". . . and having done all . . . stand firm." Eph. 6:13


Legal Expert Leonard Leo Discusses Post-Roe America, Natural Order, and Faith

August 11, 2023

The Washington Stand recently had the opportunity to spend some time speaking to Leonard Leo, former vice president of the Federalist Society and now the chairman of the organization’s board, as well as a leading figure in the conservative world. Mr. Leo is largely credited with helping U.S. presidents select strong conservative, textualist, and originalist thinkers for the Supreme Court, including Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Washington Stand: Mr. Leo, thank you, first of all, very much for speaking with us today. I really appreciate your time. A few weeks ago, The New Yorker published an article covering predominantly-pro-abortion protests outside your home in Maine. Could you tell us in your own words a little bit more about these protests and especially why pro-abortion activists see it worthwhile to target you?

Leonard Leo: Well, I haven’t paid a lot of attention to this. There have been occasional protests outside our house. Sometimes it looks like, from what I’ve heard, it’s because of the Dobbs decision. But other times, the issues they’re protesting seem more varied. I would assume that the reason people are demonstrating is because there have been, over the past couple of years, a lot of conservative accomplishments respecting reinstitution of the rule of law — and Dobbs is one of those accomplishments — and there are members of the Left who are not happy with those accomplishments. And they’ve decided to express their discontent with the transformation of the judiciary and the rule of law that we’ve seen over the past couple of years.

TWS: Speaking of the Dobbs decision, can you maybe share your thoughts on what’s next for conservatives and for pro-lifers now that Roe v. Wade has been dismantled?

LEO: There have always been — in my view, at least — three theaters of battle respecting the issue of abortion. One has been the legal: you know, the court basically deciding to wrest the issue from the political process and to control decision-making regarding “rights” to abortion through its own judicial decision-making. And of course, that culminated with Roe v. Wade and then Casey v. Planned Parenthood. So that was always one theater of engagement or conflict. And of course, with the Dobbs decision, the Supreme Court made pretty clear that, the judiciary was not going to be a theater of engagement on the abortion issue. The court very clearly left the issue to the political process and gave the political process a wide berth and latitude to decide the sort of moral and ethical questions surrounding abortion. So that was the first theater. The second has always been legislative: both Congress and, more significantly, the states making decisions about how to restrict, regulate or prohibit abortion. Obviously with Dobbs, the role that this theater of engagement plays is much greater because now the court has said that is the principal theater of battle or conflict or engagement — it’s not the courts, it’s the political process. And of course, it’s mostly going to manifest itself in the states. For example, right now, there are there are nine states that are considering proposed constitutional amendments that would legalize abortion — in a number of those states, more broadly than Roe and Casey contemplated. So that’s the second theater. And the third is what I would call social and cultural, and that’s the one that people have historically in the press and in the political realm paid the least attention to. So even if you have a world where you have a Dobbs decision that says this is a very important, significant, but complicated moral and ethical issue, it’s not really suited for the courts. It’s really for the political branches, elected representatives, to make those decisions. And even if you have a legislative process, either at the federal level or the states, that’s grappling with the abortion question, and no matter what law those states and Congress pass, you know, the question is going to be ultimately, what our social and cultural forces have to say about abortion. How are we going to think about abortion? Are people going to want to embrace abortion “rights” for themselves or for their families? Or are they going to want to walk away from that practice? And really, when you get down to it, in a free society, that’s probably the most important theater of engagement. Because no matter what the court does and no matter what a legislature does, even if these nine states pass laws that permit abortion anywhere, anytime, for any reason, the fundamental question is, do people wish to support abortion? Do they wish to have abortions themselves? Do they wish to encourage loved ones or friends to have abortions? What are we doing for the women in need who are thinking about abortions? What are we doing about the women who are giving birth to children but are in financially or emotionally distressed situations? That’s where the cultural and social theater of engagement comes into play. And ultimately that’s probably going to end up being the most important one in our culture of the three.

TWS: I would agree with you on that particular point. I’ve noticed the same thing in dealing with pornography, for example: some of the most significant advancements in diminishing the hold that pornography has on the culture have been in that kind of social and cultural sphere.

