favor uneconomic business, need to be minimized. Above all, everyone needs to contribute to meeting our national financial obligations. If only the wealthy pay taxes, they end up controlling our country in the long run. This means that our democratic institutions would be threatened by the reality that most people are not contributing to social spending. Therefore, all Americans must come together, work as a team, and figure out how to row the boat together.

There have been a number of proposals from cutting spending to increasing taxes dramatically, and everything possible in between.[5] Most proposals would have a beneficial impact if enacted, but as a friend of mine says, “Congress does not intend to do a thing about the problem because they know any solution involves pain to some group of voters. They know we are on a pathway to disaster, but they do not have the courage or ability to act.”

Financial Responsibility Requirements

Public spirited citizens have attempted to create various incentives for Congress to balance (or at least reasonably control) the national budget. The last president to try to do so was George W. Bush, who quickly learned that it’s difficult to find a political consensus on this issue. (This is especially true when your Vice President is foolishly telling people that deficits don’t matter.) Without some kind of financial constraint on politicians accustomed to buying votes, it is nearly impossible see how our financial house can be put in order.

There have been many balanced budget amendments, some of which have come fairly close to being enacted. Some of these amendments would imply a very dramatic and quick change in public spending—a risky strategy. It seems to me that the better way forward is to gradually solve our financial problem over time, with the likelihood that both major parties would be in power during a portion of the phase in time. Therefore, here is one possible solution:

Financial Responsibility Amendment yo the Constitution of the United States of America

Section 1: The financial records of the Government of the United States of America shall be kept in accordance with Generally Accepted Accounting Principles.

Section 2: Except as provided for in Sections 2.4 and 2.5 of this amendment, financial outlays of the Government of the United States of America for any year shall not exceed receipts. In order to carry out the requirements of this amendment:

Section 2.1: Prior to each fiscal year, Congress shall adopt a budget for that fiscal year in which total anticipated outlays are no greater than total anticipated receipts, plus any spending to be funded from accumulated surpluses and reserves. Congress may amend such a budget during any fiscal year, provided that revised outlays do not exceed revised receipts. It shall be the duty of Congress and the President to ensure that actual outlays do not exceed the outlays set forth in such budget.

Section 2.2. Without limiting the generality of the foregoing, liabilities for Social Security, Medicare/Medicaid, or other recurring social entitlement payments, including federal pensions, must be accrued and funded year-by-year within the federal budget; provided that Social Security, Medicare/Medicaid, and other recurring social entitlement payments accrued or vested prior to the date this amendment is ratified shall not be required to be so funded, but the cost thereof is subject to the balanced budget provisions of this amendment. Each year, the budget shall show an accrual of, and contain adequate provision for, payment of these items, and the Government Accounting Office and the Office of the Budget shall certify to Congress that taxes levied for payment of these items are adequate to fund such benefits.

Section 2.3. In order to carry out the purposes of this amendment, the budget for each fiscal year shall contain a statement certified by the Congressional Budget Office certifying the reasonableness under Generally Accepted Accounting Principles (GAAP) of the estimated receipts and expenditures for the budgeted fiscal year.

Section 2.4. Congress may, by a two-thirds vote, waive the provisions of this article for any fiscal year in which a declaration of war is in effect and hostilities are ongoing. In addition, whenever three-quarters of the whole number of both Houses shall deem it necessary, Congress may provide for a specific excess of outlays over receipts for any fiscal year.

Section 2.5. This amendment shall take effect in the next fiscal year after the year of its ratification. In order for an orderly transition in the economy, during each of the following twelve fiscal years, the federal deficit calculated as set forth above shall be reduced by no less than one-twelfth of the average deficit for the three fiscal years ending immediately preceding adoption of this amendment. Thereafter, this amendment shall be fully implemented.

Section 3. Beginning on the date this amendment is ratified, Congress may no longer require the states to engage in activities without appropriating funds from the federal budget equal to the additional costs imposed by any such mandate.

Section 4: The President of the United States may veto any line item in any piece of legislation that, in his or her considered opinion, might result in the budget for any year becoming out of balance.

Section 5: Congress may pass no law creating benefits for, or responsibilities on, citizens of the United States of America that do not apply equally and uniformly to all citizens, including members of Congress.

Section 6: Members of Congress shall be liable to recall for any failure to adopt the budgets required by this amendment in any year in which it fails to do so. In addition, no Speaker of the House or Majority Leader of the Senate may continue in such office from and after any year in which there was a failure of Congress to meet the requirements of this amendment, and no member of Congress may be reelected to office who voted for an unbalanced budget in any year.

Conclusion

I’m not so naïve as to think I’ve got the solution to the problem our country faces, but I felt it necessary to at least suggest a possible solution. If anyone has a better, simpler, or more politically viable solution, or any other solution, I’d be happy to hear about it. In the meantime, I think that for the future of our democracy, some kind of balanced-budget and financial-responsibility amendment is the best approach.

As a matter of fundamental public philosophy, I think changes are better done slowly, carefully, and with attention to the potential that a particular strategy is not appropriate. More importantly, I believe that solving the budget problem cannot be done without a conversation and dialogue between our national leaders from both of the major political parties. The problem we face is not a republican problem or a democratic problem. It’s an American problem. Therefore, our leaders need to come together to solve the problem, even though both parties will find some of their priorities constrained by any reasonable solution.

Throughout my years in law, business, and leading churches, I’ve learned that no challenge can be overcome without energy, purpose, and a readiness to face discomfort. This is especially true for issues we’ve let slide for too long, which then cause financial and other difficulties that are tough to fix. In my experience, delaying action on problems right in front of us isn’t a wise choice. Problems won’t improve on their own—they tend to grow without deliberate action. Applying this perspective to our national debt is simple and straightforward: This problem has been increasing while we’ve been hesitant to act. It’s time we stop watching the problem get bigger and start addressing it.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] US Government Spending.com at https://www.usgovernmentspending.com/debt_deficit_history (downloaded June 18, 2026).

[2] Bipartisan Policy Tracker, Deficit Tracker, https://bipartisanpolicy.org/report/deficit-tracker/ (downloaded June 18, 2026).

[3] See, The Cato Institute, “Here’s the Solution to the Deficit. Hint: It Isn’t Taxes” (March 13, 2026) https://www.cato.org/commentary/heres-solution-deficit-hint-it-isnt-taxes (Downloaded June 30, 2026).

[4] Committee for a Responsible Federal Budget, “CBO’s February 2026 Budget and Economic Outlook” February 11, 2026) https://www.crfb.org/papers/cbos-february-2026-budget-and-economic-outlook (Downloaded June 30, 2026).

[5] See Congressional Budget Office “Options for Reducing the Deficit 2025 to 2034” (December 12, 2024), https://www.cbo.gov/publication/60557 (downloaded June 30, 2026).

As many readers know, the recent case of Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al.,) the United States Supreme Court overturned Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey.[1] The effect was to put an end to nearly half a century of federal supervision of abortion availability in the United States. Just as Roe created an uproar and much opposition among opponents of abortion, Dobbs has had the same impact on supporters of abortion. Whatever one thinks of the outcome, I think that the case illustrates an important conceptual divide among modern jurists.

Facts of the Case

Dobbs arose as follows. In 2018, the State of Mississippi passed what the legislature called the “Gestational Age Act,” which provided in part that, except in a medical emergency or in the case of a severe fetal abnormality, a person was prohibited from intentionally or knowingly performing or inducing an abortion if the probable gestational age of the fetus was determined to be greater than fifteen (15) weeks. [2]

Subsequently, the Jackson Women’s Health Organization, an abortion clinic, and one of its doctors challenged the Act in Federal District Court, alleging that it violated the constitutional right to abortion established under Roe v. Wade, and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (“Casey”).[3] The District Court granted summary judgment in favor of respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violated applicable precedent forbidding states to ban abortion before viability. The Fifth Circuit affirmed. Originally, it was thought that the case might further narrow Roe, but in the end, it resulted in its overturning.

In Dobbs, the Court revisited its prior decisions in Roe and Casey and the critical question of whether the Constitution confers a right to abortion. Casey’s controlling opinion had sidestepped that question and reaffirmed Roe on the basis of stare decisis. The Dobbs Court declined to continue upholding Roe and revisited Roe’s underlying logic and continued viability. In June 2022, the United States Supreme Court held that the Constitution does not confer a right to abortion and overruled Roe and Casey, returning responsibility and power to deal with this contentious issue to “the people and their elected representatives” (i.e., the states).

Abortion Prior to Roe

The majority decision in Dobbs notes that before Roe and for the first 185 years after the Constitution was adopted, states had the freedom to address this issue based on what their citizens believed was right. At the time of Roe, about thirty states entirely banned abortion. In the years leading up to that ruling, about a third of the states relaxed their laws, but Roe abruptly halted that incremental process. Rather than leaving it to the states, Roe established a uniform constitutional restriction nationwide and effectively nullified individual state abortion laws.[4] In 1973, when the Court decided Roe, Justice Byron White, in his dissent, described the decision as an “exercise of raw judicial power,” which ignited a heated national debate and deepened divisions in our political culture, among religious groups, and across society at large.[5] The majority in Dobbs stepped away from the exercise of that power. In the end, one explanation for Dobbs is that the Court realized that Roe involved the improper use of judicial power.

The Court started by pointing out that the Constitution doesn’t explicitly mention a right to obtain an abortion, and that several constitutional provisions had been suggested as the basis for an implied right. Roe held that the right to abortion was part of a “right to privacy” rooted somewhere in a “penumbra” of the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. In Dobbs, the Court rejected all these sources for Roe, stating that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” The Court also observed that, “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.” The majority noted that after nearly half a century, Roe continued to produce and inflame national debate, bitterly dividing the nation.[6]

Substantive Due Process

Casey was important because in it the Court dismissed the vague reliance on a vague right emanating from named and unnamed constitutional provisions and based its decision on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause, thus clearly embracing a Substantive Due Process approach to abortion litigation. Dobbs overruled Casey on this point:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. 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.”[7]

I cannot be sure, but I believe the Dobbs Court wanted to move away from substantive due process in 14^th Amendment cases.

Impact on Similar Rulings in Other Areas

In overturning Roe and Casey, the court was careful to characterize abortion as a unique situation. Dobbsdoes not completely end the possibility of using the 14th Amendment to protect certain privacy rights, but any such future application must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” In so doing, the majority opinion carefully examined its past decisions in the area, specifically the dangers inherent in any move to incorporate a “right” into the Constitution that is not either expressly contained in the Constitution as amended or so “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” that such right must be recognized.

According to Dobbs, Roe failed to meet that standard because, prior to the late 20th century, there was no legal support in the U.S. for a constitutional right to abortion. No state constitution had ever recognized such a right, and until just a few years before Roe, neither federal nor state courts had acknowledged it. Even scholarly writings failed to address the subject before the “Sexual Revolution” of the 1960s. In fact, for much of U.S. history, abortion was illegal in every state.

Similarly, under common law, abortion was considered a crime at various stages of pregnancy and was seen as unlawful, carrying serious consequences at any point. American law followed these traditional principles until the 1800s, when a wave of new laws made criminal offenses of abortions, increasing penalties. By the time the Fourteenth Amendment was adopted, about 75 percent of the States had made abortion a crime at any stage of pregnancy.[8] The result is that Roe was decided with very little, if any, historical or judicial precedent. In some cases, Roe either ignored or misstated the relevant history, and Casey declined to reconsider Roe’s faulty historical analysis.[9]

Stare Decisis

Having decided that the Constitution’s substantive provisions do not support a constitutional right to abortion, in response to the dissenting justices, the Court argued that stare decisis did not require continued acceptance of Roe and Casey. Stare decisis encourages courts to adhere to prior case law and established legal principles to create continuity and predictability in the legal system. It applies only to the decision itself, not to what is called obiter dicta or dicta of a case.[10] According to Dobbs, stare decisis is intended to protect the interests of those who relied on previous decisions. The doctrine also “reduces the motivation to challenge established precedents, which saves parties and courts from the costs of ongoing legal disputes.” [11] It “contributes to the actual and perceived integrity of the judicial process”[12] and restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command, and “is at its weakest when [the Court] interpret[s] the Constitution,”[13]

However, stare decisis does not prevent overturning of wrongly decided cases—and it should not, for continuing an injustice harms the legal system more than changing a prior decision. In fact, some of the Court’s most important constitutional decisions have overruled prior precedents.[14] The Court’s cases previously identified factors to consider when determining whether a precedent should be overruled:

1. The seriousness of the court’s error
2. The quality of the court’s reasoning.
3. The workability of the court’s solution.
4. The impact on other related areas of law.
5. The impact on those who rely on the precedent.

The majority in Dobbs did not believe that any of these factors favored not overruling Roe and Casey. [15]

In the end, the majority in Dobbs held that the Constitution does not confer a right to abortion. This meant thatRoe and Casey were overturned, and the power to regulate abortion was returned to the people and their elected representatives. Although the decision itself expressly states that it is limited to abortion, it is easy to see that there are other areas in which the Court has simply invented rights and disregarded generations of Western legal tradition and the Constitution’s specific limitations on its powers. Dobbs was a good beginning and an undoing of some of the worst decisions of recent courts.

Concurring Opinions

In his concurring opinion, Justice Thomas repeated his often-stated view that “substantive due process” is an oxymoron that “lack[s] any basis in the Constitution.”[16] He based this view on the notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of words.”[17] In Thomas’ view, the resolution of Dobbs was straightforward: Because the Due Process Clause secures only procedural rights to due process of law, not substantive rights, it could not ever provide a reasonable basis for a right to abortion. The quagmire that the Court entered in Roe was, according to Thomas, no different from the problems the Court encountered when it created substantive property rights in the 19th and 20th centuries.

Thomas agreed with the Court’s decision and its statement that Dobbs does not alter the broader principles of substantive due process or its application in other contexts. Therefore, cases like Griswold v. Connecticut[18] Lawrence v. Texas,[19]and Obergefell v. Hodges,[20] are not directly challenged by the decision in Dobbs.[21] Nonetheless, Thomas believed the Court should revisit all its substantive due process precedents, including these cases, because he views any such ruling. as demonstrably erroneous.[22] This is, I believe, one of the reasons for the language of the dissenting opinions and for Justice Kavanaugh’s concurring opinion.

Justice Kavanaugh, in concurrence, pointed out that Dobbs cannot be read as outlawing abortion. It merely refers the matter back to the states:

To be clear, then, the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.[23]

Chief Justice Roberts, in his concurring opinion, agreed with the judgment of the Court, but felt that the majority opinion went further than the case required. In his view, the Court only needed to answer the question as to whether a state could regulate abortion after fifteen weeks, to which his answer is, “Yes.” In Roberts view, the question the Court granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. In his view, the answer to that limited question is no, and there was no need to go further to decide this case.[24]

The Dissents

Justices Breyer, Kagin, and Sotomayor dissented. These three justices would have upheld the fundamental rulings of Roe and Casey that the Constitution, by implication, gives to women a qualified right to abortion. The dissent relies on the role it believes stare decisis should play in this situation. In their view, Roe and its progeny constituted “established law,” though many of the decisions they cite are themselves fairly recent.[25] In one emotional section, the dissent writes:

Either the majority does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid-19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.[26]

I believe the dissent brings to light a significant controversy in current American jurisprudence. More liberal justices, who accept the implications of “A Living Constitution,” treat cases like Griswold, Roe, and Casey as simply a more modern interpretation of the Constitution’s text and the entire historical Western legal tradition, which judges are entitled to make, even though there is little or no historical or judicial precedent for the decision. These justices are more likely to view current decisions, such as Roe, as indicative of the best current thinking. More conservative justices have a much longer view of history and the development of the law.

More conservative justices, more closely tied to the text of the Constitution and the history of Western jurisprudence, believe the reasoning behind Roe, Casey, and other cases since Griswold is at odds with traditional judicial principles and relevant history. The fact that Roe overlooked nearly 2,000 years of Western history and the established legal practices in most states at the time doesn’t seem to weigh heavily in the dissent’s language. Instead, what appears to matter most is the current progressive members of the court’s personal views on what should be recognized as a right.  In a more traditional view, there is something suspect about modern judges creating new rights where they did not exist in the relevant history.

The Dobbs dissent acknowledges that the Court has frequently reconsidered various aspects of Roe,narrowing it considerably over time while maintaining the overarching right to an abortion.[27] The dissent seems to believe that only the Court’s makeup has changed, undermining the majority opinion as based on the same kind of political decision-making that characterized Roe.

In my last post, I noted that one indication that the Court has entered dangerous waters is when changes in its composition produce incompatible results. This was true during the Great Depression in the area of economic regulation and, more recently, in the COVID-19 cases. Where the Court is clearly and uncompromisingly divided along political lines, it may be that it should carefully consider whether it should deal with an issue.

