Strengthening Constitutional Self-Government

No Left Turns

The Rick Warren Show

Well, both candidates did pretty well on the event MCed by that hugely influential nice guy pastor. One big opportunity was presented to McCain, and I hope he sees it and chooses to use it: Obama said both that he was for ROE v. WADE and that he has no idea when a foetus/baby got human rights. (His defense of ROE--that we have to assume that women are morally serious when they make abortion decisions--was exceptionally lame.) Obama also said that, although he was personally against same-sex marriage, the Constitution leaves mrriage to the states. McCain agreed on where the Constitution places decisions concerning marriage, while being tough on opposing activist, judically lelgislating judges. McCain added said he was certain that babies get rights at conception, and we assume that Mac meant that, although his opinion is quite reasonable, he was far from claiming that Courts should simply identify it with what the Constitution says. The reasonableness of his opinion, by itself, would be enough to negate ROE, without producing a kind of pro-life judicial activism.

Now if even a man of Obama’s great intelligence doesn’t know when unborn babies get rights, or even if they have them at all, doesn’t it follow that such decisions should be left to legislatures? Such decisions have to be made, and our Courts should trump our legislatures only when the evidence is clear. And if marriage is also left to the states, then surely the federal Courts should have nothing to say about any rght to same-sex marriage.

Wouldn’t it be great if McCain actually began a populist campaign (see George Will today on McCain’s need to get populist on something) against rights-based judicial activism? The danger, for example, is not that the people acting through the states might choose same-sex marriage, but that it be imposed on them as a matter of individual rights. Because that campaign would be against judicial mandates that seems to force evangelicals to choose between being good Christians and good American citizens, maybe the enthusiasm gap that plagues Mac so far would start to close.

Discussions - 45 Comments

Now if even a man of Obama’s great intelligence doesn’t know when unborn babies get rights, or even if they have them at all, doesn’t it follow that such decisions should be left to legislatures?

I don't see why it follows that because something is unclear, judges have no place deciding an issue. That just seems odd to me. If anything, judges are better placed that legislatures to present full arguments about complex issues in concrete circumstances.

To take another example - very intelligent people disagree on when people should be allowed to own a handgun. That's a broad description of a problem, not an argument for allocating decisionmaking authority to legislatures.

I agree that there are and should be limits on the competence of courts. Some recent decisions impelled me to try my hand at drafting a proposed constitutional amendment, which is at my web page:
So far, I have been unsuccessful in my attempts to start a conversation on this issue, but invite any and all to take a look at my effort and critique it.

Brett biases his comments by skipping the large point of Peter's argument on Courts versus legislatures:

"Such decisions have to be made, and our Courts should trump our legislatures only when the evidence is clear."

It is the judge's role to tell us what the law is, not what we wish it to be. The adversarial nature of our court system, with two parties fighting over the same ground, necessitates winners and losers. The most complex problems, though, require nuance and compromise, which are characteristic of legislatures, not judiciaries. Further, judges are specialists in the law, not in morality. To give answers to complex moral questions in the form of law requires an act of will, again a characteristic of legislatures, not of judgment, the characteristic of the judiciary.

This is to say nothing of democratic theory. As Lincoln stated in his First Inaugural (in reference to Dred Scott), when the people leave it to the courts to make the most important decisions, they have that much ceased to be self-governing.

From his shifty answer on same sex marriage (he said marriage was between a man and woman is his personal opinion but never said it should be the law) it is clear that Obama is counting on the judicial branch to mandate same sex marriage in the same way that it mandated our radical regime on abortion.

McCain's challenge is to oppose judicial usurpation while not attacking the judicial function. McCain has to find a way to stand up for socially conservative policies and square that with respect for the Constitution, the role of judges and (not least) elected legislatures. A suggested tack.

1. Obama is a radical leftist on social issues. He is even against banning partial birth abortion. He is even against born alive legislation in those cases where babies somehow survive attmpted abortions (let Obama argue that his record isn't his record).

2. Obama wants to appoint radical judges who will ignore the Constitution and impose their unpopular liberal policies on the country.

I think its is important for McCain to stress that Obama's liberal judges will ignore both the Constitution and democratic majorities. Most people understand that judges, as part of their vocations have to sometimes reach unpopular decisions. To the extent that they are rooted in the rule of law, most people accept that. But if activist liberal judges can be portrayed as overruling both the rule of law and the popular will, that places a politics of conservative constitutionalism in a good place.