LEO: That’s actually a very good observation. One of the things that has moved the debate about pornography from judicial decision-making and legislation to sort of social and cultural forces has been the idea that if you really believe in the dignity and worth of the human person — and in this particular context, oftentimes the dignity and worth of women — how can you embrace pornography as a cultural and society? And I do think that there are now generations of younger people who are beginning to understand that pornography cheapens the dignity and worth of women. And so what’s happening today is people are voting with their feet. Hopefully they’re choosing not to consume pornography at the levels they used to — although, as you know, it’s still a very serious problem in our culture, particularly among young men. But hopefully, you know, we’re beginning to see private ordering of civil society, cultural and social forces moving away from it and trying to find ways to just reduce the demand for it, which of course is a very different approach than legislation or judicial decision-making. But as with abortion, in the context of pornography, I think those social and cultural forces are ultimately going to be the most important driver.

TWS: So, on that theme, what are your thoughts on the idea of legislating morality? A lot of people, I know, interpret that as forcing a particular viewpoint on others, especially where subjects like abortion are concerned. What are your thoughts on that? Does the federal government have a role to play in that? There’ve been proposals regarding, say, abortion bans at the federal level.

LEO: Well, I think you’re kind of posing two questions. And the first question is really, what role can the state play in prohibiting, regulating, or restricting abortion? And really, you’ve got to go back to a fundamental question about what role does the state play in governing and regulating human conduct. And going all the way back to the beginning of Western civilization and the emergence of law and the state generally, most people have agreed that the state’s role to regulate conduct is at its pinnacle, if you will, when you’re dealing with issues of what we call force and fraud. So when you are engaging in behavior that threatens one’s physical being, right, or when you’re engaging in conduct that could lead to coercion or fraud, the state’s role in regulating or restricting that conduct is at its highest. And when you get down to it, that’s really what regulation or restriction of abortion is all about. It’s basically a form of law aimed at restricting and regulating various forms of force and, to some extent, coercion and fraud. Force in the sense that there’s a human life at issue, so you have to protect human life at all its stages, and coercion and force in the sense that you’re dealing with a moment in one’s life that is extremely emotional and heart-wrenching and difficult. And it’s at that moment when one has to be very careful about various forms of coercion and fraud and force. So that’s oftentimes why some people might say, “Well, the state is trying to impose its own view or its own morality.” It’s not as much that as just that the natural order requires civilized society to prevent forms of force against the human person, including the unborn and the dying, for example. And then also, there are unique situations where coercion and fraud are a real problem. So that’s the basis, right? So then the question is, okay, well, if that’s sort of the basis in the natural order of things, if that’s the basis for why we create regulations or restrictions on abortion or any other conduct for that matter, who does the regulating? And the Dobbs case doesn’t really answer that question. It just says that the abortion issue is left to the elected representatives. It doesn’t specify whether that’s going to be federal or state. But I think if you look at much of the historical analysis in the Dobbs case, and if you look at the history of our country, I think it’s pretty obvious that, you know, the central player in dealing with the abortion issue is going to end up being the states. Certainly if you go back to the founding period and the 19th century, governing leaders viewed the states as having principal authority over issues like abortion. And so I think that’s going to be ground zero. And I think what’s going on with these nine states proposed constitutional amendments is a case study of that quite clearly.

TWS: Changing gears a little bit, you spoke in a recent interview with Maine Wire about the Constitution and the necessity of preventing government overreach, like the recent revelations of the FBI’s targeting of “radical traditionalist Catholics,” the arrest of Mark Houck, the targeting of parents at school board meetings, the list goes on. How do you recommend conservatives and Christians stand up against that overreach? What, in practical terms, in our day-to-day lives, can be done?