Conclusion

The majority opinion in Dobbs adopts a view I believe is essentially correct: Courts in the 21st century should interpret the Fourteenth Amendment in continuity with the intentions of those who wrote and ratified it. The majority’s position simply means that courts should not read into the Constitution anything that isn’t there. The Fourteenth Amendment was primarily about ending slavery, and perhaps its interpretation should remain focused on that intention. If the people who ratified it didn’t see reproductive rights as part of the freedom it aimed to protect, then an unelected Court should not be empowered to read that into the Constitution. Changes that are essentially political should be adopted through the means the Constitution provides—an amendment ratified by the states.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v.Jackson Women’s Health Organization, et al. , 597 U.S. ___ (2022).

[2] Miss. Code Ann. §41–41–191.

[3] Roe v. Wade 410 U. S. 113, hereafter “Roe,” and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), hereafter “Casey.”

[4] Dobbs, at 1.

[5] 410 U. S., at 222. I mentioned the social implications of Roe in a prior blog on that decision.

[6] Id, 68.

[7] Id, 5. Roe was vague as to its precise grounding in the Constitution, a flaw the Casey court tried to remedy by clearly grounding its decision in the 14^th Amendment.

[8] Id, 16.

[9] Id. I have had prior occasion to mention that the majority decision in Roe made many historical and factual errors in order to justify the decision.

[10] Black’s Law Dictionary Revised Fourth Edition (St. Paul, MN: West Publishing, 1968). 1577-8, 1222. Obiter refers to passing or incidental language, and obiter dicta refers to the wording of a prior opinion not necessary to the decision of the case.

[11] Kimble v. Marvel Entertainment, LLC, 576 U. S. 446, 455.

[12] Payne v. Tennessee, 501 U. S. 808, 827

[13] Pearson v. Callahan, 555 U. S. 223, 233; Agostini v. Felton, 521 U. S. 203, 235.

[14] The classic case is Brown v. Board of Education, 347 U. S. 483, 491, which overruled Plessy v. Ferguson, 163 U. S. 537.

[15] Dobbs. at 39–66.

[16] Johnson, 576 U. S., at 607–608; see also, e.g., Vaello Madero, 596 U. S., at ___ (slip op., at 3) (“[T]ext and history provide little support for modern substantive due process doctrine”).

[17] McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment); see also United States v. Carlton, 512 U. S. 26, 40 (1994) (Scalia, J., concurring in judgment).

[18] 381 U. S. 479 (1965) (which confirms the right of married couples to access contraceptives);

[19] 539 U. S. 558 (2003) (affirming the right to private, consensual sexual activity);

[20] 576 U. S. 644 (2015) (recognizing the right to same-sex marriage)

[21] This is a view also recognized by Justice Kavanaugh in his concurring opinion.

[22] Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7). With due respect to my friends who support these decisions, for the very reasons Thomas gives, I believe that the Court has been led into a moral and legal wilderness by its substantive extension of the concept of Due Process into areas previously governed by state law. I trust that, if these matters were returned to the states, legislatures and state courts would eventually find wise solutions applicable to their state and its culture.

[23] Dobbs, at 597 U. S. ____ (2022), 3.

[24] Id, at

[25] Id, at 4 ff.

[26] Id, at 5.

[27] Id, 9.

The Supreme Court’s 2010 ruling in Citizens United v. Federal Election Commission was a controversial decision reversing long-standing campaign finance restrictions and enabled corporations and other outside groups to spend virtually unlimited money to influence elections.[1] Many observers believe that Citizens United has contributed to a vast increase in the capacity of private and corporate contributions to influence national elections. Others believe that some of the corruption of government and the loss of faith in our institutions can be traced to Citizens United.

In Citizens United, the United States Supreme Court revisited two prior decisions, Austin v. Michigan Chamber of Commerce and McConnell v. Federal Election Commission.[2] Prior to Citizens United, corporations and labor were prohibited from using general treasury funds to make direct contributions to candidates or to make independent expenditures that expressly advocated the election or defeat of a particular candidate through any form of media.[3]

Citizens United arose in 2007 when a conservative nonprofit organization challenged campaign finance rules that stopped it from promoting and airing a film criticizing then-presidential candidate Hillary Clinton. A part of the film’s distribution was funded by corporate contributions. The District Court denied Citizens United’s motion for a preliminary injunction on the grounds that prior law prohibited corporations from making such contributions.

The Supreme Court narrowly held that Citizens United had First Amendment rights to spend its money to disseminate the film. In so doing, the Court struck down century-old prohibitions on corporate “independent” spending — money that doesn’t go directly to a candidate or party.  This applied to labor unions as well.[4] The end result of Citizens United was to invalidate almost all fundraising and spending restrictions for groups that purport to be separate from candidates, many of which are today known as “super PACs.” The result has been a vast increase in the influence of wealth on American political decision-making.

Prior to Citizens United, while the Court recognized that the First Amendment applied to corporations in certain circumstances, it also recognized that the danger of corruption justified campaign finance restrictions on corporations.[5] In Citizens United, the Court held that “Although the First Amendment provides that ‘Congress shall make no law . . . abridging the freedom of speech,’ §441b’s prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the fact that a PAC created by a corporation can still speak, for a PAC is a separate association from the corporation. Because speech is an essential mechanism of democracy—it is the means to hold officials accountable to the people—political speech must prevail against laws that would suppress it by design or inadvertence.”[6]

I believe Citizens United was unsound and rested on weak or perhaps more properly Machiavellian First Amendment arguments. It’s important to remember that corporations and wealthy individuals shouldn’t have the power to spend unlimited amounts of money to sway public decisions. Instead, we need to put stricter rules in place to limit the influence of wealth in our democracy. One example is the extent to which, in Texas, candidates with little or no political experience have been funded almost entirely by wealthy out-of-state interests. This should not be possible. Finally, in Citizens United, the Court once again substituted its judgment for that of Congress, which is elected to make such decisions, a dubious exercise of judicial power.[7]

The First Amendment

To understand Citizens United, it is important to look at the First Amendment itself, which provides that:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. [8]

As to speech, the First Amendment protects five basic liberties: (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to redress grievances against it. These were the guarantees that the Anti-Federalists complained were notably absent from the new Constitution. None of these rights is absolute. For example, even though freedom of speech is protected, there is no right to incite a riot.[9]Nevertheless, freedom of speech is an important right under our Constitution.

Thus, as Citizens United notes, the “right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it.”[10] However, a basic question arises as to what constitutes citizenship sufficient to warrant protection and whether giving money a form of protected speech. The Court relies upon a long line of cases to support its argument that corporations have constitutional rights.[11] The fact that corporations have certain rights under US law does not mean that they should have constitutional rights under the First Amendment that are not there. For example, no one doubts that press corporations have some protections under the freedom of the press clause.[12] Finally, giving money should not in any case be considered speech. The First Amendment was designed to protect political speech, not the right to make campaign contributions.

Justice Stevens, in his dissent, makes the following point:

The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. The Framers thus took it as a given that corporations could be comprehensively regulated in the service of the public welfare. Unlike our colleagues, they had little trouble distinguishing corporations from human beings, and when they constitutionalized the right to free speech in the First Amendment, it was the free speech of individual Americans that they had in mind.[13]

The First Amendment was designed to protect human speech, not corporate campaign contributions. Furthermore, the founders would have taken for granted that state legislatures and Congress could give or restrict any kind of activities by corporations. There is simply no possibility that the founders believed corporations have any inherent right to speak, for they cannot speak without human actors. Thus,

“As a matter of original expectations, then, it seems absurd to think that the First Amendment prohibits legislatures from taking into account the corporate identity of a sponsor of electoral advocacy.”[14]

What the corporate form can do is amplify the power of the human actors who happen to control the corporate entity. This is exactly what reasonable legislation restricts.[15] Justice Stevens does not think (and I agree) that the majority is correct in concluding that the First Amendment protects corporations from reasonable restrictions, including campaign finance restrictions.

Conclusion

I don’t think there’s any doubt that Citizens United created a distortion in the American political system. Since the case was decided, the role of money in politics has increased exponentially. It is widely felt that congressmen spend most of their time raising money, and that money is used to purchase political favors from the corporations and individuals that give it. It should be obvious that, in my view, campaign contributions are not a form of speech. They’re not part of the political debate, and they should not be exempt from reasonable regulation. Perhaps more importantly, and this is where I need to say it, I don’t think the Constitution gives any kind of unrestricted right to campaign contributions, not to corporations and not to individuals. Our political system is being distorted by the ability of wealthy corporations and individuals to donate unlimited amounts of money nationwide.

Major donors have a resident of some city, county, and states. I believe they should be able to contribute to local and statewide elections in their domicile. They shouldn’t be allowed to donate money outside the places where they live, especially at a local level. U.S. citizens should have the right to support national candidates, such as the President and Vice President, but they shouldn’t influence who other states elect.

If they are granted rights to make contributions under state law, the same applies to corporations: having an office in a state shouldn’t necessarily give them the right to donate money there. Under Citizens United, the very wealthy and corporations have the right to influence elections nationally—and increasingly, we see foreign actors taking advantage of our misguided laws. This reality deeply distorts our political system. The Constitution was created to protect its human citizens, not corporations formed under state law. It also aims to safeguard people’s political speech. (I’ll discuss concerns about the press in a different blog.)

I have little hope that my views will prevail, but I think I am correct.  However, I give the final word to President Theodore Roosevelt, in his 1905 annual message to Congress, as quoted by Justice Stevens:

All contributions by corporations to any political committee or for any political purpose should be forbidden by law; directors should not be permitted to use stockholders’ money for such purposes; and, moreover, a prohibition of this kind would be, as far as it went, an effective method of stopping the evils aimed at in corrupt practices acts.[16]

These words are as true today as they were a century ago.

I do not necessarily have a strategy for the cases I choose to review. Several weeks ago, I reviewed Roe v. Wade.[17] I criticize that case for the extent to which the Court majority was unwilling to be guided by a long judicial tradition, casting doubt on the wisdom of the decision, in order to follow a contemporary movement. Most liberals supported that decision, and most conservatives opposed it. Now, I have reviewed Citizens United, a case generally supported by conservatives and criticized by liberals. Both of these cases illustrate the dangers of constitutional interpretation that ignores a long tradition and calls into question the contemporary court’s views. In both cases, from different areas of constitutional law, we see the damaging impact of the modern judiciary’s lack of respect for history, tradition, and an essentially organic view of the law. I will have more to say about this in the future.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Citizens United v Federal Election Commission, 558 US 310 (2010), hereinafter “Citizens United.”

[2] Austin v. Michigan Chamber of Commerce 494 US 652 (1990), hereinafter “Austin.”
and McConnell v. Federal Election Commission 540 US 93 (2003), hereinafter “McConnell.”

[3] Bipartisan Campaign Reform Act of 2002 2 U. S. C. §441b (2000 ed.); McConnell, supra, at 204, Federal Election Commission v Massachusetts Citizens for Life, Inc. 479 US 249 (An86), hereinafter “MCFL.”

[4] Citizens United, 3

[5] Id. 4.

[6] Id, 3

[7] An example of this substitution is the Court’s conclusion that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Id, at 5.

[8] U.S. Bill of Rights. U.S. Const. Amend. 1 (1791).

[9] See, Terminiello v Chicago, 337 US 1 (1949). I am oversimplifying because there does need to be a clear and present danger of violence, and the Court has limited the scope of this exemption. I will deal with these in future posts.

[10] Citizens United, 23, citing Eu v. San Francisco County Democratic Central Commission, 489 U. S. 214, 223 (1989); Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).

[11] Linmark Associates, Inc. v. Willingboro, 431 U. S.  85 (1977); Time, Inc. v. Firestone, 424 U. S. 448 (1976);

Doran v. Salem Inn, Inc., 422 U. S. 922 (1975); Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975); Cox  Broadcasting Corp. v. Cohn, 420 U. S. 469 (1975); Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974);  New York Times Co. v. United States, 403 U. S. 713 (1971) (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254; Kingsley Int’l Pictures Corp. v. Regents of Univ. of N. Y., 360 U. S. 684  (1959); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952)); see, e.g., Turner Broadcasting System, Inc. v. FCC520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512 U. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S 520 U. S. 180 (1997); Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727 (1996); Turner, 512

1. S. 622; Simon & Schuster, 502 U. S. 105; Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989); Florida Star v. B. J. F., 491 U. S. 524 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U. S. 767 (1986); Landmark Communications, Inc. v. Virginia, 435 U. S. 829 (1978); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974); Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U. S. 6 (1970). One can easily see the difficulty the court facees in dealing with corporate rights related to this or any issue given the huge number of cases.

[12] New York Times Co. v. United States, 403 U. S. 713 (1971)  (per curiam); Time, Inc. v. Hill, 385 U. S. 374 (1967); New York Times Co. v. Sullivan, 376 U. S. 254 )1964)

[13] Citizens United, Kennedy Dissenting, 37. See footnote 55 to the dissent, where I think Kennedy makes a convincing argument that the founders could not have envisioned the kind of corporate speech the majority protects. I have added the emphasis.

[14] Id, 39.

[15] As an aside, it is my view that freedom of speech means exactly that and should have no application to campaign financing.

[16] Citizens United, Stevens dissenting, 42. See, United States v. Automobile Workers, 352 U. S. 567, 572 (1957) (quoting 40 Cong. Rec. 96).

[17] Roe v. Wade, 410 U.S. 113, (1973),

Last week, I introduced the Jesus Prayer, “Lord Jesus Christ, son of God, have mercy upon me, a sinner.” This week, I want to discuss the practical benefits of the prayer. A common complaint about this and other contemplative prayers is that they’re really for monks and people who don’t live in the “real world.” This involves a misunderstanding. While there are monastics and professional priests who are deeply involved in contemplative prayer, including the Jesus Prayer, many ordinary people practice it in their daily lives. On and off throughout my professional life, I have been one of those people. My goal was not to become a monk or reach nirvana. My goal was to be a better lawyer, pastor, or leader.

The Practical Purpose of the Jesus Prayer

The purpose of the Jesus Prayer is not to enter into some kind of mystical state. Experienced practitioners often say that highly emotional, mystical experiences are not signs of spiritual accomplishment but of an inexperienced or adolescent spiritual life. Those who practice the prayer most effectively are those for whom it becomes simply a part of who they are as they go about their day-to-day lives. Even for monks who practiced the prayer for long periods of time, mystical teachers suggest that part of each day should be spent in manual labor. This indicates that material reality and our material need to work to make a living should not be separated from our spiritual need for meaning in life and a connection with ultimate reality.

The Prayer of the Heart is designed to overcome the division in our culture between the body, emotions, and the mind, or, in more traditional spiritual vocabulary, between the head and the heart. In our culture, this becomes even more important because one of the symptoms of our culture is a division between minds and bodies (the head and the heart) that encourages people to develop fairly serious neurosis and even psychotic symptoms. One of the purposes of the Jesus Prayer is to reintegrate our minds, bodies, and emotions into a unity.[1]

We Cannot Divide our Psychosomatic Unity

One characteristic of the modern world is the division between mind and body. The philosopher Descartes spoke of material things (‘res extensa’) and mental things (‘res cogitans’) as distinct. This encourages a division in which the head, or what we would call the mind, and the heart, or what we would call the body, are considered separate and unconnected. This does not align with the best explanation of what we can see in our world. Modern physics, for example, discerns a mental element all the way down into the quantum world. Wherever we go, we find meaning. The physicist and philosopher Alfred North Whitehead took this to mean that there was a mental element to reality “all the way down” into the subatomic world. For Whitehead and those influenced by his insights, there is a mental pole and a physical pole to one integrated reality. [2].

It is never bare, thought, or bear existence that we are aware of. I find myself as essentially a unity of emotions, enjoyments, hopes, fears, regrets, valuations of alternatives, decisions – all of them subjective reactions to the environment as an as active in my nature. My unity –Descartes “I am”—is my process of shaping this welter of material into a consistent pattern of feelings.[3]

Put another way, it’s not as easy as some people believe to separate minds, bodies, and emotions. Mind and matter seem to be two sides of the same coin. Furthermore, when it comes to emotions, we realize they are deeply connected to our minds and the way we think. The reverse is also true. Our minds affect the kinds of emotions we feel. And of course, we all know that our bodies affect both of these things. If I’m sick, my emotional life is impacted, as is my mental life and ability to reason properly. In other words, in some way, it’s not possible to divide our minds, our bodies, and our emotions. In fact, I believe it’s dangerous and unhealthy to do so. That’s the reason we live in a culture that finds it so easy to be neurotic. We’ve done this for about 300 years in a very unhealthy way. The Prayer of the Heart is designed to help us reintegrate ourselves into our relationships with God, our fellow human beings, and creation itself.

