Don’t Overlook the Real Conversation Among the Justices in Dobbs

Jul 1, 2022 by David Fowler

Don’t Overlook the Real Conversation Among the Justices in Dobbs
The reversal of Roe v. Wade by the United States Supreme Court last Friday is certainly cause for rejoicing among those who are pro-life. And I do rejoice. But a profound conversation is lurking below the surface in the opinions of the various justices. It will be a critical mistake for Christians not to understand that conversation and not to consider how best to join it. Not joining the conversation and not doing so wisely will perpetuate our existence under what is, in principle (as I will explain) a tyrannical state and federal government.

Why the Conversation Is Important.

William Blackstone, the great English expositor of the common law whose name figured prominently in last week’s abortion and Second Amendment decisions, wrote:
It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them. But, when law is to be considered not only as matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.
In other words, it is nice that people obey the law, but if they want to participate in a conversation about the law—what it is, its purpose, and its direction—they must “examine” its foundations at a level deeper than that to which we are accustomed. Otherwise, we won’t know what we are talking about and will not contribute to the discussion. 
Immediately we recognize the truth of this, for no person would build a house without making sure its foundation is solid and could support that which is being built. But in law, that reasonable principle has been largely lost. I now realize, to my chagrin, it was not part of my law school education.
More broadly, though, it seems to me that an understanding of the “rudiments and grounds” of law that is the “constitution [i.e., foundation] of society” have been largely lost among great numbers of Christians. If we don’t understand the foundations of society, then we will not have a society worth living in for long.

An Example of What I Mean-Consent of the Governed

For example, last week, I spoke with a Christian candidate who proclaims that “all power is inherent in the people” and that all just governments are founded on the consent of the people. 
If those two ideas are not blasphemous, at the very least they deny that all power (authority) is rooted in God (Romans 13:1; Genesis 1:1) and deny God’s providence in human affairs. And if God sovereignly superintends all the affairs of this world and throughout time not all governments were grounded in consent, then God is unjust. 
This candidate’s view of civil government begins with anthropology, the study of man, rather than theology, the study of God. It is contrary to what Christians profess as the “rudiment and ground” of all things: For from Him, and through Him, and to Him are all things. To Him be the glory. Amen (Romans 11:36, emphasis added). Every civil government in the history of the world is God’s doing for His ends and purposes, or that verse is false.
Upon reflection, this candidate now agrees, but his error is not uncommon among Christians. Another Christian candidate for office I recently met had not thought through this either (but now has). 

The Consequence of Government Grounded in Consent

The natural, logical effect of putting the rudiments and grounds for governing society in human consent is that we can consent to anything. There can be no authority or law civil rulers (or society) must acknowledge. The minority will have nothing higher than itself to which it can point as ground for its objection to a civil law. (This is the whole point of the Marital Contract Recording Act; click this link to see what incumbents running for re-election did to promote its passage.) 
That is civil government strictly by man, not law, and man’s fallen bent is toward power, coercion, and to be like and take the place of God. That is the ground of human tyranny, and sadly, as demonstrated above, too many Christians and Christian political candidates go right along.  

Discerning the Conversation in the Justices’ Opinions

As a friend of mine has rightly said, the first thing that must be done when there are groundbreaking events—in this case the Dobbs decision—is to get understanding. That usually takes time. 
On Tuesday, a friend of mine suggested that Justice Breyer, in his Dobbs dissent, may have gotten the better of Justice Alito, who wrote the majority opinion. Having not had time to read the dissent, I did, and I think he is correct in at least one fundamental regard.
I will begin to discuss this in today’s God, Law & Liberty podcast, and possibly in a few other episodes. If we don’t understand the conversation taking place between these two justices, differentiated in important ways by Justice Thomas, abortion will return in a few years, and Breyer’s view may ultimately prevail. I invite you to tune in.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006.

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