If McCain said that he is "certain" that "babies get rights at conception," isn't that inconsistent with arguing that abortion should be controlled to democratic control by state legislatures? To state that a fetus has "rights at conception" would seem to imply that state legislatures do not have the power to allow a woman to terminate a pregnancy. In other words, conservative judicial activisim, instead of leftist judicial activism. Don't think the Obamanists won't exploit this.

I would suggest that conservatives, if they want to win rather than just strike poses, ought to recognize that we need to get votes from a significant number of pro-choice voters, and that, even if Roe were overruled, there is no chance of the country (other than a handful of states, perhaps) returning to the days when legal abortion was limited to cases of a serious threat to the mother's health. The best we can realistically hope for is to limit Roe v Wade so that late term abortion can be prohibited. At some point, the GOP is going to have to start trying to convince the pro-lifers to accept half a loaf. The alternative is the coninuation of the radical pro-abortion status quo.

The first sentence of the previous post should read: If McCain said that he is "certain" that "babies get rights at conception," isn't that inconsistent with arguing that abortion should be returned to democratic control by state legislatures?

DJF, your point is contingent on what McCain's meant when he said that human rights come at conception. If McCain meant that he believes that the courts should recongize that embryos and fetuses are full human beings and should be granted the full panoply of contitutional rights by judicial fiat, then you are right. That would be conservative judicial activism and a travesty of originalism.

But what if McCain meant that he personally believes that embryos and fetuses are full human beings, but recognizes that the Constitution is silent on the status of the unborn and feels constrained by respect for the Constitution and democratic priniciples to work to restrict abortion through the legislative process rather than through twisting the Constitution and corrupting the judiciary to impose a policy that the Constitution neither mandates nor prohibits? Then you would be wrong. Judicial activism would be neither a logical nor desirable consequence of such a line of reasoning. I also believe that is what McCain meant as it aligns means (the electoral process) and ends (restricting abortion).

There was an exchange on this subject in the magazine First Things involving Justice Scalia. Its worth a look.

I think it's perfectly possible for McCain to believe that babies have human rights beginning at conception, but that the Constitution itself can't be construed as sharing that view so certainly that judicial review can be based on it. If Mac really means that (which, of course, I doubt), he should work for legislation that more or less completely outlaws abortion. I agree with Pete that even if we concede that justices would make wiser laws than members of our legislatures, they're still not empowered to do it. We do have a democracy, and our legislatures are only limited by the Constitution.
Part of our problem in thinking about this is the Court's tyrannical assertion in LAWRENCE v. TEXAS that the word liberty in the Constitution has no definite meaning. It is merely a weapon to be used by each generation of Americans, led, of course, by the Court.

Peter and Pete: again, how do you think about Heller under the argument advanced here? Since there is in fact some lack of clarity about the boundaries of the right to possess a firearm for self defense purposes, why not let legislatures decide how far it extends and just have courts employ rational basis review (as you are counseling in the abortion context)? That might be a good result, and in fact it might be one I agree with. But the result doesn't follow from the fact of controversy. I suppose that following under Peter's last comment, it's not unfair to say (ironcially) that the term "keep and bear arms" doesn't have a definite meaning and is just a weapon for a tyrannical court to employ against other branches.

I agree that judicial power needs to be justified. I just think it's too easy, given a written constitution, to make the legislature the (nihilistic) Borkian default (there's my bias for you).

I think that it's also worth looking at what courts have actually done in the abortion area, not some caricature of what they've done. Yes, outlawing abortion in all circumstances is off the table, at least for now. But states can do a lot of things to restrict abortion - seems that the result is a lot like a long-running attempt at the nuance that Pete says is the province of legislatures. Which makes me think that what is desired by Pete is not nuance, but an outright ban on abortions, with the courts allowing that result. To those who would then be forced by the state to carry a pregnancy to term - well, tough luck, you got outvoted. I think that more is owed that latter group than a mere head count.

Brett, several points.

1. Are you suggesting that the right "to keep and bear arms" in the Second Amendment is LESS clear than the right to abortion? This kind of argument ("well YOU get to stike down laws that YOU don't like and so I should too") is nihilistic and can be used to justify both abandoning judicial review or using judicial review to replace democratic self government.

2. I don't think abortion laws should be governed by a "rational basis" test. I just think the Constitution places abortion in the legislative realm. I don't care whether a judge thinks a law is rational as long as it is constitutional. Would we allow judges to review marginal tax rates based on whether the rate of taxation is rationally related to the stated purpose of the government?