Results of Division

From the foregoing, it is clear that, from a purely practical point of view, we human beings have a problem acting with wisdom and love because we struggle to integrate mind, body, and spirit into a healthy unity. The Greek language uses a word that implies the needed unity—nous—often translated as “mind” or “heart.” We do not have an English word that quite captures the full meaning of nous. Most of us who begin to think about what is sometimes called “Orthodox Healing” have a hard time grasping the notion that we have a capacity to understand or perceive truth that is not merely the result of what is called discursive thought or “thinking things through with our minds.” The nous is not merely our minds, for it includes our hearts and emotions as well. It includes our capacity to “put things together,” perceive reality correctly, and rest in that truth with our entire being.

From a spiritual point of view, our ability to perceive and respond to reality, whether accurately or not, is shaped by our self-centeredness and tendency toward selfishness. We are sometimes anxious and inclined to act out of fear and other negative emotions. Finally, we are inclined to make decisions that are not in our own best interest. The Orthodox believe that this is not “sin” in the sense of something we inherited, but rather a brokenness or lack of health that we have developed by immersion in a social context in which all of those around us act in just the same way, and we are inclined to do. If we call this our sin nature, that is fine, but we need to remember that it translates into our personal inability to act with wisdom and love by which we distort ourselves and others.

The Jesus Prayer reconnects us with the life of God, enabling us to embody the Christlike wholeness for which we were created. In simple terms, think of the Jesus Prayer as a healing tool. It helps us restore our natural ability, as unified beings, to live in God’s presence, filled with His life, and to see and respond to the world as the Eternal One envisioned. One way it does this is by creating space between us and the flow of thoughts, what the Greeks called logismoi, so we can stand outside them and respond without being controlled by negative thoughts arising from anxiety, fear, or unhealthy desire, which can lead to a false reaction.

Reintegration

I want to return to last week for a moment. In that blog, I wrote about four stages of the spiritual life, the final two of which are:

• The Intermediate State. In this stage, which most people strive to reach, human beings have good sense and good judgment and can rightly assess the moral and spiritual consequences of most situations. However, in this stage, we are still, in some sense, pragmatically interested in the faith that works for us. We are still, in some ways, captured by our own human nature.
• The Transcendental State. In the final stage, which the orthodox believe few attain, human beings achieve a kind of transcendental enlightenment in which a person acts according to the perfect judgment that only those who have escaped the control of their passions can attain.

Notice that in neither case do we assume that the practitioner has escaped the duties, temptations, and difficulties of everyday life, nor the responsibility to act in the world. This responsibility is assumed to continue, but it is now transformed by the indwelling Spirit of God, with the cooperation of the human actor, who has become someone who acts according to wise, loving, godly judgment. While it may be somewhat more common for those with a monastic profession to achieve the fullness of the spiritual life, I do not think it is impossible for the rest of us. It will just look a bit different.

Knight of Faith and Prayer of the Heart

When I think about the goal for those of us who are not monks and do not have either the time or the inclination to devote our entire lives to the Prayer of the Heart, I am reminded of Soren Kierkegaard and his description of what he calls the “Knight of Faith:”

The moment I first set eyes on him, I thrust him away, jump back, clasp my hands together and say half a loud: “Good God! Is this the person. Is this really him? He looks just like a tax gatherer.” Yet it is indeed him. I come a little closer, watch the least movement in case some small, incongruous optical, telegraphic message from the infinite should appear, a glance, expression, gesture, a sadness, a smile betraying the infinite by its incongruity with the finite. No! I examine him from top to toe, in case there should be any crack through which the infinite peep out. No! He is solid through and through. His stance? Vigorous, it belongs altogether to the finite, no smartly turned out townsmen taking a stroll … on a Sunday afternoon, treads the ground with surer foot, he belongs altogether to the world, no petite bourgeois belongs to it any more. …This man takes pleasure, takes part, and everything, and whenever everyone catches him occupied with something, his engagement has the persistence of the worldly person whose soul is wrapped up in such things. He minds his affairs. To see him at them, you would think he was some pen pusher who had lost his soul to Italian bookkeeping, so attentive to detail is he. He takes a holiday on Sundays.  He goes to church, no heavenly glance or any other sign of the incommensurable betrays him: if one didn’t know him, it would be altogether impossible to set him apart from the rest of the crowd, for at most his hardy, lusty Psalm singing proves that he has a good set of lungs. In the afternoon, he takes a walk in the woods. He delights in everything he sees…. You would think he was a shopkeeper having his fling, such as his way of taking pleasure; … Toward evening, he goes home, his step tireless as a postman. On the way, it occurs to him that his wife will surely have some special little warm dish for his return for example, a roast head of lamb with vegetables. … As it happens, he hasn’t a penny, and yet he firmly believes his wife has that delicacy waiting for him.[4]

The purpose of heartfelt prayer is to help us become the sort of person Kierkegaard describes. Of course, some will enter a religious profession, take up prayer, and pursue a kind of spiritual perfection. But this does not mean the rest of us should not take up the habit. Our goal is to become fully and completely what we are called to be, which may be, as Kierkegaard mentions, an accountant, a tax collector, a construction worker, a small business owner, an employee of a large company, or whatever. Whatever it is, there should be something different about us—and that difference is not “otherworldliness.” Instead, it is the capacity to live in the concrete world of our daily life, allowing God’s life to permeate our ordinary, day-to-day life in a world-transforming way. The goal of the Prayer of the Heart is to help us become “knights of faith,” filled with the Spirit of God.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] As with last week’s blog, this week is substantially based on Frederica Mathewes Green, The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God (Brewster Mass: Paraclete Press, 2009-2010).

[2] Alfred North Whitehead, Process and Reality (New York, NY: The MacMillan Company, 1929, 1957), 128.

[3] Alfred North Whitehead, Modes of Thought (New York, NY: The Macmillan Company, 1938, 1966), 166.

[4] Soren Kierkegaard, Fear and Trembling, tr. Alastair Hannay (New York, NY: Penguin Books, 1985), 68-69 (emphasis added). I have taken small liberties to make Hannay’s translation more readable.

Recently, I’ve renewed my interest in what’s known in the Orthodox Church as “The Jesus Prayer.” It’s interesting to see how, in some ways, the Jesus Prayer resembles what some Western mystics call Centering Prayer, which uses a word, phrase, or image to guide and focus the mind of the person praying.[1] I have written about Centering Prayer in the past because, many years ago, I was introduced to this kind of prayer and, for a long time, was a practitioner through a group that met monthly at a local Episcopal Church near the one I served. I found that Centering Prayer was a way of opening my mind to listen receptively for and to God and to receive a kind of calm openness to God, especially in trying circumstances and when making difficult decisions.

The Jesus Prayer

The Jesus Prayer is much older than the Centering Prayer Movement. References to the prayer appear in the writings of the Church Fathers, and it has been practiced throughout the ages. In Orthodoxy, the Jesus Prayer is usually a variation of “Lord Jesus Christ, Son of God, have mercy on me, a sinner” (Luke 18:38). Some people use a shorter version that simply goes, “Lord Jesus Christ, have mercy on me.” Others, including me, use a slightly longer version that goes, “Lord Jesus Christ, Son of the living God, have mercy on me, a sinner.” I find that adding the phrase “living God” helps me focus on the fact that God is personally alive and present in my life. The precise wording is up to the practitioner and his or her spiritual guide.

Most people who begin practicing the Jesus Prayer do so with very little or limited instruction. In my case, I read a little book called The Way of the Pilgrim, and from that book I began to practice on my own.[2] Later, I read part of what is known as the Philokalia, a selection of the wisdom of the great fathers of Orthodox mystical prayer.[3] (I’m not sure this is the best way for most people. The Philokalia can be complicated, and some translations are archaic. I think a modern introduction, like Frederica Mathewes Green’s The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God, is both more readable and more understandable.)[4] Only after some time was I able to talk to an Orthodox priest who himself practiced the prayer.

Some practitioners suggest gently synchronizing the prayer with your breathing. When practicing the Jesus Prayer, you might find it helpful to associate the first part (“Lord Jesus Christ, Son of God”) with your inhale and the second part (“have mercy on me, a sinner”) with your exhale. As you breathe in and out, the prayer can gradually feel more natural and even seamless, until the words fade and your breath itself becomes the prayer. This is why the prayer is often called the “Prayer of the Heart.” The idea is to learn to “pray without ceasing,” as Paul says in his letter to the Thessalonians: “Rejoice always, pray without ceasing, give thanks in all circumstances; for this is the will of God in Christ Jesus for you” (1 Thessalonians 5:16-17).

A second aid in praying the prayer is the use of a prayer rope. A prayer rope is a loop made of woven knots, often in the shape of a cross, with thirty-three (the years of Christ’s earthly life), fifty, or even up to 100 knots. It is used to keep track of repetitions of the Jesus Prayer and often helps keep one’s mind from drifting (at least this is true for me).

Building a Relationship with Christ

The Jesus Prayer connects with the entire point of Orthodoxy discipleship,  which is developing a deep transforming relationship with Christ. The Orthodox have a doctrine they call “theosis.” It is similar to what Protestants call “Sanctification,” but there is a difference. The idea of theosis is that the believer will not merely become like Christ or be somewhat conformed to Christ’s character in our actions, but will, in fact, become deified to the extent a human being can by inviting God in Christ into their life.

In other words, the prayer “Lord Jesus, son of God, have mercy on me, a sinner,” is designed to transform us from sinners into the image of God revealed in Christ. This is part of a process in which our darkened human nature is restored to God’s original intent in creating the human race. Theosis involves a progression in the Christian life.

1. The Carnal State. We begin in a situation where we simply act according to our instincts and are driven by the passions of the flesh. In this situation, we are incapable of truly good judgment because we’re under the control of what Paul refers to as the powers and principalities of our fallen world. We are captured by the darkness.
2. The Beginner’s State. In a second phase of our spiritual life, we have accepted Christ and developed a relationship with God, but we are only capable of halting, beginner’s progress toward moral and spiritual maturity.
3. The Intermediate State. In the third stage, which I think is where most people strive to be, we have good sense and good judgment and are able to judge rightly the moral and spiritual consequences of most situations. However, in this stage, we are still, in some sense, pragmatically interested in the faith that works for us. We are still, in some ways, captured by our own human nature.
4. The Transcendental State. In the final stage, which the orthodox believe few attain, we obtain a kind of transcendental enlightenment in which a person acts according to the perfect judgment that only those who have escaped the control of their passions can attain.

In the first state, we have not even begun to seek Christ and the spiritual life. We act carnally and unnaturally and have very poor judgment. In the second stage, we are able, to some degree, to overcome our passions and desires, but we are still beginners in the spiritual life. In the third stage, we have good sense and judgment and, as far as we are capable, can act in our own best interests and the best interests of others. In the final stage, we have stable spiritual judgment about the things of this world and of God—but we are capable of seeing things from what might be called “a God’s-eye point of view.”

In a beautiful passage, two authors of the Philokalia give the following description of the four stages:

The first is like a traveler in the deepest night and impenetrable darkness. Wandering in unrelieved blackness that envelops him on all sides, he neither sees himself nor judges himself; he does not even understand where he is going or where he puts his foot. As the Savior says: “He that walketh in darkness does not know where he is going” (John 12:35).

The second is like a man walking on a clear night lit by the stars. In their feeble glimmer, he walks slowly, often stumbling over the stones of injudiciousness and constantly falling down. This man sees himself and judges himself a little, but as in deep shadow, as is written: ‘Awake you that sleep, and arise from the dead, and Christ shall give thee light’ (Ephesians 5:14).

The third is like a man walking on a calm night when the moon is full. Guided by the moon’s light, he walks more surely and moves forward. He sees himself as in a mirror and judges himself as well as his fellow-travelers, as it is said: ‘Ye do well that ye take heed’ (to the word of prophecy), ‘as unto a light that shineth in a dark place, until the day dawn, and the day star arise in your hearts’ (2 Peter 1: 19).

The fourth is like a man who walks at clear noontide, in bright sunshine. Such a man sees himself clearly, as in the light of the sun, and judges with full truth both himself and many others.[5]

This is a good place to introduce another term associated with the Jesus Prayer, Hesychia. The term refers to stillness, rest, or quiet. The goal of the Jesus Prayer and, indeed, of Orthodox spiritual disciplines is a state of quiet before God. Through the constant repetition of the Jesus Prayer, the practitioner can be brought to a state of deep inner quiet in which union with God is achieved. The Jesus Prayer is as old as the Desert Fathers, who practiced it in their desert retreats. The technique was used and refined on Mount Athos by the monks who lived and worshiped there. In the fourteenth century, a monk named St. Gregory Palamas defended it when its practice became controversial. His views were ultimately adopted by the church.

The Biblical Basis

Evangelical believers and others sometimes ask whether the practice of the Jesus Prayer is “biblical.” If one reads the Philokalia, one finds numerous references to the Old and New Testaments on nearly every page and certainly by every author. In the New Testament, we often see Jesus going off alone to pray in the wilderness. In Matthew, a woman comes to Jesus and cries out for healing, “Have mercy on me, O Lord, son of David” (Matthew 15:22). In Luke, we see the prayer offered by someone asking Jesus for healing, “God, be merciful to me, a sinner!’ (Luke 18:13). In the letters of Paul, he urges us to “pray without ceasing” (1 Thessalonians 5:17). In the Way of the Pilgrim, it is this verse about “praying without ceasing” that begins the anonymous writer’s account of the pilgrim’s journey into the prayer, and it is often cited as the foundational basis for the practice.

The Jesus Prayer and Faith

Protestants and others often ask whether the practice of the Jesus Prayer and other spiritual disciplines is a substitute for faith? The answer is a clear “No.” Throughout the ages, practicing any spiritual discipline, including the Jesus Prayer, is not a substitute for faith. It is a response to faith. This is why the authors of the Philokalia make the distinction between the common person who has no interest in spiritual things and the stages of a disciple’s development who takes the call to become like Christ seriously. St. Maximus puts it this way:

The cause of the bestowal of one or another Divine gift lies in the measure of every man’s faith. For as much as we believe, so we have the power of zeal to act according to our belief. Therefore, a man acting according to faith reveals by his actions the measure of his faith and receives grace in proportion to his faith. And a man who does not act according to faith reveals the measure of his unbelief in proportion to his idleness and, owing to his lack of faith, is deprived of grace.[6]

Each person receives a spiritual gift, including the gift of praying without ceasing, because through faith that individual is given the spiritual ability to receive it from God, along with the gift and the mercy it brings. Those without faith do not receive spiritual gifts, and no amount of practice can replace God’s own action. Therefore, faith is necessary. Practitioners of the Jesus prayer respond in acts of faith to the faith they have in Christ. The prayer is a kind of work of faith.

There are dangers in practicing the Jesus Prayer, as with any spiritual gift or practice. There is always the danger of misuse, pride, and using the prayer in ways contrary to God’s love and wisdom. For this reason, almost every book on the Jesus Prayer recommends having a spiritual director or priest to whom one is accountable in the practice of the prayer and to whom one reports one’s experiences. Accountability is always the best way to avoid misuse of any gift.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

 ¹ The work of Thomas Keating and his associates to reintroduce contemplative prayer into the West is well known. For a good introduction to Centering Prayer, see Cynthia Bourgeault, Centering Prayer and Inner Wakening (Cambridge, MA: Crowley Publications, 2004).

[2] Anonymous. (1991). The Way of a Pilgrim; and, The Pilgrim Continues his Way (R. M. French, Trans.). Harper San Francisco. (Original work published ca. 1800s). There are many fine translations and editions available.

[3] See, Writings from the Philokalia on the Prayer of the Heart translated by E. Kadloubovsky and G. E. Palmer (London, ENG: Faber and Faber), 215-216. Once again, I recommend a modern translation. I am using this shorter, Russian abbreviation rather than the multivolume set often referred to today and by scholars.

[4] Frederica Mathewes Green, The Jesus Prayer: The Ancient Desert Prayer that Tunes the Heart to God (Brewster Mass: Paraclete Press, 2009-2010).

[5] This and the entire section is from the Monks Callistus and Ignatius, “Direction to Hesychasts” in Writings from the Philokalia on the Prayer of the Heart translated by E. Kadloubovsky and G. E. Palmer (London, ENG: Fabier and Faber), 215-216. I have reformatted and modernized the language just a bit for clarity.

[6] Id, 211.