LEO: Well, first and foremost, I think that people of faith who are concerned about these revelations — both the FBI targeting of faithful Catholics and the targeting of parents asserting their rights as parents at school board meetings — people who are concerned about those kinds of activities or activities like them need to remember something that former Attorney General Ed Meese once told me, which is “Personnel is policy.” So basically, if you really want to make sure that these things aren’t going to be happening, the first line of defense is making sure that you have elected representatives, as well as presidents or governors, who are not going to tolerate that kind of overreach. That’s your first line of defense. You got to have a president, you have to have senators and members of Congress, you have to have governors, you have to have state legislators who understand that limits on government power and respecting those limits — making sure they’re enforceable — those limits on government power are the best means of protecting the dignity and worth of the human person, which, of course, includes freedom of religion and parental rights. So that’s the first thing. And if Catholics or other people of faith are concerned about what they’re seeing, then then they need to go to the ballot box every couple of years and vote their consciences; they need to encourage other people to do so. That’s the first line. Now of course, we have a Constitution, and in particular a bill of Rights. And there’s nothing wrong with, when there’s a transgression in the clear text and original meaning of the Constitution, to appeal to the courts for redress of that grievance. So in the context of overreach that relates to conscience rights or religious freedom or in the context of overreach that relates to parental rights, there’s nothing wrong with people asserting their First Amendment rights, their due process rights. There may be state constitutional rights that relate to parental rights. And then, of course, you know, the fundamental question is, even apart from rights, is whether what the government is doing is contrary to either its statutory charge, its jurisdiction or the separation of powers under the Constitution. So you can look at structural protections as well. So political process is always going to be your first line of defense, but there’s nothing wrong with seeking redress in the courts where there’s been a serious transgression, either of government authority or of your rights as guaranteed under the Bill of Rights.

TWS: And looking at the current cultural landscape, which, in your estimation, of those rights do you see most threatened today?

LEO: Well, I see a number of different rights that are, I think, gradually becoming devalued by society in ways that do concern me. I think that we have to constantly be vigilant about freedom of religion and belief and conscience. Now, the Supreme Court has, as of late, been very muscular in protecting religious freedom rights under the establishment clause as well as under the free exercise clause. And so I think there’s been sort of a glimmer of progress or hope there. But one has to constantly be vigilant to protect freedom of religion. And there’s a reason for that. I call it the “canary in the coal mine.” Basically, if you have a regime or a state that is willing to crush your rights of religious belief and conscience — which is at the very core of who you are, it’s the deepest relationship you have with the Creator — if a state is willing to impinge on that, there is no right that is safe. That’s the canary in the coal mine. So freedom of religion is really important to keep an eye on. I worry about freedom of speech. I think that if you look at recent polling and survey data, there are a lot of people who don’t place a premium on freedom of speech, they’re willing to censor speech, there’s a burgeoning cancel culture, people don’t understand what speech is and what it isn’t. So it’s not just efforts to impinge upon speech, it’s also a misunderstanding of what political speech is, what kind of value it has, how you protect it. I worry a good bit about freedom of speech as well. I also worry a little bit about property rights. That’s a complicated one in the sense that obviously the state has a role to play in regulating how people use their property rights, but property rights are an important part of a free society. I’ve always been very struck by an essay that James Madison wrote called “An Essay on Property,” and he talked about having a right of property in your conscience and in your belief and what the essay does — it’s a fascinating essay — is it draws the relationship between your rights of property and your rights of conscience and belief, that basically, when you dispose of your property, when you seek to build a business or you seek to earn a living or you seek to farm or ranch or build your home or whatever it may be, really what you’re doing is, at least in part, is you’re exercising various rights of belief and conscience. You’re perhaps, for example, doing what God has called you to do in your life by raising your family or by pursuing a vocation. So property rights are also a very important part of a free society and one grounded in the rule of law. There are probably other rights that I might be concerned about as well. But I mean, at the end of the day, I focus a little bit less on the protection of particular rights and a little bit more on enforcing the structural limitations on government power, separation of powers, federalism, checks and balances. And the reason is because if you if you can work through those problems and you can really protect what I call the “structural constitution,” if you can really make sure that those structural limitations on government power are respected, much of the time rights are not going to be in as great a danger. So you start with that and then as there are transgressions of rights, then you can move to protecting those.

TWS: You mentioned religious liberty and doing the will of God there. You are a devout Roman Catholic. Can you maybe tell us a little bit about the role that your faith plays in your life and in your decision making?