3.The case of abortion rights vs. Second Amendment rights is a pretty clear case of the Progressive view of the Constitution versus the Constitutionalist view. The ROE/Casey decisions inform us that the judges can discover (create, whatever)new rights based on the word liberty (LAWRENCE merely extends this point). However the world libery is really just an excuse- a weapon. It is the imposition of policy preferences through judicial review. The pro Heller justices went out of their way to establish the original purpose of the Second Amendment and its relationship to legislative. prerogatives.

Alot of our confusion comes from a disagreement over the relationship between judicial review and the Constitution. In the late 1800s/early 1900s many Progressives believed that the Constitution was outdated but that the amendment process made amending the Constitution too difficult. This originally put them in the position of oppossing judicial review. But Herbert Croly discovered a way out. Croly argued that Progressive judges could in practice amend the Constitution (bring it up to date) by issuing decisons that were based on contemporary beliefs rather than constitutional text and history.

This was originally an explicitly anti constitutionalist approach. Croly wanted judges to apply enlightened contemporary knowledge rather than dead constitutional text. But through use, this approach has become the "living Constitution" school. People who were influenced by Croly (even if they never heard of him) now believe it is their job to redefine the Constiution as their enlightened judicial minds counsel them to. That is why many of the same people who believe that the Constitution protects abortion rights will tell you that the Second Amendment is "obselete". Every generation (of judges) gets to redefine libery as they choose. A problem for our political culture is that the anti constitutional basis for this approach has been lost even to the people who share the approach. I doubt that even Justice Breyer believes that his approach to the Constitution is based on contempt for the Constitution. For generations the belief that judges ought to redefine the Constitution in the direction of contemporary (in practice liberal) beliefs has been taught as the true school of constitutional interpretation.

A proposition: an anti-judicial activist populism is the one thing needful to free American citizens from the authoritative twin myths of 1) limitless/bottomless individual freedom 2) the moral-political authority of experts. These apparent opposites are two sides of the same weapon wielded against the moral competence of ordinary people. The opposition to judicial activism must be seen as the entering wedge of a moral-intellectual re-armament against the profound alliance of liberationism and progressivism. If it ever dawns on regular, morally responsible citizens (and husbands & wives, fathers & mothers, brothers and sisters) that they might know more about what freedom means and what makes it good than the avant-garde, then all bets are off.

Power to the people! Right on! Ralph is saying what Republicans need to be saying in print and McCain needs to be saying (in a simplified form) on the stump.

One partial dissent. To have staying power, any populism that opposses judicial activism must also be one that stresses the rule of law under the Constitution. The Constitution is also quite popular and so is playing by the rules, so it is important to show that opponents of judicial activism are better constitutionalists as well as better democrats. A suggested formulation: "Judicial activists think they can ignore the Constitution and impose their beliefs on you. Together we can stop them."

Or to put it another way, the judicial activists have to be shown to have contempt for both democratic opinion and for the (constitutional) rules that we all have to live by. Another suggested formulation: "Judicial activists think they are above you, and they think they are above the rules. They are doubly wrong."

Agreed, Pete. But the authority of the rules must be rooted ultimately, if only implicitly, in the goodness of freedom as available to regular folks.

Pete, well of course you're right. I may have sounded too anarchist in invoking 60s slogans.

Peter,I never took the slogans seriously and never thought you were an anarchist. I was talking about a more subtle problem. By invoking democratic majorities against judicial activism, conservatives risk giving supporters of judicial activism the oppurtunity to posture as defenders of the rule of law. This is a problem for two reasons.

1. The posture is totally unjustified.

2. The same public that is in favor of democracy is almost as invested in a rule of law that limits democratic politics. As the Progressive critics of the Constitution pointed out, the public really does revere the Constitution and this really is a problem for Progressive elites who want to impose their policies from the bench.

In this sense, a critique of judicial activism that demands judges respect both the Constitution and democratic majorities is even more populist than one than simply demands defference to majority opinion.

These apparent opposites are two sides of the same weapon wielded against the moral competence of ordinary people.

Is it an expression of respect for the moral competence of ordinary people to say that the government can force you to carry your pregnancy to term? This is odd, given the fact that the public position on abortion is actually about where the Court is: some restrictions are OK, even severe restrictions in a practical sense, but an outright ban is not permissible. It's the moral avant-garde on the right who think otherwise.

And let's say Roe is overturned, and one state votes to ban abortion entirely. Would that ban be an expression of respect for the moral competence of ordinary people in that state? It seems to me exactly the opposite: abortion bans are an expression of distrust of the ordinary moral decisions of ordinary people. This is true of Lawrence as well: throwing people in jail because they have sex with people of the same gender is an expression of distrust. And probably criminal bans on such behavior - at issue in Lawrence - are not something that ordinary people find intuitively morally appealing.

