Strengthening Constitutional Self-Government

No Left Turns

Powerline and Stuntz

The good people at Powerline have entered into a very interesting exchange with Harvard Law Professor William Stuntz, about whose argument I blogged here. The Powerline posts are here and here. The latter post contains an extensive reply from Stuntz to their original post.

I’ll repeat what I said earlier. I think the most promising basis for any coalition is on local anti-poverty policy. To the extent that the academic Left pays any attention to the people actually doing the work in the trenches, they’ll develop a good bit of sympathy for a faith-based approach. But even in this case there are so many other issues connected with it that are hard for my colleagues to swallow. A lot of African-American churches, for example, are theologically and morally conservative. Here’s an example of one Atlanta church--where MLK daughter Bernice King is an associate pastor--that has drawn a lot of fire from the usual suspects. Can my colleagues get past opposition to gay marriage, on the part either of white evangelicals or African-American evangelicals, however meritorious their anti-poverty work is? Are my colleagues willing to support groups doing good work if they wish to hire only people of faith who are sympathetic to their mission?

The more I think about it, the less convinced I am that Stuntz’s hopes about abortion are well-founded. His argument, in a nutshell, is that the less we talk about the law, the more we can talk about the morality of abortion. This is another way of saying, as pro-choice folks often do, that the goal is for abortions to be "safe, legal, and rare" (p. 42 of this pdf). I don’t think that it’s as easily possible to separate law and morality as Professor Stuntz argues. We tend to embody some of our highest moral commitments in the laws we make and, in turn, the laws help teach us what our moral commitments are or should be. We legislate morality all the time and that, in my view, is both a necessary and a good thing. And until we restore abortion policy to the status quo ante Roe--not illegal, but a matter for state legislation--we cannot have the kind of moral discussion regarding abortion that we need to have.

Roe and its progeny do not encourage moral discussion; they are rather, as Richard Rorty once said about religion, "conversation stoppers." Professor Stuntz seems to think that if we leave the legal framework of abortion rights alone, we can talk honestly and concretely about good and evil, right and wrong. I think we have to "desanctify" the "right" to have an abortion in order to have that conversation. With the framework in place, there will always be the trump--the law says it’s my choice, or it’s between my doctor and me (i.e., it’s discussion about a medical procedure). This does not encourage responsible moral argumentation.

O.K., I’ll shut up now.

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