Roe v. Wade, perhaps the most debated and in some quarters, vilified Supreme Court opinion of the 20th century, arose from appeals in Texas and Georgia challenging their state abortion laws.[1] In Roe, the Court recognized (or created) a right to abortion, building on its earlier decision in Griswold v. Connecticut.[2] The majority opinion, written by Justice Blackmun, acknowledged the abortion debate’s emotional and moral dimensions. In the end, however, the majority ruled both the Texas and Georgia statutes unconstitutional. Because the Texas and Georgia laws were similar to those in most states at the time, the decision effectively created a universal right to abortion in the United States.[3]

Before I begin, I want to say a word to those who support Roe. I intend to write two blogs on Roe and its overturning. In the second blog, I promise to give due credit to those in the minority, as I have done here. By this, I do not mean to apologize for my views on Roe, which I am well aware some readers will reject and have a right to do so.

Controversy and Impact

To say the decision was controversial is to understate its impact. Supporters of abortion rights hailed the decision.On the other side of the argument, Roe immediately led to the creation of a “pro-life movement” determined to overturn it. It has been and remains an issue in state, local, and national elections. Politically, the decision led to a realignment within the Democratic and Republican parties, as each became more uniformly aligned with one side of the debate, losing members to the other party who disagreed with their position on Roe. The result was an increase in the political polarization we see today.

The decision’s impact was felt among American religious groups as well. What are sometimes called “the Mainline Churches” largely embraced the decision, giving rise to pro-life ministries within every mainline church. Evangelical groups generally opposed the decision on moral grounds and became home to many departing mainline members. Roman Catholics and evangelicals, once suspicious of one another, united in their opposition to Roe and its results.

Planned Parenthood of Southeastern Pa. v. Casey and Beyond

Following Roe, the Court entered a period of both upholding and limiting the decision’s scope, allowing greater flexibility for states to regulate abortion. As I shall point out, the Court was forced by its own decision to engage in case-by-case decision-making as it weighed questions such as when life begins, when a fetus is viable, what rights parents and spouses might have, and other consequences of Roe. In the end, the fundamental incoherence of the Court’s initial decision caused the entire edifice to fail.

Numerous subsequent Supreme Court decisions in the area of abortion did not create a consensus as to the scope of Roe or the parameters of local state power. Finally, in Planned Parenthood of Southeastern Pa. v. Casey, the Court upheld Roe, clearly grounding Roe’s justification in the 14th Amendment and attempting to find a way to resolve the conflict Roe had created.[4] Casey granted the states more leeway by also holding that states have a “substantial interest in potential life,” leading to the conclusion that not all regulations were prohibited. Casey instituted an “undue burden standard” as the appropriate means of reconciling the State’s interest with the right created by Roe.[5]  While these decisions upheld the central holding in Roe, they returned considerable power to regulate abortion to the states.

Over the years, in case after case, the scope of Roe was gradually reduced as the Court was faced with the necessity to review numerous attempts by state legislatures to restrict abortion, which disagreed with the open-ended nature of the decision. Just a few of these include:

• Planned Parenthood v. Danforth(1976), blocking a law requiring spousal consent for abortion.
• Maher v. Roe(1979) permitting states to exclude abortion services from Medicaid coverage.
• Colautti v. Franklin(1979) striking down an unconstitutionally vague Pennsylvania law requiring physicians to try to save the life of a fetus that might have been viable.
• Harris v. McRae(1980), upholding the Hyde Amendment, a federal law that proscribed federal funding for abortions except when necessary to preserve life or as a result of rape or incest.
• In  v. Matheson(1981), upholding a law requiring parental notification when the patient is a minor living with parents.
• City of Akron v. Akron Center for Reproductive Health(1983), invalidating a wide range of limitations on abortion, such as a waiting period, parental consent without judicial bypass, and a ban on abortions outside of hospitals after the first trimester.
• Thornburgh v. American College of Obstetricians and Gynecologists(1986) striking down a law that required informed consent to include information about fetal development and alternatives to abortion.
• In Webster v. Reproductive Health Services(1989), upholding rules requiring doctors to test for viability after twenty weeks and blocking state funding and state employee participation in abortion services.
• Rust v. Sullivan(1991) upheld a ban on certain federal funds being used for abortion referrals or counseling.
• Hill v. Colorado(2000) upholding a law limiting protest and leafletting close to an abortion clinic.
• Stenberg v. Carhart(2000) striking down Nebraska’s ban on the dilation and extraction abortion procedure.
• In Gonzales v. Carhart(2007), upholding a federal ban on the dilation and extraction procedure. [6]

In the end, however, none of the Court’s decisions created legitimacy for Roe, and states continued to register their opposition by creating various regulatory schemes that narrowed the impact of its earlier decisions. Politically, neither side in the debate was completely happy with the ruling at any stage of its modification. Recently, in the case of Dobbs v. Jackson Women’s Health Organization, the Court overturned its previous decisions in Roe. [7] I will deal with Dobbs in a subsequent post.

Substantive Due Process and Roe’s Rationale

The majority in Roe based their decision on a kind of “substantive due process” test and rationale, (though failing to clearly articulate it), finding a right to abortion implicit in the 14^th Amendment via the kind of right to privacy it had previously discerned in Griswold.[8] The classic substantive due process test is whether there is a rational relationship between the law and a valid legislative objective:

Substantive due process asks the question of whether the government’s deprivation of a person’s life, liberty or property is justified by a sufficient purpose. Procedural due process, by contrast, asks whether the government has followed the proper procedures when it takes away life, liberty or property. Substantive due process looks to whether there is a sufficient substantive justification, a good enough reason for such a deprivation. [9]

In other words, if the Constitution protects a substantive right (such as freedom of speech and religion), that right can be abridged only if there is sufficient justification for such a taking. Procedural due process asks only whether the proper procedures have been followed. In Roe, the majority, drawing on Griswold, found in the 14th Amendment and other vaguely referenced provisions of the Constitution a right to abortion. Leaving aside the much-criticized reasoning of Griswold, having “found” this right in the “penumbra of privacy,” the Court needed to identify a reasonably unassailable basis for doing so. It failed to do so.

A continuing problem with Roe concerned its reasoning. The majority decision reviewed the history of abortion, making certain claims that proved historically dubious and ultimately helped those who opposed the decision. At the time, Justice Rehnquist pointed out some of these inaccuracies, which became more numerous as time passed.[10] Eventually, in Dobbs, the majority stated:

Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion. No state constitutional provision had recognized such a right. Until a few years before Roe was handed down, no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware. And although law review articles are not reticent about advocating new rights, the earliest article proposing a constitutional right to abortion that has come to our attention was published only a few years before Roe.

Not only was there no support for such a constitutional right until shortly before Roe, but abortion had long been a crime in every single State. At common law, abortion was criminal in at least some stages of pregnancy and was regarded as unlawful and could have very serious consequences at all stages. American law followed the common law until a wave of statutory restrictions in the 1800s expanded criminal liability for abortions. By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow. Roe either ignored or misstated this history, and Casey declined to reconsider Roe’s faulty historical analysis.[11]

Justice Blackmun, who wrote the decision, had prior experience with the Mayo Clinic and the Cleveland Clinic and even traveled to a clinic to conduct research while writing his decision.  One common observation about Roe is that Blackmun seemed to be as concerned to protect doctors as their patients, and showed little concern for the fetus or an understanding of family and other dynamics involved. Thus, as one sympathetic commentator puts it, “The most common explanation of how this modest man came to produce such an immodest decision draws on Blackmun’s background as resident counsel for the Mayo Clinic and his admiration of the medical profession.”[12] As one critical commentator puts it:

Justice Blackmun’s amateur dissertation on medical ethics, including the Hippocratic Oath, and on ancient philosophy has been challenged on several points and been revealed as based primarily upon biased pro-abortion sources. The more fundamental question, however, as put by one commentator, is “why Plato and Aristotle should be considered authority for such a controversial moral and political issue, or how the support of philosophers provides a persuasive legal or institutional argument for the Court’s expansion of privacy rights. ” Surely Justice Blackmun did not mean to suggest that, because infanticide also was practiced in the ancient world, a constitutional right to infanticide should follow. And yet, Justice Blackmun offered extraneous non-legal observations of questionable accuracy to justify judicial activism.[13]

Limitations and the “Trimester Approach”

Once the Court identified a right in the Constitution and how it applies under the law, it needed to clarify the situations where states could legislate in this area. This means determining when a state’s interest was strong enough to justify interfering. In Roe, the Court decided that women have a constitutional right to privacy, including the right to abortion, which could not be restricted without good reason. The decision further acknowledged that reasonable limits on this right could exist. However, over time, the approach the Court used to define these limits proved to be increasingly inadequate and often illogical.

One of the most difficult elements of Roe was its setting out a “trimester approach” to dealing with when the state might have a controlling interest in regulating an abortion. Under this approach, the pregnancy period into three trimesters. During the first trimester, the decision to terminate the pregnancy was solely at the discretion of the woman. There could be no compelling state interest. After the first trimester, the state could “regulate procedure” provided there was such an interest. During the second trimester, the state could regulate abortions in the interests of the mother’s health. After the second trimester, the fetus became viable, and the state could regulate or outlaw abortions in the interest of the potential life except when necessary to preserve the life or health of the mother.[14]

The courts’ problem with the trimester approach is simple: the viability question is not straightforward. As one expert put it, “Roe v Wade is based on the trimester/viability concept. However, both concepts seem to be biologically ill-founded and are likely to contribute to confusion regarding abortion laws.”[15] In subsequent cases, the Court faced difficult decisions in which the judges’ personal preferences inevitably seemed to influence the outcome. In some, such as Gonzales and Stenberg, the decisions seem to have been motivated not by conviction about justice but by changes in the composition of the Court. This was a clear indication that Roe was ultimately not founded on the language of the Constitution but on the preferences of the unelected members of the Supreme Court on a matter of public policy.

Summary Critique

As I complete this brief review of Roe, I want to return to something mentioned earlier. Roe was really two cases, Roe v. Wade and Doe v. Bolton.[16] The Texas case (Roe) represented an older, more restrictive approach, while the Georgia case (Doe) represented a newer, more liberal approach. In other words, Texas and Georgia represented different approaches to the issue. Other states were similarly divided. The Texas case represented an older approach, while the Georgia case involved a newer approach based on the legislature’s analysis of the American Bar Association proposal of the time.

By “constitutionalizing abortion” in the way it did, the Court cut off the power of states to adjust their laws—and their responsibility to do so. The citizens of the United States have the power to propose and adopt amendments to the Constitution, and they have even more power to address their state legislatures. The impact of Roe was to take this right away from the citizens and to take the right to adapt to local circumstances away from state legislatures. In the process, it set off a firestorm of opposition and undermined the Court’s standing for over half a century.

This weakness is closely related to a second weakness: to reach its decision, the court had to weigh the public value of abortion as a legislature might and determine matters of the public interest and the exercise of police powers to regulate the conduct of its citizens, a task for which nine judges in Washington are not well suited. Subsequent to Roe, the court had to abandon the trimester system in favor of Casey’s “undue burden” standard, which further embroiled the court in determining, on a case-by-case basis, what constituted an undue burden. By doing so, it became a kind of federal abortion review agency without the presumption of validity of its decisions to protect it from attacks. As previously mentioned, Blackmun’s historical arguments were immediately attacked by members of the court and others. In some cases, Blackmun had either misstated or understated the historic opposition to abortion, at least since the Second Century.

Finally, and I think most damaging, was that the 14^th Amendment was not intended to address abortion. The 14th Amendment was designed to ensure former slaves’ access to the rights of every other American. In particular, it was intended to prevent states from denying former slaves the voting and economic rights enjoyed by all Americans. Without question, the 14^th Amendment was intended to enshrine the notion that all citizens, regardless of race, color, or socio-economic class, had the right to “life, liberty, and property,” rights that were inalienable.

After the Civil War, the Court mistakenly began to use the amendment to protect corporate property rights. The phrase “without due process of law” almost certainly refers to the fact that people can be executed, imprisoned, and their property taken under certain circumstances if due process of law is followed. Its extension to other matters has consistently led the Court into judicial mistakes on the left and the right of the political spectrum.

As Rehnquist pointed out in his Roe dissent:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. … By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.[17]

When writing these blogs, my intention is always to be fair. In Roe, Justice Blackmun was breaking new constitutional ground, and the Court was intoxicated by the success (as it seemed at the time) of Griswold. As is often the case, he was also convinced of the righteousness of his cause, which may have led him to underestimate both the decision’s political impact and the attacks on his legal reasoning that were sure to come.

In the end, Roe represents a continuing problem with the Court in the area of Substantive Due Process: the extension of the 14^th Amendment beyond the Bill of Rights into areas it could not possibly have anticipated and that should not apply without a constitutional amendment authorizing the right the Court wishes to defend. This lack of textual support for the rights being created makes them nearly impossible to defend over time. In addition, it makes the Court an unelected legislature without the legitimacy of having been elected. Americans have become accustomed to using the Court to achieve objectives that might be difficult to attain through Congress or state legislatures. However, abortion and similar issues should be resolved by those best able to weigh public opinion and accountable to the public for their decisions, not by the Courts.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] Roe v. Wade, 410 U.S. 113, (1973), hereinafter “Roe.”

[2] Griswold v. Connecticut, 381 U.S. 479 (1965), hereinafter “Griswold.”

[3] I will return to this aspect of the case in the conclusion. Roe overturned not only a restrictive law (Texas) but also a law modeled on the ABA model statute.

[4] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), hereafter “Casey.” While the Court would not overrule Griswold, it was obvious that a majority of the Court had come to see Griswold’s logic as flawed.

[5] Id.

[6] Roe v Wade and Supreme Court Abortion Cases: Reproductive Rights in the Untjed States Explained The Brennan Center for Justice(September 28, 2022) found at https://www.brennancenter.org/our-work/research-reports/roe-v-wade-and-supreme-court-abortion-cases(downloaded May 13, 2026).

[7] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organization, et al. , 597 U.S. ___ (2022).

[8] Like Griswold, the Court did not fully articulate the ground of its holding, which is on reason Casey is important. In Casey it embraced the 14^th Amendment as the basis of their decision, abandoning the reasoning of Griswold, which by this time had been critiqued from the left and right. In the author’s view, Griswold should be overturned.

[9] Chemerinsky, Erwin (1999) “Substantive Due Process,” Touro Law Review: Vol. 15: No. 4, Article 15. Available at: https://digitalcommons.tourolaw.edu/lawreview/vol15/iss4/15 (downloaded May 13, 2026), at 1501. In my view, the source of Roe’s incoherence is to be found in the faulty logic of Griswold.

[10] Justice Rehnquist dissenting. “To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment.” Roe, 174.

[11] Dobbs, at B1. I am quoting this at length, but I do not intend to discuss Dobbs per se in this blog. It awaits a future blog.

[12] Nan D. Hunter, Justice Blackmun, Abortion and the Myth of Medical Independence, 72 Brook. L. Rev. (2006). Available at: https://brooklynworks.brooklaw.edu/blr/vol72/iss1/6 (downloaded May 14, 2026).

[13] Gregory C. Sisk, Willful Judging of Harry Blackmun, The, 70 MO. L. REV. (2005) Available at: https://scholarship.law.missouri.edu/mlr/vol70/iss4/6

[14] See Roe, at 164-65 Daniel A Farber, Did Roe v Wade Pass the Arbitrary and Capricious Test 70 Missouri Law View, 4 (2005), 1253.

[15] F. K. Beller & C.A. deProsse, Confusion of Trimester and Viability: Consequences for Abortion Laws in the United States and Abroad 37 Journal of Reproductive Medicine 6 (1992), 537-40.

[16] See note 1 above.

[17] Roe, at 174-175.

John Mirador, who becomes Juan de la Cruz Bardero, appears in all three of the Arthur Stone books. A former special forces officer, Bardero first appears as the “Watcher,” an operative sent into sensitive areas to watch and report. Unfortunately, in Marshland, Mirador is betrayed, nearly killed, and must hide from the government he faithfully served. It is the beginning of a new life.[1] Mirador grew up on a ranch in South Texas of a family of immigrants who came from Mexico in the 1920’s, when Mexico experienced political and economic unrest. Orphaned in his teenage years, he ended up enlisting in the armed forces and served in Viet Nam. A special forces operative, he was still active in the early 1980’s when Marshland takes place.

At the beginning of Marshland, Mirador is betrayed by someone. He was supposed to die during his mission in Mexico but fate saves him. Searching for a safe hiding place, his family in Mexico send him to a monastery outside of San Miguel de Allende, where he becomes an oblate in the Benedictine order while in hiding.  In Marshland, he is part of the uncovering of the connections between events in Mexico and the Texas Savings and Loan Crisis. During this time, he becomes friends with Arthur Stone and Ahn Winchester. After the events of Marshland, Mirador, now Juan Bardero, becomes a business man in San Miguel with Arthur, Gwynn, and Ahn as business partners.