Brett, your post demonstrates the combination of lawlessness and elitism that makes judicial activism so distasteful. The judges must assume themselves to be more enlightened than the Constitution (which never aspired to regulate abortion or gay sex) and more democratic than the people (who might make policy choices that Brett believes to be unwise and/or unfair). Nevermind the Constitution, nevermind your beliefs, we know what is good for you.

Pete: try asking people which is more distasteful: the Court telling Texas that it can't throw gay people in jail for having gay sex, or Texas actually throwing gay people in jail for having gay sex. Similarly, try asking them whether it's more distasteful for the Court to say to South Dakota that it can't ban all abortions, or for South Dakota to throw doctors (and presumably women) in jail for having abortions.

The reason why right-wing constitutional populists aren't generally repeat invitees at dinner parties is that they get the answer to that question wrong.

OK, I made that last part up (the part about the dinner parties).

Pete and Brett,

Although you have opposing views on abortion, you seem to agree that courts ruling that unborn children possess rights would be an instance of judicial activism, right or wrong. But the essence of judicial review consists in upholding the plain language of the Constitution and the laws. If unborn children aren't persons, what are they? If human life begins at conception, as Sen. McCain rightly affirmed, how can these children be denied the protection of the laws?

It speaks volumes that the U.S. Supreme Court had to rely on "penumbras" and "emanations" to discover a right to privacy that somehow encompassed the right to snuff out a young life. It is no less telling that the Court had to run on for a hundred pages to find that no one knows when human life begins. Of course, the same court spoke of trimesters during pregnancy, which was long ago found to last for nine months. Defending rights is not judicial overreach; inventing them is.

Brett, When it comes to asking the people when it comes to making laws, I'm in favor of... asking the people. You know... through elections. Some sensisitive people will be offended by the results of those elections. Some very sensitive people who think that their policy preferences should be imposed on the whole country regardless of Constitutional or electoral warrant (some of them named Breyer, Ginsburg, Stevens, Obama) will be very cross indeed. I'm ok with that. More to the point, its a democracy with a Constitution. The Constitution gives the state legislatures and the Congress certain powers. This is in respect to the voters who have a right to self government. If certain unfashionable voters in certain unfashionable states should pass laws that judicial elites don't like, they can try changing the Constitution or seeking legislative office in those states.

Or they can assault the Constitution in order to short circuit democracy as a way of imposing their policy agendas. Let the supporters of a liberal judical regency tell us that they will be bound neither by the Constitution nor elections and see where it gets them.

It of course goes without saying that if the supporters of judicial activism were confident in the popularity of their policy preferences they would seek their victories through the electoral process. If they were confident that the policies brought through judicial usurpation were popular, they would be willing to subject those policies to the power of the voters as expressed in elections.

But elections are hardly needed. The supporters of judicial activism know what we want. Our votes might say no but our eyes must say yes.

Brett: Who, exactly, is proposing to throw people in jail for having gay sex? No one has advocated that for decades. Even before the Supreme Court invalidated laws criminalizing gay sex, weren't such laws a dead letter? It was probably quite a feat for gay rights advocates to engineer an arrest for consensual "sodomy" so that it could be challenged in court.

Your statement that most people would find jailing people for abortions more "distasteful" than the Supreme Court's invalidation of an anti-abortion law assumes that most people in the jurisdiction agree that abortion should be tolerated, or at least not treated as a criminal offense, even if they disapprove of it themselves. At this point, that is probably true of most states of the Union, at least with regard to abortion before the late stages of pregnancy. This is why I think conservatives and the GOP should give up on abolishing non-therapeutic abortion outright and concentrate on limiting Roe to allow prohibition of late term abortion.

Please note that this is not an endorsement of Roe (which I detest). I simply think we have to recognize that Roe (and other factors) have changed the country's moral landscape drastically since 1973. Indeed, at this late date, I don't think an outright overruling of Roe would be constructive step from a conservative point of view (even if it becomes possible, which it isn't now). Overruling Roe would doubtless engender a hysterical reaction from much of the electorate (helped along by the media, the Democrats, and the legal profession, among other elites) that would result in mini-Roe's issuing from most state supreme courts and, ultimately, would assist the left in having an even more extreme abortion rights regime written into the federal constitution. I am a bit surprised that many of the commenters here seem to believe that a return to the pre-Roe status quo on abortion law remains a politically viable option after the passage of 35 years.