LEO: Sure. Well, I think first and foremost, what my Catholic faith has taught me is that man is made in God’s image and is imbued with individual dignity and worth. And so in thinking about both what the role of government ought to be, but also just how we should conduct our affairs in civil and political society or in the free market, we need to think very carefully about the worth and dignity of the human person and how we can bolster that worth and dignity through our system of government, through the rights that we have, through the laws that we pass, through the voluntary social arrangements that we establish. So that’s probably the most important thing that my faith has taught me. I think a couple of other things that the Catholic faith has sort of wired me to think about — and I think many others think about it the way I do — is, you know, what are the different qualities or characteristics that ought to mark your conduct and your behavior as you sort of plod through your personal life or your professional life? And humility is a very, very important feature of the Catholic faith. As you may know, there’s the Litany of Humility. Of course, the Gospel is full of instances where Christ either directly or indirectly references humility. Of course, His life is a stunning example of humility. And He’s the Son of God. So that is, I think, something that you see throughout different aspects of the Catholic faith, and I think that that’s a very, very important virtue to really work on, because if you can improve your commitment to being humble, to humility, it does sort out a lot of other problems. First, first of all, you’re more likely to respect the dignity and worth of other people. If you’re humble, you’re more likely to be open to what other people are saying, what other people are trying to convince you of. You’re more likely to respect limits on your own authority, and you’re more likely to understand why when other people have authority, they’re allowed to exercise it. I think humility is just another very important feature of the Catholic faith. So, I mean, there are lots of other things you can say, but how the Catholic faith affects the way you think, how the Catholic faith ought to affect the way you interrelate with other people.

TWS: On a related note, what do you see as the dynamic between Christian morality and the structure of the United States, especially going back to the founding? What do you see as the dynamic, and can the structure of the United States stand without Christian morality?

LEO: Well, when you think about Christian morality, really, what you’re doing is you’re thinking about the natural order. Morality is just really based on the natural order of things, the way things are wired, the way things are ordered. That’s why we think about, you know, the sanctity of human life: it’s part of the natural order. So when I think about Christian morality and the Constitution, it’s not that the Constitution is a Christian document, and it’s not that we want to have a confessional state, a state that is a Christian state. What we want to do is we want to have a system of government that is grounded in the natural order of things. In other words, it makes sense, given who we are as humans, what our greatnesses are, what our weaknesses and failings are, and what the natural world and what the natural order is really like. Our government ought to be able to take that into account. And one of the things the Framers did, which is really quite remarkable when you think about it, is they forged a government that really does take into account the natural order very, very well. I mean, take, for example, the whole idea of separation of powers and checks and balances. What is that all about? You know, there are some progressives who want to say, “Ah, you know, that’s just an impediment to progress. And, you know, we don’t need that stuff anymore. That’s just formalism.” No, it’s not formalism. It’s grounded in the natural order. How is it grounded in the natural order? Because those ways of dividing and checking government power are related to the idea that by our nature, humans are weak and they will have a tendency of trying to aggrandize their own power and authority. And so you need to have brakes and guardrails. Or if you take other provisions of the Constitution, like the writ of habeas corpus or due process: again, what you’re seeing there is an appeal to the natural order, this idea that if man is imbued with dignity and worth, then when they are punished or they are being brought before the state, there need to be good reasons, there need to be good reasons. Or if you are going to invade someone’s private space — again, before the Fourth Amendment — unreasonable searches and seizures — there need to be good reasons because we recognize that part of the natural order is the dignity and worth of people. And part of that is them having dominion over their families and over their private spaces. So really, when you get down to it, the Constitution is not a Christian document in the sense that some people might say it is, it’s a document that’s grounded in the natural order much the same way that Christianity and Christian morality are grounded in the natural order of things. That’s, in my view, the way the way to think about it.

TWS: And when society, when culture loses sight of that natural order, it makes sense that the organs of government can no longer uphold it.

LEO: That’s right. And this is what political theorists, going all the way back, were worried about. I mean, political theorists that were influencing the Framers’ vision — I mean, political theorists going all the way back to ancient Rome and Greece — I mean, political theorists, whether they were Christian or not, or whether they were practicing Christians or not — they did appeal to the natural order. And many of them understood that government needs to be framed in such a way that it took account of the natural order, which means understanding the nature of man, the nature of the human condition, understanding the weaknesses and failings of mankind, as well as the strengths that man has: that we’re capable of virtue as well as folly and vice. All of these things are embedded deeply in our constitutional structure and understanding of human nature. And also an understanding of how we are wired as human beings to strive for the good and to strive for flourishing. And so you want a constitutional system that gives people the space they need to do that. All of that’s part of the natural order. That’s not theocracy, that’s just natural law, that’s just the natural order of things, it’s how we and the world are wired.

TWS: Well, that’s all we’ve got. Thank you very much for your time and your insights, Mr. Leo, we greatly appreciate it.

S.A. McCarthy serves as a news writer at The Washington Stand.