In Peace at Battle Mountain, Arthur is forced to investigate a suspicious death in Los Cabos on the Pacific coast of Mexico. Bardero is the person who is responsible for personally undertaking the investigation. In the process, he meets and falls in love with Maria Mendoza, who appears in Marshland as well. Maria already has a child by a short-lived relationship. He appears again in Leviathan and the Lambs. Now in late middle age, he is called upon to assist Arthur in saving a member of his family.

The Decent Man

In the series, Bardero represents the decent man. He faithfully serves is country, his family, and his friends, often without being seen and without recognition. He is one of countless people who serve their nation and families in good and bad situations, not always agreeing with what is being done, but doing their own part with honor and strength. Not surprisingly, his life is punctuated with drama that others create while he brings a justice and health to the situations in which he becomes involved.

I am writing this on Memorial Day 2026. Memorial Day is a day in which we celebrate the many men and women who placed themselves in harm’s way to protect the liberties we enjoy. As I write this there are many, many John Mirador’s quietly going about the business of protecting our freedoms while decently living out their own private lives. Some of them are far from home and loved ones, a few I suspect are in very dangerous and hostile places, watching.

My Father

On Memorial Day and other days, I remember and celebrate the life of my father. Born in 1921, he was of draft age when World War II began. He served first in the Marine Corps and then in the Navy commanding a small ship as a First Lieutenant. After the war, he joined the FBI where he served for another thirty or so years. After retiring from the FBI he was a City Counselman and then Mayor of Springfield, Missouri. If you put it all together, he served our country in one capacity or another for fifty or more years—all of his adult life. He did not get rich in government or politics. He and Mom struggled to put two sons through college and to pay off debts from an accident that nearly ended both their lives. The driver of the car that hit them was uninsured. John Mirador is a fictional character. Dad was the “real deal,” decent man who did his duty to God, family and country and expected little in return.

Our news today is filled with political stories. One of them that caught my eye is about a candidate for public office who refuses to salute the American flag. I posted a simple reply: “You cannot lead with wisdom a person or organization you don’t love.” There is plenty to be said for developing a critical attitude towards our government and our culture. However, there is a limit. When people no longer love a country, a culture, a business, a church, or whatever, they cannot possibly heal it. All they can do is destroy—and what they build in its place will likely be a harmful monstrosity born of anger and rage instead of love and care for others.

Conclusion

This Memorial Day we are home with one of our children and a grandchild visiting. Soon, it will be June 6. During the seventy fifty anniversary year of D-Day, Kathy and I made a pilgrimage to Normandy. As a student of the battle, I enjoyed seeing the reality of what I had seen on maps and read about in books. But the most moving moment was visiting the cemetery where those who fell that day are buried. Rows upon rows of young men who never had a family, a career, children, or grandchildren. Instead, in terrifying and terrified wave after wave they landed on that beach behind their graves where they died for a nebulous notion of freedom and America’s call to preserve that freedom. My Dad and Grandfather came back from World War II. Today, we celebrate the lives of those who did not.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] This blog, as have three recent blogs deals with what I call the Arthur Stone series, written under the pen name,  Alystair West, The books are Marshland (Westbow, 2023); Peace at Battle Mountain (Quansus, 2024); Leviathan and the Lambs (Quansus & Bookbaby, 2026), all written under the pen name Alystair West and available on Amazon, Barnes & Noble, and from other vendors.

 

A contributor on X, Brivael Le Pogam, wrote a posting that I want to share with you with my comments. Those who are not on X can find him on his website.[1] I do not normally simply re-print another’s work, and I am not doing so today. However, I felt that what he is saying is so important that it needed to be sent along to my friends. He takes a subject of immense complexity and gives an introduction to what is deeply wrong with our elites in a few sentences. The bold type shows my reflections on what Le Pogam wrote. Here it is in its entirety.

“I want to offer my apologies, on behalf of the French, for giving birth to French Theory (which in turn gave birth to the worst of all ideological monstrosities: wokism).”

It’s helpful to refer to this as “Deconstructionism,” “Continental Postmodernism,” or even intellectual nihilism, which can go to extremes. Calling it “French,” a term a French person might use, adds a layer of race to the conversation. The term “Woke” has an interesting history. I think it is linked to the Enlightenment and Kant’s idea of “waking up” from his intellectual slumber to develop his idealistic theories. The term now often suggests becoming aware of racial, sexual, intellectual, and other injustices, as well as how society can be organized to benefit some groups over others. 

“We gave the world Descartes, Pascal, and Tocqueville. And then, in the intellectual ruins of post-1968, we gave Foucault, Derrida, Deleuze. Three brilliant men who forged, in the elegance of our language, the ideological weapon that today paralyzes the West.”

Descartes was an early Enlightenment figure, and Pogam is tracing the French Enlightenment from its beginning through its decay as French intellectuals turned against it, yet could not return to the innocence of the Age of Faith—that is, the Age of Roman Catholicism in Western Europe and the intellectual faith of the Reformation. Pascal was a French Catholic and a devout Christian. Tocqueville, who has been a subject of these blogs, was a French political theorist who visited the United States and wrote Democracy in America. [2]

“We must understand what they did. Foucault taught that truth does not exist, that there are only power relations disguised as knowledge. That science, reason, justice, the medical institution, the school, the prison, sexuality—everything is merely a staging of domination. “

The “postmodern age” is strongly Nietzschean. The reduction of all claims to Truth, Goodness, and Beauty to power relations enters Western thought through him. In such a world, there can be no real community, truth, reason, justice, or any other “noetic value.” Foucault focused his critique on the exercise of power within social systems to construct and maintain institutions of power. He saw history as consisting of thought systems that determine social activity and are constructed to serve the ends of those in power.

“Derrida taught that texts have no stable meaning, that every signifier slips away, that every reading is a betrayal, that the author is dead, and the reader reigns supreme. Deleuze taught that we should prefer the rhizome to the tree, the nomad to the sedentary, desire to the law, becoming to being, difference to identity.”

Deconstruction is a philosophical approach introduced by French thinker Jacques Derrida. His technique examines texts, binaries, and cultural institutions to reveal hidden assumptions, internal contradictions, and reliance on arbitrary structures. This approach ultimately shows us that texts have no fixed “meaning” and are unstable, and that meaning cannot be fully captured. If words are simply signs that create or sustain power relationships, then texts can have no absolute meaning. There is no definitive “truth,” “goodness,” or “beauty” that words can reliably point to. This idea influences modern debates and discussions widely and is present in movies, the media, and even politics. It is widely popular in academia. It suggests that texts have no specific meaning, and the author’s intent isn’t always the main point. Some see this as a challenging perspective within “reader-response” theory. While it offers valuable insights, it can also be viewed as a revolutionary ideology in an extreme sense. It emphasizes change over stability, which can sometimes be harmful to people, families, communities, and society as a whole.

“Taken individually, these are debatable theses. Combined, exported, and popularized, they form a system. And that system is a poison.”

Like all heresies, each of these movements contains a small element of truth that has been elevated into a theory of knowledge and existence. Words are used to create power relationships, but they are also used for many other purposes, such as expressing love, discovery, awe, friendship, appreciation, and the like. In a way, deconstructive postmodernism reflects the nihilistic end of reductive critical thinking. It is reason turned in on itself in science, morals, law, politics, and other areas of inquiry. It can also give rise to twisted moral positions and the justification of violence.

“For here’s what happened. These texts, unreadable in France, crossed the Atlantic. The departments of Yale, Berkeley, and Columbia absorbed them in the 1980s. They found there a soil that did not exist among us: American Puritanism, its racial guilt, its obsession with identity. French Theory married this substratum, and the child of that union is called wokism.”

Having studied philosophy and worked in theology earlier in life, I can honestly say that the specialized language can sometimes be quite difficult to understand. Unfortunately, some academics use this jargon as a mask for superficial ideas or a lack of real understanding. The ideas of American individualism, materialism, and the relentless pursuit of prosperity, peace, and personal happiness created ideal conditions for this theory, especially during the 1960s when a whole generation moved away from traditional values. At the same time, critical theory, with its Marxist leaning and skepticism of capitalism, traditional faith, and Western societal structures, started gaining ground in academic circles. Sadly, this led to a harmful influence on academia, the intellectual community, the media, the arts, and almost everything it touched.

In American English, “woke’ originally meant people who became aware of the injustices of racism. These days, however, the term has often been co-opted by political activists, many of whom lean far-left or socialist, and whose broader goals extend beyond just fighting racism. 

“Judith Butler reads Foucault and invents performative gender. Edward Said reads Foucault and invents academic postcolonialism. Kimberlé Crenshaw inherits the framework and invents intersectionality. At every step, the matrix is French: there is no truth, there is only power, so every hierarchy is suspect, every institution is oppressive, every norm is violence, every identity is constructed and thus negotiable, every majority is guilty.”

The French had one of the most oppressive colonial policies, perhaps only surpassed by the Belgians. In the end, feelings of guilt over past racism and colonial history fueled modern frustrations against current institutions. Once again, there’s a reasonable sense of guilt, but some postmodern thinkers turn it into a harsh rejection of Western culture. Apart from Theodore Roosevelt’s efforts, the United States has generally been more supportive of anti-colonial perspectives. In the hands of critical theorists, it is often combined with revolutionary Marxism and a hatred of all Western cultural institutions.

“That’s how three Parisian philosophers, who probably never imagined their practical consequences, provided the operating software to an entire generation of activists, university bureaucrats, HR managers, journalists, and legislators. That’s how we ended up with a civilization that no longer knows how to say whether a woman is a woman, whether its own history is worth defending, whether merit exists, or whether truth can be distinguished from opinion.

It’s shit for one simple reason, and it must be stated calmly. A civilization stands on three pillars: the belief that there exists a truth accessible to reason, the belief that there exists a good distinct from evil, the belief that there exists a heritage to be transmitted. French Theory set out to dynamite all three. Not out of malice. Out of intellectual play, fascination with suspicion, hatred of the bourgeoisie that had nurtured them. But the result is there. An entire generation learned to deconstruct and never learned to build. An entire generation knows how to suspect and no longer knows how to admire. An entire generation sees power everywhere and beauty nowhere.”

I apologize because we French bear a particular responsibility. It’s our language, our universities, our publishers, our prestige that gave this nihilism its chic packaging. Without the legitimacy of the Sorbonne and Vincennes, these ideas would never have crossed the ocean. We exported doubt the way others export weapons.

What is being built now, in Silicon Valley, in AI labs, in startups, in workshops, in all the places where people still make things instead of deconstructing them—that is the response. A civilization is rebuilt by builders, not by commentators. By those who believe that truth exists and is worth devoting oneself to. By those who embrace a hierarchy of the beautiful, the true, the good, and are not ashamed to transmit it.

So, forgive us. And back to work.”

Having traveled extensively in both capitalist and Marxist countries, I’ve noticed a certain spiritless starkness in much of Western society, as well as in the communist world. Sometimes, an intense focus on Right Philosophy and Right Theology can lead leaders to overlook the importance of building a wholesome society where everyone can truly flourish. This is particularly evident in the frankly nihilistic tendencies of postmodernism. Our culture often emphasizes science, materialism, and technology. In other words, we often worship power and technique, whether we admit it or not. What we need is a cultural return to the values that created our civilization and way of life, including the spiritual values that undergird the search for truth, goodness, justice, beauty, and the like.

The spirit of the Enlightenment has waned, leading to some challenging outcomes in both academic and political spheres. One significant change is the diminished belief that abstract ideals like justice are real and should guide our political and governmental decisions. This shift has resulted in a political landscape that could be described as “Nietzschean”—focused solely on a relentless pursuit of power, exercised without regard for values like truth, justice, prudence, or equity. It resembles a Hobbesian view of society, where self-interested individuals are caught in a “war of all against all.” You can see the effects in everyday life, from the breakdown of family structures to broader issues like the “economy of wars,” which threaten the well-being and growth of communities everywhere.

Just as science cannot exist without a commitment to investigating a reality independent of the observer, political and social life is debilitated when no underlying notion of justice and fairness guides policymakers’ thinking. What remains is the will to power, without effective intellectual and moral constraints beyond those imposed by the political realities of a given society. In some societies, that means little or no restraint.[3]

For those who would like to know more about postmodernism, I recommend Stanley J. Grenz, A Primer on Postmodernism (1996). It is quite readable and avoids technical jargon. Another excellent source is Postmodern Times(1994) by Gene Edward Veith. Postmodern Times is written from a Christian perspective. Finally, once again from a specifically Christian perspective, I can recommend Roger Luden’s The Culture of Interpretation: Christian Faith and the Postmodern World (1993). This book is slightly more academic. Naturally, no introduction, whether an article or even a book of a couple hundred pages, can fully replace struggling with the reality of the texts of experts. Personally, I find most postmodern oriented authors, especially the French originators, extremely difficult to digest.

 Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] He can be found on X, on Linkedin, and at https://briva.medium.com/

[2] Alexis De Tocqueville, Democracy in America tr. Henry Reeve, abridged by Patrick Renshaw (Herefordshire, UK: Wordsworth Classics of World Literature, 1998), hereinafter “Democracy in America.” This is a one volume abridgement of the original two volume set published in 1835 (vol. 1) and 1840 (vol. 2).

[2] De Tocqueville did make a report on the American prisons of the early 19^th Century.

[3] See, G. Christopher Scruggs, Illumined by Wisdom and Love: Essays on a Sophio-Agapic Constructive Postmodern Political Philosophy (Hunt, TX: Quansus Press, 2024).

 

When I began writing my first novel, Marshland, and even more the second, Peace at Battle Mountain, I naively thought that women would be very interested in the character of Gwynn Murray Stone. I wasn’t that surprised when some of my more conservative women friends expressed a bit of judgmentalism about her character. I had a professional proofreader read Peace at Battle Mountain for me who shared some of it with her sister who had read Marshland. I knew the sister quite well. One day the proofreader called to ask a question. During our conversation, she advised me that her sister had told her that she never liked the character of Gwynn. The proof of you said, “well if you don’t like Gwynn in Marshland, believe me you’re not going to like her in Peace at Battle Mountain. [1]

Peace at Battle Mountain involves Gwynn making a series of mistakes driven by a brokenness from her childhood, living with the consequences, and emerging as a whole and healed human being. I was surprised that more women didn’t enjoy her pilgrimage, which is not unlike a pilgrimage. I’ve watched more than one person make as a pastor.

In the final book, Leviathan and the Lambs, Gwynn has matured into someone with rare wisdom and insight, and a fearless courage in defense of her family. In the end, despite their separation, she is Arthur’s closest human relationship and a wise counselor. She is not the central character, as she is in Peace at Battle Mountain, but she plays a very important role in the book.

There is a simplistic form of religious faith in which one becomes a believer in a religious system, and God or the ultimate, however it conceived, prevents you from making any mistakes or messing up our lives due. Unfortunately, it doesn’t take a lot of experience as a believer or pastor to know that that’s not the case. We all make mistakes. All human beings make mistakes. Some of those mistakes haunt us for years, even for the rest of our lives. The process of overcoming the wounds of our childhood is neither quick nor easy nor automatic. Faith is about forgiveness and healing, not about attaining perfection.

Learning by Reading

Over the years, I’ve learned a lot by reading novels. I’ve learned a lot about human nature and a good bit about history. One advantage of reading a novel where someone like you make a mistake is that you have the opportunity not to make that mistake. Reading alone will not make a person wise, moral, or even capable. But internalizing great truths is never a mistake. In my own case, books like the Lord of the Rings trilogy by J.R.R. Tolkien and a book, The Glass Bead Game (sometimes printed as Magister Ludi) by Hermann Hesse, have changed and enriched my life. Our children know that at every moment of decision in my life, I usually read one of the two of them. For some reason, they have the capacity to focus my mind on the truly important and the character of those who successfully navigate the difficulties of life.

I am not so arrogant as to believe that the Arthur Stone trilogy, and is especially Leviathan and the Lambs, have the capacity that great literature possesses to mold us and shape us with a kind of nobility. Nevertheless, it is my small attempt to look at one family with their friends and associates, and how it is faith allowed them to navigate the problems of life.

Gwynn at Battle Mountain

In Peace Battle Mountain, Gwynn attends a woman’s Bible study in Houston quite by accident that begins a process of self-reflection that ultimately changes her life. I didn’t attend my first Bible study in quite the same situation, but the same result obtained. I found a direction out of the problems I had created for myself, found new friends, entered the life of faith, and ultimately met my wife. It was worth two hours in the life of a 27-year-old to begin a process that would lead to wholeness and happiness.

Gwynn Stone is also not alone in her recovery. Ahn Winchester, as always, provides a wise and spiritual guide to a deeper self-understanding and healing for Gwynn. In addition, she has law partners and family, all of whom help in her recovery. Then, of course, there is God acting by the Holy Spirit.