Richard, morally I agree with you. The problem is that the Constitution as originally written and the relevant amendments (1-10, 13, 14,) never intended to address the case of the unborn. There is no reason to believe that the relevant drafters considered abortion to be anything other than a legislative issue. For a pro life judge to substitute their personal beliefs in the personhood of the unborn by extending the protections of the Bill of Rights and the Reconstruction Amendments to the unborn would be judicial activism. A genuine constitutionalism means accepting that the Constitution does not always mandate one's own policy preferences or even basic justice in a particular case. But constitutionalism is the best path to a decent democratic politics. Lincoln would have understood the ironies inherent in the situation.

That does not mean that unborn children MUST be denied the protection of the laws. Statute law would still be available as a remedy. For a better summary of the argument, please read Scalia's argument in FIRST THINGS magazine. The debate in FIRST THINGS took place over two issues. My stuff being mostly in storage I can't tell you which.

DJF, my guess on what happens if Roe is overturned. Most states ban most late term abortions. A few states ban most early stage abortions. Some states cling to the radical ROE regime. The argument moves more toward the personhood of the fetus (implicitly aknowledged in the banning of late term abortions) and when this personhood is attained. The results of this argument are unpredictable. Abortion is not fully banned in the forseeable future but more restricted than presently. All in all better from the pro life perspective.

There's no evidence that men who signed the Constitution or those who drafted the Fifth or Fourteenth Amendments regarded the unborn as persons with rights. There's also no evidence that they would have thought laws based on that premise areunconstitutional. Those who argue for the "absolute rights" of the baby from the moment of coneption rely on we now know through the science of embryology. But, to say the least, there's no scientific consensus on the significance of what we now know, and, say, Robby Geroge's statement of the facts and their implications is pretty controversial. So it would be judicial activism for the Court to saay that every foetus--much less every embryo--is beyond a reasonable doubt a person with rights according to the Constitution. If ROE were reversed, it would be up to Robby etc. to persuade his fellow citizens he's right.

DJF: Read the facts in Lawrence again.

Pete - Thanks for the response. I wish I could share your optimism.


Antonin Scalia's judicial "philosophy" is not anchored in the natural rights philosophy which was the common coin of the founding generation but in Holmesian nihilism which denies any self-evident truths, as, not incidentally, are stated in the Declaration of Independence. The Constitution called slaves "persons" in spite of the fact that slavery was legal. They did not become persons just because the authors of the Constitution called them that, of course; but the recognition is based not upon precedent, obviously, but natural right. The Constitution is grounded not only in the consent of the governed, but in the moral and political principle which alone can provide a foundation for self government, which is that all men are created equal in their rights to life, liberty and the pursuit of happiness.

Scalia has scoffed at the Declaration and even at the platform of the Republican Party at its founding, which was based on the Declaration, as mere political propaganda. Clarence Thomas is the only current Supreme Court justice who understands the true foundations of republica government

Richard, Scalia's article was about the legal status of the unborn at the time when the Constitution was written and how this relates to original intent jurisprudence. Within those limits, I believe his article is persuasive. You are certainly right that Scalia is not a great example of natural rights thinking. But Lincoln is, and Lincoln argued that supporters of natural rights philosophy have to work within the Constitution as it is, not as they would like it to be - including working to amend it. I refer you to his First Inaugural where Lincoln assured the country that he not construe the Constitution by "hypercritical" standards. Lincoln was saying that he would enforce the Fugitive Slave Clause regardless of how odious it was to him. He would not interpret the Constitution contrary to its meaning even though the provision violated the very natural rights philosophy that the Constitution was based on. Thats what I meant about the ironies inherent in the situation.

There is just no evidence (as Peter Lawler mentioned above) that the authors of the Constitution of of the Reconstruction Amendments considered the unborn to be "persons" or that the legal status of abortion was changed by the Constitution. In both eras, there was a wide variety of restrictions on abortion, but abortion was legal in some cases. Reading the personhood of the unborn into the 14th Amendment would be a lawless act if the intentions of the writers of the relevant passages are the measure of the meaning of those passages.

But thats not the end of the story. Lincoln understood that the Constitution (for its flaws, and they were greater then than now) was an expression of both the right of self government and the rule of law. It was an imperfect instrument of the natural rights philosophy that the Founders and Lincoln believed in, but citizens were obligated to obey it, as it was, until it was changed within the constitutional means contained within the document itself. Natural rights philosophy formed the moral basis of the Constituiton, it offered a basis for working within the Constitution and even for offering amendments to the Constitution, but natural rights philosophy does not form the basis for reading the imposition of policies that were never intended by the writers of the Constitution, even if those policies are fairly drawn from the same natural rights philosophy that formed the Constitution itself.

