G. K. Chesterton Before the U.S. Supreme Court

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No, G. K. Chesterton never appeared before the United States Supreme Court in person. (Just imagine the massive man making an impassioned case before the judges!) Yet he was quoted in 2018 and 2019 in both a dissent from Justice Neil Gorsuch and also a concurring opinion by Justice Clarence Thomas.

Gorsuch, Chesterton, and the Fence

Justice Gorsuch opened and closed his dissent in Artis v. District of Columbia with the example of Chesterton’s fence:

Chesterton reminds us not to clear away a fence just because we cannot see its point. Even if a fence doesn’t seem to have a reason, sometimes all that means is we need to look more carefully for the reason it was built in the first place.

The same might be said about the law before us.

As a Chesterton fan, it’s exciting to see him quoted as an obvious and well-known authority. Gorsuch provides no context, footnote, or even the initials “G. K.” He assumes that, simply by saying “Chesterton,” his readers will know who he is talking about, much like we would quote Shakespeare or any other author whose authority is so evident that nothing more needs saying.

The example that Gorsuch refers to comes from Chesterton’s 1929 book, The Thing.  

“In the matter of reforming things, as distinct from deforming them, there is one plain and simple principle; a principle which will probably be called a paradox. There exists in such a case a certain institution or law; let us say, for the sake of simplicity, a fence or gate erected across a road.

The more modern type of reformer goes gaily up to it and says, ‘I don’t see the use of this; let us clear it away.’

To which the more intelligent type of reformer will do well to answer: ‘If you don’t see the use of it, I certainly won’t let you clear it away. Go away and think. Then, when you can come back and tell me that you do see the use of it, I may allow you to destroy it.’

“This paradox rests on the most elementary common sense. The gate or fence did not grow there. It was not set up by somnambulists who built it in their sleep. It is highly improbable that it was put there by escaped lunatics who were for some reason loose in the street. Some person had some reason for thinking it would be a good thing for somebody. And until we know what the reason was, we really cannot judge whether the reason was reasonable. It is extremely probable that we have overlooked some whole aspect of the question, if something set up by human beings like ourselves seems to be entirely meaningless and mysterious.

“There are reformers who get over this difficulty by assuming that all their fathers were fools; but if that be so, we can only say that folly appears to be a hereditary disease. But the truth is that nobody has any business to destroy a social institution until he has really seen it as an historical institution. If he knows how it arose, and what purposes it was supposed to serve, he may really be able to say that they were bad purposes, that they have since become bad purposes, or that they are purposes which are no longer served. But if he simply stares at the thing as a senseless monstrosity that has somehow sprung up in his path, it is he and not the traditionalist who is suffering from an illusion.”

Gorsuch returned to Chesterton’s parable of the fence at the end of the dissent:

The Court today clears away a fence that once marked a basic boundary between federal and state power. Maybe it wasn’t the most vital fence and maybe we’ve just simply forgotten why this particular fence was built in the first place. But maybe, too, we’ve forgotten because we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place.

Chesterton vs. Cynicism 

In his book A Republic If You Can Keep It Gorsuch quotes from Chesterton again when exhorting his readers to avoid cynicism:

Sometimes it’s hard to see the way forward for all the trials that lie so squarely before us. But when you find yourself in doubt, I encourage you to remember this story from G. K. Chesterton. Chesterton noted that an ordinary man, asked “on the spur of the moment” to explain “why he prefer[red] civilization to savagery,” likely “would look wildly round at object after object, and would only be able to answer vaguely, ‘Why, there is that bookcase . . . and the coals in the coal-scuttle . . . and pianos . . . and policemen.’” But, as Chesterton reminds us, there is sometimes wisdom in a stuttering reply. Sometimes the virtues of civilization are too numerous to count, almost so obvious as to be too obvious to see. If asked to explain them, it’s hard to know where to begin.

The same is true of our constitutionally governed republic. We may not always notice them, but what the Constitution calls our “Blessings of liberty” are everywhere around us.

Chesterton, Justice Thomas, and the Evil of Eugenics

The second Chesterton quote shows up in a blistering concurring opinion from Justice Clarence Thomas Box v. Planned Parenthood of Indiana and Kentucky, Inc. For 20 pages, Justice Thomas lays out the racist and eugenic roots of America’s abortion regime in all their gruesomeness. The comment from Chesterton comes during a portion in which Thomas lays out the many reasons eugenicists did their “purifying” work:

Although race was relevant, eugenicists did not define a person’s “fitness” exclusively by race. A typical list of dysgenic individuals would also include some combination of the “feeble-minded,” “insane,” “criminalistic,” “de- formed,” “crippled,” “epileptic,” “inebriate,” “diseased,” “blind,” “deaf,” and “dependent (including orphans and paupers).” Imbeciles 139; see Applied Eugenics 176–183; cf. G. Chesterton, Eugenics and Other Evils 61 (1922) (“[F]eeble-mindedness is a new phrase under which you might segregate anybody” because “this phrase conveys nothing fixed and outside opinion.”

Chesterton’s books are full of insight and are generally suffused with humility and humor. One of the few exceptions to the typical joyful tone in Chesterton’s corpus is Eugenics and Other Evils, the book Justice Thomas quotes from here. Chesterton expresses horror and anger at the arguments from those who advocated the sterilization of inferior groups of people, arguments in the early 1900s that were embraced by many considered to be “progressive,” including Teddy Roosevelt, Helen Keller, Margaret Sanger, and Oliver Wendell Holmes.

Echoes of this mindset—that some are “unfit” for life or fertility—continue to show up today in both the ideology of the alt-right and the underlying ideology of recent abortion advocacy for populations in poverty. In 2009, while commenting on the court’s upholding of the Hyde Amendment that prohibits the use of federal funding for abortion, Justice Ruth Bader Ginsburg remarked:

Frankly, I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding of abortion.

Justice Thomas’s dissent ties today’s abortion regime with last century’s push for eugenics, a movement that explicitly sought to limit “populations that we don’t want to have too many of.” In doing so, he turned to Chesterton’s argument against requiring sterilization of “the feeble-minded.” Here is the fuller context of Chesterton’s quote:

“The whole point of our contention is that this phrase conveys nothing fixed and outside opinion. There is such a thing as mania, which has always been segregated; there is such a thing as idiotcy, which has always been segregated; but feeble-mindedness is a new phrase under which you might segregate anybody.

“My point is not that I have never met anyone whom I should call feeble-minded, rather than mad or imbecile. My point is that if I want to dispossess a nephew, oust a rival, silence a blackmailer, or get rid of an importunate widow, there is nothing in logic to prevent my calling them feeble-minded too. And the vaguer the charge is the less they will be able to disprove it.”

Justice Thomas relies on Chesterton as part of his broader goal of showing just how expansive and insidious the eugenics mindset could be. He excoriates the “full-throated defense of forced sterilization” that marked the Supreme Court in 1927, including this chilling statement from Justice Oliver Wendell Holmes:

“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.”

Near his conclusion, Thomas writes:

Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would constitutionalize the views of the 20th-century eugenics movement.

Thomas shares the same instinct as Chesterton in regards to eugenics, sterilization, and abortion. We can only hope more Supreme Court justices will share that revulsion in the future.

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