Healing as Becoming Like God

One of the images that can be important for contemporary people in reconnecting with faith is the image of Christ the healer. In particular, the Orthodox Church sees the life, death, and resurrection of Christ as primarily about restoring humanity to a lost or besmirched image of the divine implanted in each one of us. This healing is not merely forgiveness. Forgiveness begins a process of sanctification, or becoming like God in Christ.

The Apostle John tells us that “God is love” (I john 4:8; 4:16). The process of becoming more like God (theosis in Greek) is a process of becoming increasingly filled with the wisdom and love of God in Christ Jesus. In Peace at Battle Mountain we see Gwynn enter the process of loving unselfishly and unconditionally, a process that ultimately changes her life mentally, physically, and emotionally. In Leviathan and the Lambs a rogue agent, E. J. Mueller, has a similar experience, perhaps a bit more dramatically illustrated in the book.

Christianity as a Life

Most pastors are aware that the earliest name for Christians was “the People of the Way.” This implied that Christianity was not just “believing Jesus is the Son of God” but entering into the life of the Son of God coming to health and full humanity through inviting God into one’s life physically, mentally, morally, and emotionally. In Crisis of Discipleship, I put it this way:

Discipleship is not just about learning information. It involves a life-transforming relationship with a person—The Triune God revealed in Jesus Christ. As God is in relationship, so we must have healthy relationships in order to grow as disciples.Christians proclaim Jesus Christ as the “the Way, the Truth and the Life.” In other words, the key to abundant living is not an idea but a person and relationship with that person through which we are transformed into the likeness of the One who is the Way, the Truth, and the Life. Head knowledge is not enough. In order to know the Way, the Truth, and the Life of Christ, we must become imitators and obedient followers of Christ. As the New Testament puts it, “Christ must dwell in us richly” (Colossians 3:16).[2]

There is abundant evidence that young people today are not looking for easy answers or a faith that demands little change. Those Christian groups that provide a new way of life, healing of the past, and a discipline for the future are the most likely to grow as people find new meaning, purpose, and direction in life. What God desires is transformation, which is one of the basic messages of Leviathan and the Lambs and the entire Arthur Stone series.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] See, Alystair West, Marshland (Westbow, 2023); Peace at Battle Mountain (Quansus, 2024); Leviathan and the Lambs (Quansus & Bookbaby, 2026), all written under the pen name Alystair West. All are available on Amazon and from other vendors.

[2] G. Christopher Scruggs, Crisis of Discipleship (Richmond, Va: Living Dialog Press, 2023).

Have you ever had a secret ambition that was never fulfilled? In my case, for years, I would tell Kathy that I’d like to write a murder mystery set in a large law firm. In my early years, I worked in a large law firm and was well aware that the large number of brilliant minds and large egos make multinational law firms a wonderful place to set a murder mystery. For more than thirty years, I did nothing about realizing my dream. Then, after I retired, I decided I needed to write a novel. You can underline the “a.” I intended to write one novel.

In addition, by the time I retired, I had not only been a young lawyer but also served as a pastor and written sermons, articles, and longer works on wisdom literature, discipleship, and leadership for three congregations. In other words, I knew just a little about religion and the spiritual and moral problems people face in their day-to-day lives. Over those years, I’d also read many religious books, some of them novels. So I set out to write a novel that would combine my legal, financial, and religious experiences with a spiritual orientation. The result was Marshland, written under the pen name “Alystair West.”

By the time Marshland was finished, I’d rewritten almost every aspect of the novel to make it something it never started out to be. (Most frustratingly, almost all the names were changed.) Somewhere before Marshland was finished, I realized that it could be part of a larger work that would become Peace at Battle Mountain and Leviathan and the Lambs.[1] My one novel became three. The latest, Leviathan and the Lambs, was published earlier this year. What began as a simple murder mystery with spiritual overtones became the story of a young man, his intelligent and beautiful bride, and an entire cast of characters over the course of forty or so years.

People ask me if I’m Arthur Stone. I always quickly clarify that I’m definitely not! There’s hardly anything about Arthur Stone that’s like Chris Scruggs. On the other hand, all the characters—even the villains—reflect a piece of me because, when you write, you naturally explore your innermost character, feelings, and motivations. One character, in particular, has become especially meaningful to me over time. That’s Ahn Winchester, who enters the story as the Vietnamese wife of a partner at Winchester & Wells, Arthur’s law firm. She’s a recurring presence throughout the novels, gently guiding everyone back to their true selves and helping them find genuine happiness.

Ahn is a Roman Catholic and a mystic. Her father was Catholic, but her mother continued to practice aspects of Buddhism that are an important part of Vietnamese culture, particularly meditative prayer. Her prayer life enables her to both distance herself from problems and enter more deeply into them and their impact on those she loves. One message of the Arthur Stone novels is the benefit of what I call “meditative decision making.” The most recent novel finds her attempting to offer wise guidance even as she faces a tremendous shock.

When I started writing the Arthur Stone series, I was a Presbyterian minister who always emphasized what C. S. Lewis called “Mere Christianity,” both in my churches and in my preaching. Since retiring, I’ve had the joy of visiting many different types of churches—from charismatic to Orthodox, with worship styles ranging from contemporary to highly liturgical. One exciting aspect of writing these books was learning about different religious traditions.

Gwynn Stone is an Anglican, Arthur and his brother are Presbyterians, and one of the characters is Jewish while another is Roman Catholic. Throughout the series, especially in Leviathan and the Lambs, we meet Episcopalian priests, mystical Muslims, Buddhist monks, Jewish prayer warriors, Orthodox monks in Greece, Roman Catholic Benedictines, and others. While it’s fair to say that I’m trying to interest readers in religion and Christianity. In particular, it’s not true that I’m trying to convert anyone to a particular faith.

Each novel centers on an economic crisis. Marshland is set during the Texas Savings and Loan crisis, while Peace at Battle Mountain takes place during the time of the Enron collapse.

Leviathan and the Lambs explores the 2008 banking crisis and the years that followed. What I find particularly interesting is that all these crises reflect common flaws in human nature more than in the laws governing our financial system. People who want to take risks tend to do so regardless of the rules in place. One important message of this series is that a free market depends on morally responsible participants. Without that moral foundation, financial instability and greed-fueled crashes are inevitable.

Despite the presence of fraud, murder, and mayhem, these elements are window dressing as one looks at deeper questions of life. In the case of Leviathan and the Lambs, we meet Arthur Stone at the peak of his professional career. He is rich, honored in his profession, and unfulfilled by his accomplishments. He suffers from what the mystics call, the “Demon of the Noonday Sun,” that lethargy and weariness that often attacks us in midlife.

I have a friend who loves to include real people in his novels. I take a different approach. I go out of my way to ensure that no living person appears in any way in the novels. As you’ll learn if you read all of them, and as I often say, “If there’s any living or dead person involved in the novels, they’ve been dead for over 1000 years.” Another one of my quips about the novels is, “Although none of the people are real, unfortunately, all of the spiritual realities are very real and attack us all.” It doesn’t take more than a look at the daily newspaper to know that human nature is pretty stable and that we human beings tend to repeat the same mistakes over and over again throughout history. I bet there was violence, greed, lust, and financial fraud among prehistoric humans.

I do not want to give away any of the details of Leviathan and the Lambs, but I think many people, secular and religious, would enjoy the read. Arthur Stone’s life, like ours is not “complete”, if the word “complete” means, “I have accomplished and experienced everything I planned or desired.” All human life is a combination of success and failure, pleasure and pain, plans that are achieved and plans that are not. Learning to live within limits is a part of achieving wisdom in this life.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] Marshland (Westbow, 2023); Peace at Battle Mountain (Quansus, 2024); Leviathan and the Lambs (Quansus & Bookbaby, 2026), all written under the pen name Alystair West. All are available on Amazon and from other vendors.

This week, I intended to return to write a blog post involving my latest novel, “Leviathan and the Lambs.” Then, a gunman attempted to kill the President and perhaps his wife, cabinet members, and their families. Over the past few days, as I have read and listened to politicians and media personnel defend our unhealthy political culture, I have decided to write this blog, which is itself an update to a prior blog on the problem. Quite frankly, we should all fear for the future of our nation if we do not put this kind of behavior behind us as a nation.

The United States of America has an historic problem with political violence. Four United States Presidents have been assassinated: Abraham Lincoln, James A. Garfield, William McKinley, and John F. Kennedy. In addition, attempts have been made on the lives of Andrew Jackson, Theodore Roosevelt, Franklin Delano Roosevelt, Harry Truman, Gerald Ford, Ronald Reagan, George H. W. Bush, and Donald Trump. Presidential candidates have also been targets of assassination attempts. Attempts have been made on the lives of Theodore Roosevelt as a candidate, Robert Kennedy (successful), George C. Wallace (seriously wounded), and former President Trump. What does this say about our political culture? What does it say about our national fascination with violence? What does it say about the deluded capacity of Americans to believe that the ends justify the means? [1]

The Myth of Redemptive Violence

In these blogs, I’ve had the opportunity to introduce readers to the notion of the “myth of redemptive violence.” The Myth of Redemptive Violence holds that violence can be redemptive. The term was coined by Walter Wink, a liberal Protestant theologian at Union Theological Seminary in New York. Wink believed that American society was and is deeply affected by a subconscious belief that violence can be redemptive; that is, violence to overcome evil is warranted and even positive. Polls show that substantial numbers of members of both our political parties subscribe to this nonsense. Wink believed the myth of redemptive violence needed to be demystified to show how deeply misleading it is. For Christians, the myth is contrary to the gospel. In other words, we all need to see that this is not true. It is a myth, and we must all avoid allowing ourselves and others to be motivated by this false narrative.

From the French Revolution to Today

The problem of glorifying and accepting violence as a political tool is as old as the human race. However, it has its modern roots not so much in theology as in a culture that has lost its moorings in history and in a tradition of political accommodation and embraced the revolutionary ideas that began with the French Revolution. People were fascinated and inspired by the French Revolution, then progressively horrified by the Reign of Terror it produced. The decline of religion and morality in pre-revolutionary France made the Reign of Terror possible. At the very beginning of the modern era, a focus on power and a materialistic view of the world tended to elevate violence over wisdom and concern for others as political virtues.

Whenever governments exclude religious and moral virtues from political action, there is a tendency toward madness and excess, and the political result is violence and decay.[2] We should all be concerned by the way in which much of American culture has come to resemble aspects of the culture that produced the guillotine in revolutionary France. The statements of many current political and media celebrities are chillingly familiar to the rhetoric of that resulted in mindless slaughter at the beginning of the modern era.

We need to be concerned about how Marxism and its modern derivatives, such as Critical Theory, can and do create an immoral political culture inclined to violence. “One can’t expect to make an omelet without breaking eggs.” In 1790, Maximilian Robespierre used those words to welcome the horrific French Revolution that had begun the year before. Lenin, Stalin, Mao, and other 20th-century radicals have both voiced and put Robespierre’s slogan into practice, which involved the murder of millions of innocent people. [3]

The idea that killing a person or persons with whom one disagrees politically is part of creating a better society is sometimes called “moral inversion” or, as I would call it, twisted morality. The idea behind moral inversion is that one is entitled to violate common moral standards, for example, “Thou shalt not kill,” when violence is used to create a better social situation. The result is a kind of moralism in which any behavior, including the assassination of political leaders, can be justified on the grounds that one is trying to overcome what one believes is a great social evil.[4]

This notion that violence is justified for political reasons is easily channeled into violent words and actions by those who are infected with this disease, especially among the emotionally unstable. It is particularly common among those who have rejected traditional religion or the moral values of a culture and who are thus thrown back upon themselves and their own personal prejudices and desires in making moral commitments. In all these situations, a person who has become morally homeless falls victim to their own prejudice.

People are naturally moral, and when education or training fails to provide a proper intellectual foundation for their moral passions, those passions can spill over uncontrollably, like a river that overflows its banks. In today’s materialistic societies, this energy often finds a new outlet in revolutionary actions and violence. Preferred channels have included communism or national socialism. Sadly, the tragedies of the 21^st century have been fueled by this redirected moral energy, which has been used destructively.

Negative Politics and Media Greed

Politicians have responded to the situation by leveraging it to their advantage. By the mid-1970s, they realized it was often easier to persuade people to vote against a disliked opponent than to support their own party’s views. This marked the beginning of what we now call “negative politics” and “negative campaigning.” Such campaigns play on our natural fears and anxieties, portraying opponents as villains who must be defeated at all costs. Particularly from the left, opposing candidates are depicted as embodiments of evil, even labeled Nazis. The result is predictable. If I am opposing someone like Hitler, the kind of total war the United States waged in World War II seems justified from a political standpoint. Whether or not the truth is on my side, or love and morality matter, don’t necessarily come into play when I’m slandering a villain. What truly counts is the effort to save the world from this perceived evil. In this context, the idea of redemptive violence can be used to justify the aggressive tactics involved. The tactic is particularly tempting to the mentally unbalanced, as we have repeatedly seen.

The media has also discovered that threats of violence, sensational language, and false accusations can attract more attention and generate more advertising revenue. One of the more unfortunate aspects of cultural postmodernism is the rise of what’s called advocacy journalism, where the focus is less on helping readers or viewers truly understand the facts and more on influencing emotions and encouraging actions, often aligning with what is considered politically correct. Sadly, whether due to a lack of moral scruples or other reasons, some journalists might even support false stories they know are wrong just to attract attention and boost sales. The result has been a visible decline in the quality and accuracy of the media and a corresponding decline in public trust.

Conclusion

It’s evident that living in a free society, where diverse opinions and free expression are cherished, can be challenging, especially in a culture that often feels nihilistic and accepts violence. Social media makes it easy for violent and thoughtless messages to spread widely. Because of this, it’s important for all of us in America to work together to calm the heated political debates.

Some of these blogs relate to the Constitution. While I haven’t yet delved deeply into the First Amendment, I can share my current perspective: it was created to enable people to share information and opinions, not to promote violence or deliberately disseminate false information. I would think this would include some people’s tendency to create false images using artificial intelligence. In addition, there may need to be some ability for public figures to sue when false or inflammatory information is broadcast over social media.

America was the first Enlightenment nation. The founders shared a worldview shaped by Isaac Newton and refined in the political arena by figures such as Locke and Rousseau. It was an optimistic age, and figures like Jefferson applauded the French Revolution even after the violence and death became wholly unjustified. They never gave up their support of revolutionary ideologies. Others, like Edmund Burke, were less inclined to justify what happened in France. Burke, for example, saw the violence of the French Revolution as stemming from a breakdown in cooperation among various elements of French society, combined with a failure to draw on aspects of the French intellectual and moral tradition that might have averted disaster.[5]

Whether America can avoid the potential political and cultural chaos ahead depends on all of us working together—academia, the media, politicians, everyday citizens, religious groups, and more—to build a more peaceful and cohesive society. It will require sacrifices from everyone and fundamental shifts in our political approach, which may have worked in the past but clearly aren’t doing the job today. In particular, voters play a crucial role in this change. Politicians from both parties who use violent language should face consequences at the polls. If they recognize that their strategies are no longer effective and may even be harmful, that recognition will motivate a quick and positive transformation in our political scene.

What is needed more than anything else is a truly postmodern, constructive political philosophy that values dialogue, conversation, compromise, and the search for social harmony over the acquisition of power and a “winner-take-all” mentality. I’ve written a preliminary exploration of this on my own. The title is Illumined by Wisdom and Love: Essays on a Sophio-Agapic Constructive Postmodern Political Philosophy. I’m not a professional philosopher, nor was the book intended to be much more than my own study notes as I developed my way of looking at the problems of our society. However, I do think it was helpful.[6]

Copyright 2026, G, Christopher Scruggs, All Rights Reserved 

[1] This and the following paragraph are updates to a prior blog, G. Christopher Scruggs, “Our Unhealthy Political Culture,” found at www.gchristopherscruggs.com (July 18, 2024).

[2] The quotations from this work and from other works of Burke upon which this blog is based are found in Edmund Burke: Selected Writings and Speeches Peter J. Stanis, ed. (Washington, DC: Regency Publications, 1963), at 540.

[3] It is hard to fully trace the linage of this quote, which is also attributed to Lenin and Stalin.

[4] I believe that modern Western society, lacking a transcendent faith in the reality of moral values, has entered a period of moral nihilism that can affect even those who deny accepting it. The power orientation of our culture is part of its plausibility structure. Lesslie Newbigin, Truth to Tell: The Gospel as Public Truth (Grand Rapids, MI: William B. Eerdmans, 1991)

[5] G. Christopher Scruggs, “Burke 3: Response to the French Revolution” found at found at www.gchristopherscruggs.com (May 13, 2021).