I would argue that the same natural rights that form the basis for self government, the rule of law (and yes the rights of the unborn) obligate us to work within the Costitution as it was intended to be read by its authors. To do otherwise would be to adopt the tactics not of Lincoln but of Roger Taney and the authors of ROE, and to argue that we would be adopting those tactics in the sevice of the Declaration would not excuse us.

RR, I wish I had time to say more. But I've met few human beings less nihilistic than Scalia. What he says is that the Declaration, by itself, can't be the basis for JUDICIAL REVIEW. He certainly believes in natural law, but as a justice he's interpreting what the Constitution actually says. The actual text of the Constitution suggests strongly (as Storing etc. have shown at length) that the Framers regarded the enslaved blacks as human beings with rights. But we just don't have the same evidence when it comes to unborn babies. If the Declaration in Lockean, we'd almost have to go in the other direction: According to Locke, the Greek practice of exposing deformed babies to die isn't wrong according to nature, but according to revelation. Needless to say, I don't agree with Locke on that, but I have to admit that we just don't know whether Mr. Jefferson and Mr. Franklin would have understood unborn babies as persons with rights.


Of course, we should work within the framework of the Constitution. That framework is broad enough to include every power which is necessary to carry into execution the powers granted. Amendment 14 denies to states any power to deny to persons in their jurisdiction the equal protection of the laws. That protection extends to life, liberty and property. States are free to exercise their legislative discretion but subject to the power of Congress to enforce the amendment's provisions, which is in turn subject to the jurisdiction of the federal courts. Congress and the Supreme Court are co-equal branches of the federal government. Either, therefore, is free to change Roe v. Wade--Congress by defining what is a person or by redefining the courts' jurisdiction.

Since it is the Supreme Court which caused the damage, as it were, by denying to an entire class of persons the protections of the Constitution, it is certainly not judicial usurpation to reverse Roe, as it reversed Plessy v. Ferguson. The basis for its ruling was that the unborn are not persons, therefore the "privacy" of the mother may override their rights. If the Court admits its mistake and acknowledges that the unborn are indeed persons, that would satisfy the minimum demands of justice. It would then be up to the states to pass legislation in pursuance of this corrected understanding. Whether that requires "criminalizing" abortion or not is a matter of prudence but safeguarding the rights of the unborn would not be.

When Abraham Lincoln pointed out that Dred Scott v. Sanford implied a right to own slaves anywhere in the United States, arguing that if there is such a right there can be no basis for restricting it anywhere, he was not arguing against the reasoning but rather the major premise, viz., the right of property in a slave. Lincoln was a broad constructionist in the Federalist tradition, and had no quarrel with expounding the rights secured by the Constitution in the broadest possible manner, provided of course there was no explicit exception in the Constitution itself. I commend the reasoning of John Marshall in McCulloch v. Maryland (1819):

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American Constitution is not only to be inferred from the nature of the instrument but from the language. Why else were some of the limitations found in the 9th Section of the 1st Article introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

While I agree that abortion as a form of birth control is morally wrong, I do not agree with what seems to be the implication of some of the commenters here that a fetus has the same "natural right" to life as a born human being. Perhaps I am misinterpreting people's comments (and, if so, I apologize), but it seems to me that this view would reject abortion even as a means to protect against serious threats to the mother's physical health, at any point during the pregnancy, early or late.

In general, I think the pro-life community would be more politically and socially effective if it were not so given to making broad, absolutist statements making it sound as if, say, aborting a just-conceived embryo by taking a "morning after" pill (or using an embryo in stem cell research) is just as morally wrong as aborting a healthy pregnancy in the ninth month or, for that matter, outright infanticide. If the public is presented with a choice between the absolutist pro-life position and the absolutist pro-choice position, the sad fact is that a majority of the country will choose the absolutist pro-choice position.


If the unborn child has no natural rights, how can it be morally wrong to use abortion as a form of birth control? While everyone has a right to life, everyone also has a right to self defense. If the birth of a child actually threatened the life of its mother, no one doubts that the mother has a right to protect herself (although here are mothers who actually sacrifice themselves for their babies). As to health, that has been defined, and likely will always be defined, as broad as the world, which is exactly what the Supreme Court did in Roe v. Wade. That is the basis for abortion on demand for the entire nine months of pregnancy.

There is no conflict between making "broad, absolutist statements" and exercising prudence in particular cases, as I pointed out above. As to the pro-lifers' effectiveness, I should point out that they have been patient (daily crucified, as Lincoln said about slavery) for 35 years and it has borne fruit. The late-term, partial-birth abortion procedure is now illegal, babies born alive are entitled to legal protection, and the child of a pregnant mother is considered a homicide victim if both are killed. The pro-aborts are horrified at these cracks in the abortion wall because they know that they can lead to the undoing of Roe. Once plainted, the seed of moral wrong regarding abortion can be fatal.

Most of the public does not understand that Roe established abortion on demand, but whenever citizens are polled on the subject, a majority agree that abortion is wrong merely for convenience or as a form of birth control. The burden on the right-to-lifers is to point out the true import of Roe. The more that is done, the more Roe is endangered.

Richard, we agree that ROE ought to be overturned, but disagree on the grounds and the implications. ROE was constitutionaly wrong because it created a right to an abortion where none existed, not because it denied personhood to the unborn (whether personhood for the unborn is morally correct is a different question). By reversing ROE, abortion and that status of the unborn would revert to being a legislative question - which was its status in both the Founding and Reconstruction eras. I am not aware that the Supreme Court has ever asserted that that the unborn are persons as defined by the 14th Amendment or that the drafters of the 14th Amendment ever intended such an interpretation. The Supreme Court asserting the personhood of the unborn would in practice be doing what the Progressives do - invoking contemporary understanding(of the fetus and embryo) to judicially create constitutional rights not contemplated by the drafters. The fact that Progressive claim that the rights are historical and transient and that we claim that the rights are natural and eternal does not limit the damage such actions do to the rule of law. Each side uses the judiciary to impose its favored policies in disregard to the intents of the drafters of the constitutional provisions they cite.

The problem comes down to the relationship between fidelity to the original intent of the drafters of constitutional provisions and the purpose of defending natural rights. By asserting definitivley the personhood of the unborn, the Supreme Court would be substituting its understanding of personhood over the understanding of those who drafted the relevant constitutional provisions. The Supreme Court's understanding of personhood might be morally superior to that of the 14th Amendment's drafters, but by going beyond the Constitution's intent, it would be doing violence to both the rule of law and (to the extent that the Suprme Court struck down state and federal freedom of abortion laws) democracy too (since the Supreme Court would be withdrawing legislative prerogatives without constitutional warrant).

You are of course right that the Constitution grants the powers needful to carrying out its provisions. The 14th Amendment gives certain Constitutional protections to persons but unfortuantly we are bound as citizens (or ought to be) by the drafters conception of persons (at least for purposes of judicial review)not our own. One of Taney's great errors was to substitute his contemporary definition of person (which excluded blacks) with that of the authors of the Constitution (which certainly did not exclude blacks from personhood). Richard, for the very best of reasons you are doing the same thing, only you are hoping that the Supreme Court expands personhood past its oringinal intent rather that restricting it.

Peter Lawler,

Justice Scalia may "believe in natural law," but he doesn't "believe" it has any significance for the interpretation of the Constitution of the United States. That is like saying I believe in the Bible, but I don't think it has any bearing on my life. When the authors of the First Amendment sought to secure the freedom of the press, they certainly never knew anything about the telegraph, the radio, the television or the internet, but who can deny that the freedom of the press comprehends all future developments of publication? Of course, we have done just that, in effect, wtih Congress virtually granting monopolies to television networks until the marketplace broke them down. There is no evidence that the founders believed that all women should have the right to vote either; the only reason for the Nineteenth Amendment was to make the right national.

And it is not merely an accident that subsequent to the passage of the Fourteenth Amendment, states passed laws restricting abortions. Granted, it was done primarily for the sake of the mother, but in those does it was thought that mothers were the natural defenders of the babies, rather than their enemies. And as I stated above, the Supreme Court made the mistake of denying personhood to unborn children, and the Court has a responsibility to correct itself. If not, Congress has the power to define a person or to remove these cases from the Court's jurisdiction.

Richard: A few points in reply to your comment #36:

1. It does not necessarily follow from the position that an embryo or a fetus does not have the same moral status as a born person that abortion is a matter of moral indifference. Neither does it necessarily follow from the position that it is morally permissible to abort a zygote or an embryo, or use it in research, that it is also morally permissible to abort a healthy fetus, with a functioning nervous system, after 8 months of pregnancy.