[6] G. Christopher Scruggs, Illumined by Wisdom and Love: Essays on a Sophio-Agapic Constructive Postmodern Political Philosophy (Hunt, TX: Quansus Publishing & College Station, TX: Virtual Bookworm, 2024).

The 1976 Supreme Court decision in Griswold v. Connecticut significantly changed the both prevailing notions of the right to privacy and the Constitutional status of reproductive rights in the U.S.[1] The story of Griswold is a long one and exemplifies how certain cases are framed and structured to reach the Court and secure the result the petitioner’s desire. It also illustrates the temptation leftist court members have to deal with local matters at a constitutional level through what is called “Substantive Due Process.”[2] Griswold is one of those cases with which one can accept and agree with the result, yet disagree with its reasoning and wish the court had done otherwise. This is my view.

History of the Case.

Here’s a brief overview: Since 1879, Connecticut had a rarely enforced law making the use of contraceptives illegal. The law prohibited anyone from helping, advising, hiring, or commanding another person to break it, with penalties as if they were the main offender. Before Griswold, there were attempts to challenge this law, but they didn’t get very far. All in all, sixteen attempts, first initiated in 1917, to revise or repeal the law were made by the Connecticut Legislature, but all efforts were blocked.[3] In Tileston v. Ullman (1943), the Supreme Court dismissed a doctor’s challenge because he didn’t show a direct threat to his personal rights.[4] Similarly, in Poe v. Ullman (1961), a woman’s challenge was dismissed for lack of standing. [5]

In 1961, the law was challenged again. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, the League’s medical director, opened a health clinic in New Haven. They were arrested and convicted for providing information and advice to married couples seeking contraception, and each was fined the nominal sum of $100. Griswold and Buxton appealed, but the Appellate Division of the Circuit Court and the Connecticut Supreme Court upheld their convictions. The defendants then appealed to the U.S. Supreme Court, arguing that the Connecticut law violated their due process rights under the 14th Amendment.

Griswold and Buxton challenged Connecticut’s law banning the use of contraceptives, arguing that it violated the right to marital privacy. The Court’s 7-2 decision not only overturned their convictions but also expanded the constitutional right to privacy in ways that have proven controversial. Beyond its direct legal effects, Griswold set an important constitutional precedent that influenced later cases, including Roe v. Wade, which extended privacy rights to include the right to abortion.

Roe v. Wade upset many Americans and sparked a process that, for some, [6]undermined trust in the Supreme Court and the rule of law. It seemed the decision was driven not so much by law or constitutional principles as by frustration among liberals who felt they couldn’t persuade legislatures to act in line with their views. Eventually, Roe was overturned, but not before it caused significant damage to the court’s credibility and the rule of law.

Justice Douglas

Justice William O. Douglas wrote the much-criticized majority opinion. Before critiquing the opinion, I want to share a personal anecdote about Justice Douglas. While I was in law school, Justice Douglas came to speak at the University of Texas. He was a most engaging speaker. He was also careful to portray himself as a rather traditional interpreter of the Constitution. During the question-and-answer session, he was very open and charming. I would not want my disagreement with this particular decision and its logic to in any way slander the character of Justice Douglas.

Substantive Due Process, and Penumbra’s

As these blogs have previously mentioned, after the Civil War, the Supreme Court often defended private property rights against government regulation, using substantive due process as its reasoning. The notion was that the Fifth and 14^th Amendments’ protections prohibited government regulation that would inhibit the use of private property. Eventually, social pressure forced the Court to recant. From the beginning, substantive due process had been an innovation. Due process, or what we call “Procedural Due Process,” was originally conceived as a limitation on government actions that deprive citizens of fair judicial proceedings. Basically, Substantive Due Process is the invocation of some kind of pre-existing substantive (as opposed to procedural) natural right that government cannot restrict. Beginning in the 20^thCentury Substantive Due Process fell into disfavor amid the widely held view that prior courts had used the doctrine to invalidate economic regulatory laws with which the court disagreed.

At the beginning of Griswold, Justice Douglas carefully makes a distinction that he believes saves the opinion. Essentially, without altering the ongoing status of substantive due process in economic matters, he states that the Court does have the authority to handle issues involving the right to privacy, which is a non-economic right guaranteed by the Constitution, at least to some degree. Douglas then extends this to the relationships between husbands and wives as relates to birth control.

From an originalist perspective, of course, this viewpoint is completely unfounded. There was no one at the time of the signing of the Constitution or the adoption of the First Amendment who thought these rights included reproductive rights, abortion, birth control, sexual orientation, or other areas that the Court has been led to address since Griswold.

In order to create this right to contraception, Douglas invokes the notion that there are “penumbras” within the Constitution. That is to say that certain rights given under the Constitution have an undefined penumbra, what we might call a “cloud of applicability” that surrounds them, allowing the courts to extend or create certain rights previously unknown to previous generations and perhaps opposed by many in the current generation. Douglas writes:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. [7]

In support of his position, Douglas cites several cases that are only vaguely applicable. In each of the cases he cites, the Court was dealing with an established right under the Constitution as it applies to specific circumstances, not creating a new right. For example, Douglas cites Pierce v. Society of Sisters, in which the right of Catholic parents to put their children in private schools was established by the First Amendment protection of freedom of religion due to the 14^thAmendment.[8] The difference between this situation and Griswold is obvious. The First Amendment applies to the states by virtue of the 14^th Amendment, and it guarantees freedom of speech and religion, not reproductive rights. Each of the cases is cited by Douglas, and supporting his views, can be similarly criticized.

Perhaps the most egregious of Douglas’s references has to do with the case of NAACP v. Alabama. In that case, the state of Alabama attempted to force the National Association for the Advancement of Colored People (NAACP) to provide State authorities with a list of all its members’ names and home addresses. A leading force in the burgeoning civil rights movement, the NAACP was highly controversial at the time, especially in southern states. If its individual members were identified, they would be at risk of harassment and intimidation – or worse – from opponents of civil rights. Such retaliation may even have been the outcome that state officials had in mind when they made the demand. Unspoken by Douglas was the fact that the 14^th Amendment was specifically enacted to protect a minority from interference with its civil rights. No new right was being given by this case; instead, a constitutionally guaranteed right was being enforced.[9]

Let’s take a closer look at “Penumbras.” The innovation of Penumbras has perhaps been the most criticized aspect of Douglas’ logic in the case. The term “penumbra” had several meanings: it described a partial illumination during an eclipse, a surrounding area where something exists to a lesser degree, or, unfortunately, something that covers, surrounds, or obscures. Douglas also used the word “emanation,” which traditionally meant the originating of the world through hierarchical radiations from the Godhead, to refer to “something that emanates or is produced by emanation,” or even an isotope of radon from radioactive decay. It was not originally a legal concept, though there is some precedent for its use where the court is extending existing language by implication.[10] The notion was not considered to allow radical extensions of existing rights or change the constitutional balance between the federal and state governments. In Griswoldit simply indicates what a majority of Supreme Court Justices believe should be included in the Constitution.

The Ninth Amendment

The Ninth Amendment to the Constitution provides that

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” [11]

During the first 175 years of its history, this Amendment was cited in a total of nine court cases. Some Constitutional scholars began to call it the “Forgotten Amendment.” This is not the place to analyze the Ninth Amendment. It is sufficient to say that “reserving rights to the people” is not the same as “giving the United States Supreme Court the right to determine or create those rights.” As Justice Black eloquently states in his dissent, the Ninth Amendment was passed,

“…not to broaden the powers of this Court or any ‘other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication.”[12]

Justice Black is careful in his language, but clearly believes the majority and concurring opinions misused the language of the Constitution, the intent of which was not to broaden the Court’s powers but to assure the people that the Constitution, in all its provisions, was intended to limit the Federal Government to the powers expressly granted or by necessary implication. Where there is a need to protect these rights, it is the duty of the people, through the process of constitutional amendment, to protect them. Thus, Justice Black observes:

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with ‘the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted td the people or their selected agents for ratification.[13]

Over time, Griswold’s influence seems to have shifted the Court’s role, turning it into a kind of “Guardian Council” that believes it has the superior wisdom to decide which laws should be enacted and what limits should be placed on the state’s powers. This wasn’t what the Founders intended. Since Griswold, the case has led the Court to explore issues that should be decided by the people themselves, even those that the United States Supreme Court should not interfere with.

Tenth Amendment

The decision of the Court is made even less palatable by a fair interpretation of the wording of the 10^thAmendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[14]

At the time the Constitution was written, and at the time of the Griswold decision, it was clear that the state’s police powers were the proper place for legislation affecting the health and morals of the people. At the time the Constitution was written, none of the founding fathers would have agreed that the right to control birth control, abortion, homosexual marriage, or a host of other matters was protected by the Constitution. These were matters reserved to the states. The prohibition contained in the 10^th Amendment applies to the United States government. In other words, it prevents the United States government from entering into those matters that have traditionally been reserved to the states unless specifically given to the federal government. The regulation of sexual behavior is not one of those matters.

The impropriety of Griswold is evident in the Connecticut Supreme Court’s refusal to overturn the law, despite having been given the opportunity. The Connecticut legislature also recognized the problem and could have repealed the law. They did not. The voters of Connecticut could have demanded that their constitutional representatives repeal this legislation. They did not (although, I believe that, in time, they would have done so). Under the circumstances, it was not the prerogative of the United States Supreme Court to step in and do for the citizens of Connecticut what they should have done for themselves.

Conclusion

It’s fair to say that Griswold marked a significant shift rather than a minor tweak in how we interpret the Constitution. Essentially, this case was motivated by a situation that many Justices believed aligned with current moral standards and what they personally saw as just. Perhaps they were right. However, it’s important to remember that Supreme Court decisions have real impacts. One notable outcome of this case has been a major expansion of the Court’s power to define civil rights on its own terms, including invalidating statutes that earlier generations would not have thought the Court had the power to hold unconstitutional. This shift, begun with Griswold, has contributed to a steady decline in the Court’s reputation among many people.

All in all, just as in the early 20^th Century expansive Court decisions in line with current sentiment lead the Court into the quagmire of using the 14^th Amendment to prevent economic regulation, in the late 20^th Century another Court was led into the quagmire of using the Amendment to effect social changes that neither Congress nor state legislatures would adopt. In the end, they were led to use their powers in ways that did not do credit to the Court and ended up undermining both the rule of law and social stability and harmony.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] Griswold v. Connecticut 381 U.S. 479 (1965). I will refer to this case hereafter as Griswold.

[2] Substantive due process is a legal principle holding that the Fifth and Fourteenth Amendments’ due process clauses can protect fundamental, unenumerated rights from arbitrary government interference. In its early form, it was used to protect property owners from government regulation of their businesses. More recently, it has been used to limit government regulation of private behavior.

[3] State v. Griswold, 151 Conn. 544, 200 A.2d 479 (1964).

[4] Tileston v. Ullman,  318 U.S. 44 (1943).

[5] Poe v. Ullman, 367 U.S. 497 (1961)

[6] Roe v. Wade 410 US 113 (1973).

[7] Griswold, 484.

[8] Pierce v. Society of Sisters, 268 U. S. 510 (1925).

[9] NAACP v. Alabama, 357 U.S. 449, 462 (1958)

[10] There is some historical validity for the use of the term in judicial decisions, in particular by Justice Holmes, which Douglas has unquestionably read. See, Henry Greely, “A Footnote to Penumbra in Griswold Connecticut.” University f Minnesota Law School Repository  https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1409&context=concomm (downloaded April 20, 2026).

[11] US Constitution, Amendment Nine.

[12] Griswold, at 520.

[13] Id, at 522.

[14] US Constitution, Amendment 10.

This week, I’m going to be looking at a series of books by John Strickland, who an American Orthodox priest and scholar. He has published a look at Western civilization from the perspective of the Orthodox faith. It is in four volumes, the first of which is The Age of Paradise, which takes us from the Acts of the Apostles to around the year 1054, when the East and West divided.[1] The second book, entitled The Age of Division, includes the final separation of the Eastern Orthodox from the Roman Catholic tradition and the Protestant Reformation.[2] The third book, the Age of Utopia,covers the modern world from roughly the Enlightenment until the mid-19^th century.[3]  The final book, The Age of Nihilism, covers the period from Wagner and Nietzsche until today. It is an extremely ambitious undertaking, as you can see.[4]

I think Strickland’s project is important for the future and for understanding the past. The modern world is over, and the way forward is to look to the past for clues to recovering a holistic view of Truth, Goodness, and Beauty. For Christians, the Orthodox tradition offers us a window into the past that can point us to the future. For all Christians, the consequences of the shattering of the universal church that began with the Great Schism are significant. This is particularly challenging for Protestants because it requires reevaluating some of the positions developed during the Reformation in light of the Great Tradition embodied in what I might call “Universal Christianity.”[5]

For a number of years, I’ve been interested in Orthodoxy, which is important and interesting because it did not participate in the Christianization of the West, nor did it participate in the divisions in Western Christianity that produced modern denominations. Furthermore, for most of its history, it’s been a persecuted sect under both the Muslims and Soviet communism. Therefore, since the end of the Byzantine Empire, it has never been without its problems. Theologically, it is a less legalistic and more mystical form of Christianity. Once again, Latin Roman legalism never impacted the East in the same way it impacted the West.

Because it did not participate in the Reformation, it also avoided both what might be called the naked Biblicism of the Protestant and Reformed tradition and the dogmatic legalism of the Roman Catholic Church theology. I well remember being in Moscow during the years just after the fall of the iron curtain and being told by a Russian Baptist that they did not participate in American fundamentalist arguments and didn’t want them brought to Russia.

The Age of Paradise

Protestants and postmodern readers may have a slight difficulty grasping the impact of the title, The Age of Paradise. Protestants may think that the pre-Reformation period is being portrayed as paradisical, and Roman Catholics may think that, in some sense, the period before the Great Schism was an earthly paradise. This is not what Strickland means by paradise. The age of paradise is intended to indicate a time when the church was united in one voice, pointing to what God had done in Jesus Christ and to the establishment of the kingdom of God, as reflected in the church. Strickland is very well aware of the misbehavior of both the early church and the Byzantine emperors. Nevertheless, one might say that this was a pre-dogmatic time, focused on the life, death, and resurrection of Christ, the church as the bearer of that revelation, and the church’s cooperation in improving the human condition within the confines of the undivided Roman empire.

The form of government the church developed during this period was called “Conciliar,” taking its cue from the Council of Jerusalem (Acts 15), where the church addressed difficult questions by convening councils. The most famous of these councils is the Council of Nicaea in the year 325, from which we get the Nicene Creed, which would be finalized in succeeding councils until a full-blown doctrine of the Trinity was established. During this period, the Bishop of Rome, whom we call the Pope, was merely the first among equals. It is a long story, but eventually the bishops of Rome began to claim that they had greater powers in the universal church than the conciliar form of government allowed.

In addition, in the West, under the influence of Augustine and the political demands of Charlemagne’s Empire, the creed was eventually supplemented with what is called the “filioque.” This adds “and the Son” to the creed with respect to the procession of the Holy Spirit from the Father. This may seem like a small, technical matter, but it was not a technical matter at that time.

There are two reasons why the East could not accept this. First, it was not done by a universal council. According to the concealer theory, no change can be made to the creed without the agreement of an ecumenical council of bishops. The pope had no right to insert this into the creed without calling a council. Second, it implies a kind of bi-theism, suggesting that the Father and the Son are independent entities and that the Spirit is derivative. In other words, it is not a proper way of describing the actual relationships. In the east, they felt that the Father was the source of both the Son and the Holy Spirit.

These two issues, together with the gradual cultural and legal separation of the eastern and western empires, resulted in the Great Schism of 1054. Personally, I found this first volume the most intriguing of the books, except for the last, because it is a part of history that we westerners rarely study.

The Ages of Division and Utopia

The Age of Division. The end of The Age of Paradise highlights how Italian politics and the waning influence of the Roman church contributed to widespread corruption. The Age of Division continues Strickland’s account of the rise and fall of key figures and events in Western history from around 1054 until the Protestant Reformation. Beginning with the Great Schism, it examines the papacy’s efforts to introduce meaningful reforms across Western Christendom. Aside from aiming to strengthen the spiritual vitality of church life, the Papal Reformation also inspired other movements, including the Crusades and, more indirectly, a penitential piety that gradually lessened the concept of paradise within Western culture. In other words, the Western Middle Ages embraced a cross-centered rather than resurrection-centered piety.

The book also recounts the story of Eastern Christendom during this period, when the Fourth Crusade and the Turkish invasion finally brought Constantinople to its knees. Yet in Russia, the Orthodox Church continued to foster the culture of the old Christendom, despite increasing isolation from the West and the destruction caused by Ivan the Terrible. The Age of Division ends with the sixteenth-century Protestant Reformation, which both continued the transformation initiated by the papacy in the eleventh century and, in significant ways, brought it to a close.

The Age of Utopia. Protestant scholars, who tend to be critical of the modern world, failed to recognize that the roots of modernity and the issues of the postmodern era trace back to the Reformation. During the Reformation, people in the West first challenged the authority of human tradition by asserting their personal judgment. Initially, this was limited to reforms within the Roman Catholic Church, which most people saw as unfortunate. Eventually, it extended to faith itself and to moral principles. Ultimately, the religious wars of the 16^th century bred deep dissatisfaction with religion among intellectuals. It was the French Revolution that institutionalized this discontent, a concern that continues to influence the modern world.

When Thomas More wrote his great work Utopia, he was fully aware that he was describing nowhere. He also wanted to make clear that the Greek word utopia did not mean paradise. It meant nowhere. Unfortunately, as the modern world developed, especially after the French Revolution and Marx’s work, secular people began to transfer the notion of a paradise existing not on this earth but in communion with God to this world. The result has been a series of misadventures on both sides and much human misery. Both Marxist Communism in all its forms and Nazism are the results of this misguided attempt to create an earthly paradise.

Most recently, we see the romantic ideal of an earthly paradise, reflected in both the left and the right, and the notion that there can be an end of history within history in which all human problems have been solved. I’ve argued elsewhere that this is a grave mistake. Human beings are not capable of producing a paradise on earth. There will always be injustice and room for improvement. The best we can do is make the world a better place for ourselves and our families.

The Age of Nihilism

Strickland completes his survey in The Age of Nihilism. What makes the modern and postmodern world potentially demonic can be traced to the work of Wagner and Nietzsche, both of whom rejected Christianity, sometimes violently, and both of whom substituted a kind of pagan will worship that becomes fully developed in Nietzsche’s “Will to Power.” The first part of the Age of Reason involves the shift from the naive optimism of the Enlightenment to the extreme pessimism of postmodern theory. The first major postmodern theorist was Nietzsche. With Nietzsche came a hatred of Christianity and religion, a complete rejection of the Western Christian tradition, and the placement of human fulfillment in the Will, which finally reached a pathological level. Whatever the defenders of Wagner, Nietzsche, and their postmodern followers may say, there is a direct line from them to the Holocaust and to the deprivations of 20^th-century communism in the East and West.

Both Wagner and Nietzsche were classic megalomaniacs (narcissists), unable to sympathize with others or to keep their thoughts and actions within moral boundaries. Ultimately, their ideological commitments led to the modern and postmodern glorification of power. This obsession with power is not unique to Marx. Western capitalism, in all its forms—social and otherwise—has been influenced by the idea that power can create a paradise. Strickland spends a significant amount of time criticizing Western liberalism (in its original sense) to show that the three major experiments of the modern world—Soviet communism, Nazi oligarchy, and Western liberal social democracy—have all failed to offer a meaningful purpose for human life or a guiding principle that limits the use of power to achieve political goals. The result has been progressive cultural and political decay in the East and West.

Conclusion

Strickland’s work is truly monumental. The attempt to summarize Western civilization from an Eastern perspective over more than 2,000 years is a monumental task. If one quibbles with an occasional conclusion, most of what it said is both historically accurate and a reasonable interpretation of the history involved. If occasionally I became overwhelmed by the amount of detail being delivered, generally speaking, the books kept my interest from beginning until end. Most importantly, it was fascinating to look at certain historical events that we westerners are familiar with from the perspective of a different cultural heritage.

People who are mostly secular might not find the entire series particularly appealing or the main message it aims to convey. However, they will definitely find the historical details within the book quite enlightening. For instance, I was especially captivated by the era spanning from the fall of the Roman Empire, during Augustine’s lifetime, to the reign of Charlemagne and his successors. This is a fascinating period of history that rushed by in school!

For Christians and others seriously concerned about the state of our culture, the four volumes, especially The Age of Nihilism, are long, serious commentaries on the difficult situation in which Western civilization finds itself. Strickland holds that Westerners need to recover their Eastern heritage to overcome our current cultural decline. I believe he makes a very good case for this view.

I will give Strickland the final word:

Without a transcendent anchor, the saeculum inevitably degenerates into self-destruction. The holy father Augustine, who more than any other established the concept of secularity, would have frozen in horror, had he foreseen the fruits of cosmological desecration. The secular disorientation of the West degenerated into an indignation with no outlet but violence. This was especially true after the rise of Communism, Nazism, and liberalism. Within the space of a single half century, for instance, collectivization (10 million peasants killed), General Plan East (45 million Eastern Europeans killed) and Roe v. Wade (65 million unborn children killed) made this clear enough. Only repentance can save the world. [6]

My reason for these blogs is to hopefully, in some small way, assist in forestalling the continuation of this tragedy.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] John Strickland, The Age of Paradise: The Rise and Fall of What the West Once Was, Vol. 1 (Chesterton, IN: Ancient Faith Press, 2019). The author has a website (https://johnstrickland.org/), which I recommend and used in preparing this blog.

[2] John Strickland, The Age of Division: Christendom from the Great Schism to the Protestant Reformation Vol.2 (Chesterton, IN. Ancient Faith Press, 2020.

[3] John Strickland, The Age of Utopia: Christendom from the Renaissance to the Russian Revolution Vol. 3 (Chesterton, IN. Ancient Faith Press, 2021.

[4] John Strickland, The Age of Nihilism: Christendom from the Great War to the Culture Wars Vol. 4 (Chesterton, IN. Ancient Faith Press, 2019.

[5] This term “Universal Christianity” avoids the use of the word Catholic. It is nearly equivalent to what C. S. Lewis called “Mere Christianity.”

[6] Age of Nihilism, 380.

The Eleventh Amendment is the first Amendment to the Constitution after the Bill of Rights. Congress passed the Eleventh Amendment, and the states ratified it on February 7, 1795, though it did not take effect until 1798. The amendment states that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It was enacted to overturn the Supreme Court’s 1793 decision in Chisholm v. Georgia. I think it is worth studying because, although it was later overturned by amendment and clearly stepped beyond the intentions of those ratifying the Constitution, those involved were attempting to delineate a proper relationship between the Federal and State governments and to ensure the payment of war debts. It illustrates three important realities: (i) well-meaning people can misunderstand the public’s willingness to accept innovations, (ii) a tradition (in this case American and English law) does not speak with one voice, (iii) the amendment process is part of judicial correction when errors are made.

The Issue

One of the most significant issues arising from the Constitution’s adoption concerned the proper balance of power between the national government and the states. Federalists desired a strong central government that would unify the states into a single nation. Anti-Federalists feared and opposed a federal government that could threaten their status as independent, sovereign political entities. We continue to struggle to find a workable and effective solution to the delicate problem of implementing our system of divided sovereignty between the states and the federal government.

This concern as regards judicial power was reflected in Article III of the Constitution. Article III covers lawsuits between states, between a state and citizens of another state, and between a state and foreign states, citizens, or subjects. During ratification debates, three states suggested placing explicit limits on suits against states, but these proposals were unsuccessful. As was often the case when agreement could not be reached, the document was vague regarding the full scope of the federal judiciary’s powers.

Those who opposed allowing states to be sued in federal court had several concerns. Most importantly, the states had accumulated substantial debt during the Revolutionary War. Although many of these debts had been assumed by the federal government under Alexander Hamilton’s economic plan of 1790, state officials still had to cope with the possibility of being overwhelmed with financial claims by citizens of other states. They also feared being taken into federal court by frequent challenges to state land grants. A less concrete but equally important worry was based on the idea of state sovereignty. If states could be sued in federal court, many believed they would lose their sovereignty and independence as political units and become entirely subject to the federal government. These concerns all came to a head when the Supreme Court decided Chisholm v. Georgia. 

Legal Debates Before Chisholm

Generally speaking, what we call “sovereign immunity” prevents lawsuits against a government without its permission. As early as Blackstone’s Commentaries on the Laws of England, it was the law in England that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.”

The delegates to the Constitutional Convention did not debate or address the issue of state sovereign immunity. However, Article III described the judicial power in language suggesting that states would be subject to suits by individuals in federal courts under certain conditions. This issue became a point of contention during the ratification debates. Anti-Federalist George Mason of Virginia asked, “Is the sovereignty of the State to be arraigned like a culprit, or private offender? Will the States undergo this mortification?” Patrick Henry argued that if states could be sued for debts, holders of the “immense quantity of depreciated Continental paper money in circulation at the conclusion of the war” would be able to demand repayment of the face value of these notes “shilling for shilling.”

Federalists, such as Alexander Hamilton, John Marshall, and James Madison, tried to ease concerns by claiming that states would not be forced to act as defendants in federal courts, regardless of what Article III states. Hamilton wrote in Federalist No. 81, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” During Virginia’s ratification debates, Madison argued that states would need to sue in federal court to bring a claim against a citizen of another state but that they would have immunity unless “a state shall condescend to be a party.” Marshall agreed, saying, “It is not rational to suppose that the sovereign power shall be dragged before a Court. The intent is to enable States to recover claims of individuals resident in other States.” Patrick Henry ridiculed these claims, once again pointing to Article III’s language about suits involving states “without discriminating between plaintiff and defendant.”

This brings us to Chishom v. Georgia and an early example of judicial overreach that failed.

The Facts and Runup to Chisholm

Chisholm v. Georgia originated from actions taken during the early years of the Revolutionary War. [1] In 1777, American troops stationed in Georgia needed supplies. Commissioners, authorized to act on behalf of the Georgia government, purchased the necessary items from Robert Farquhar, a South Carolina merchant. Although the commissioners had funds from the state treasury to pay Farquhar, they did not do so. Farquhar died in 1784 with the debt remaining unpaid. His executor, Alexander Chisholm, petitioned the Georgia legislature for payment, but the petition was denied in 1789.

Following this denial, Chisholm filed a lawsuit against the state in the U.S. Circuit Court for the District of Georgia. Georgia argued that the state had sovereign immunity and could not be compelled to appear as a defendant. The case was heard by Supreme Court Justice James Iredell, riding circuit, and U.S. District Judge Nathaniel Pendleton, both of whom agreed that the court lacked jurisdiction. In 1792, Chisholm brought a suit in the Supreme Court of the United States, where Georgia again claimed sovereign immunity.

The Supreme Court’s Ruling

After the case was heard, the Supreme Court held that Georgia did not have sovereign immunity and could be sued by individual plaintiffs in federal court. Each justice wrote a separate opinion, with Chief Justice John Jay and Justices John Blair, Jr., James Wilson, and William Cushing in the majority, and Justice James Iredell dissenting. Chief Justice Jay noted that Georgia could not justify its objection simply because it was named as a defendant in federal court, since the Constitution allows suits between states, in which states will inevitably be defendants. The objection, therefore, was based on the fact that the plaintiffs were individual citizens of another state. “That rule is said to be a bad one,” wrote Jay, “which does not work both ways.” In other words, if Georgia had the right to sue citizens of different states in federal court, it would be unjust for those citizens to be unable to sue Georgia.

Jay then examined the language of the Constitution, which extended the judicial power “to controversies between a state and citizens of another state.” He argued that these words were “express, positive, free from ambiguity, and without room” for implied exceptions. To accept such an exception, Jay wrote, would “contradict and do violence to the principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as the many against the few.”

James Wilson’s Significant Contribution

While other justices based their decisions on the text of the Constitution, James Wilson believed the case depended on the question, “Do the people of the United States form a Nation?” Thus, Wilson begins his analysis with these words:

The fundamental nature of the issue presented by the case was aptly characterized by Justice Wilson: This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this— “do the people of the United States form a Nation?”[2]

The portion of his decision that is most important is his argument that sovereignty belonged to the people, who, by ratifying the Constitution, had committed themselves to the nation’s laws. States, like the individuals within them, must not be exempt from enforcing those laws.[3]

Justice Wilson began his analysis of Georgia’s claim of sovereign immunity by contesting the appropriateness of the very term “sovereignty” with regard to the new Constitution:

To the Constitution of the United States the term Sovereign, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves “Sovereign” people of the United States, But serenely conscious of the fact, they avoided the ostentatious declaration.[4]

In Chisholm v. Georgia, Wilson observes that “the term sovereign has for its correlative, ‘subject,’” and in this context, it cannot be applied because it is not found in the U.S. Constitution. The Constitution mentions “citizens,” but never “subjects.” In other words, Americans are citizens of the United States of America, but not subjects of its government. This is an important difference between the situation in the United States and Europe. Americans were never subjects at any time during their post-revolutionary history.

Justice Wilson rejected the idea of “subject” regarding the case because he understood the Government of Georgia to be republican, meaning it is based on the principle that sovereignty resides in the body of the people. Wilson also argued that Georgia’s citizens, when ratifying the Constitution, did not surrender their supreme or sovereign power to the state; instead, they kept it for themselves. Therefore, in terms of the Union’s purposes, Georgia should not be considered a “sovereign state” by the European definition.

In summary, Wilson states that if the word “sovereignty” is used at all, it refers to the people, not to any government formed by the people. I wonder if it might be a better course of action to consider the United States as consisting of three distinct sovereignties:

1. The Ultimate Sovereign (the people of the United States);
2. The Local Sovereign (the several states, sovereign in every area not specified in the Constitution); and
3. The National Sovereign (the government created by ratification of the Constitution, sovereign only within its Constitutionally prescribed areas of responsibility).

The analysis of Justice Wilson in Chisholm v. Georgia best leads one to conclude that the sovereignties of the states and the national government are, under our system of government, derivative sovereignties. The states are Local Sovereigns with the powers that were designated for them in their constitutions, and the federal government is the National Sovereign with the powers that were given to it by the Constitution. The people, however, retain ultimate sovereignty over both.

Chief Justice Jay’s opinion supports the view that the United States is characterized by multiple sovereignties, as he uses the term “joint and equal sovereigns.” In his opinion. [5]  Jay affirmed the latter went on to affirm the “great and glorious principle, that the people are the sovereign of  this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined.”[6]

This kind of language supports the view that, in the United States there is one ultimate sovereign (the people) and two subordinate sovereigns, each sovereign only within the limits granted by the constitutions that formed them.

Aftermath and Legacy

In his dissent, Justice Iredell asserted that every state was “completely sovereign” other than where its powers had been delegated to the federal government. On the nature of sovereignty, Justice Iredell had the following view:

Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered. [7]

According to Iredell, no suit by private citizens against a state could proceed without the state’s consent unless there was English common-law precedent to support such an action. Finding an English case allowing a claim against the Crown to proceed inapplicable to the present case, Iredell believed that the Supreme Court lacked jurisdiction over the plaintiffs’ claim against Georgia. After a Constitutional Amendment, Iredell’s view prevailed.

Interestingly, although the justices did not agree on the merits of the case, they did agree that the Ultimate Sovereign in the United States is the people themselves, and each of the national and state governments are local and national sovereigns, with only such powers as the Ultimate Sovereignty of the people has given them. This is consistent with the language of the Constitution that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[8]

Conclusion

I wouldn’t spend an entire blog on just one Supreme Court case if I didn’t truly believe it was so important. It’s not only crucial for understanding the history of the Constitution and the 11^th Amendment, but also for shaping how we view our government today. Sadly, many Americans have come to see the national government as the ultimate authority. After the Civil War, the balance of power between state and federal governments shifted, with the federal government becoming the more powerful of the two. But, it’s important to remember that nothing in the Civil War amendments takes away the ultimate sovereignty of the people of the United States over their government.

As our national, state, and local governments develop increasingly detailed rules that influence almost every aspect of our daily lives, it’s important to remember that this can sometimes feel like overreach that infringes on the rights of the people. While the federal government has expanded its regulatory scope and built a large bureaucracy, it’s also vital to remember that the Constitution limits the areas the federal government can regulate. When definitions of federal powers broaden too much, they can unintentionally encroach upon the sovereignty that rightfully belongs to the people.

In an increasingly urban and socially and economically interdependent society, it is easy to forget the people’s ultimate sovereignty as governments struggle to solve social problems. Nevertheless, both state and federal governments need to remember that they serve the people, not rule over them.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] 2 U.S. (2 Dall.) 419 (1793).

[2] Chisholm v Georgia, 2 U.S. (2 Dall.) at 453 (Wilson, J.)

[3] Randy Barnett,” The People or the State?: Chisholm v. Georgia and Popular Sovereignty” 93 Va. L. Rev. 1729-1758 (2007).

[4] Chisholm v. Georgia, 454. See also, Barnet above, at 1731.

[5] Id, 477 (Jay, C.J.).

[6] Id, 479

[7] Id, 435,

[8] U.S. Const. amend. X.