2. I think your apparent endorsement of the permissibity of abortion to save the mother's life implicitly concedes that the fetus has lesser moral status than the mother. The fetus is not an attacker seeking to kill the mother. The situation forces us (including the mother) to choose which of two innocent beings to save. In fact, it is only the mother who has any responsibility for bringing the situation about (assuming that she was not raped). I recall learning that the Talmud somewhere approves abortion to save the mother's life by analogizing the fetus to a "pursuer," but I do not find this analogy convincing.

3. I'm well aware of how the left defines "the health of the mother" to permit abortion on demand for all nine months. What I'm suggesting is that conservatives should be working to enact laws meaningfully restricting late term abortion (i.e., defining "the mother's health" to exclude the psychological effect) and to appoint Supreme Court justices (like Roberts and Alito) who would allow such meaningful restrictions of late term abortion, although they might not vote to overrule Roe (which, as I have already argued, would likely be a political disaster, not only for the pro-life movement, but for principled constitutionalism in general).

I'm well aware of the public's confusion, much of which results from the fact that most people really would prefer not to think about this distasteful subject. That people disapprove of abortion as a birth control method does not mean they necessarily want to criminalize it. The point I was trying to make is that when pro-lifers demand that conservative politicians not only oppose late term abortion, but pretend that we are on the way to outlawing abortion altogether, even in the early stages of pregnancy (and, for good measure, morning after pills, stem cell research and in vitro fertiliziation as well), they are playing into the hands of the left, which is skilled at demagogically leading people to believe that permitting any restriction of late term abortion will ineluctably lead to a total ban of all abortion, no matter how early in the pregnancy, and regardless of the circumstances. In other words, you undercut yourself when you make "personhood from conception" the issue, rather than late term abortion and the broader issue of self-government v. judicial authoritariansm. Again, I would remind you that Republicans need to get votes from at least some generally pro-choice citizens (although obviously not NARAL ideologues) if they are to remain a factor in governing the country.


Little did I realize what a snoozer of a decision Roe v. Wade was. Why, all it concerned was nothing more than the Supreme Court second-guessing the legislative discretion of the states, a process well developed since 1925, when Congress passed the Judiciary Act that permitted the Court to use writs of certiorari to bring up cases that the votes of four Justices determined were ripe for review. We are not to understand the invention of a practically unlimited right to privacy as a smokescreen for permitting the killing of what turned out to be tens of millions of unborn babies but instead as a crimp in the style of state lawmakers. The moral outrage of millions of our citizens, grounded in natural rights, is so much misplaced anger when the real issue is the rule of law in the narrowest sense of the term. I submit that no provision of the U.S. or state constitutions ever affirmed any right to have abortions, nor were there court precedents, for the same reason that they had never affirmed the right to life of the unborn fetus: because no one every imagined that the former ever existed or that the latter ever needed to be affirmed.

Granted, opponents of slavery were bound to accept its constitutionally protected existence in certain states as the price of keeping it out of theirs, but Roe did what the inevitable sequel to Dred Scott would have done, which is to make an evil (not protected by the Constitution) universal rather than particular. The majority opinion in Roe v. Wade not only disputes that the unborn child is a person but spends most of its pages reviewing all the theological, philosophical and legal ambiguity that supposedly backs it up. Of course, the Court knew when life begins. It had evidence before it from biologists that life begins at conception. Consider this passage from Roe v. Wade:

A. "The appellee and certain amici argue that the fetus is a 'person' within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus's right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument. 51 On the other hand, the appellee conceded on reargument 52 that no case could be cited that holds that a fetus is a person within the meaning of the Fourteenth Amendment."

It may well be necessary to amend the Constitution to ensure the right to life of the unborn child, but that is because nothing less will suffice. It does not mean that the Court cannot reverse itself, not only on the conclusion that a woman has a right to privacy comprehending her pregnancy, but on the major premise that what is developing inside her is not a person. It can hardly be lawless to clean up judicial messes thoroughly, and not accept halfway measures that leave the constitutional evil intact.


1. Apparently, from your point of view, nothing follows from permitting or prohibiting abortions. Yet we know that Roe gave us abortion on demand for all nine months, not to mention, by the force of its principles and its example, the unwanted "right to die" for elderly, disabled or "vegetative" persons. Not surprisingly, the pro-aborts are hysterical over any limits on abortion, which the pro-lifers have succeded in imposing (outlawing partial birth abortions, protecting children who survive abortions, designating as murder the homicides of mother and unborn child).

2. You are certainly right in not regarding the unborn child whose birth threatens the life of the mother as an "attacker," but that does not by itself change the threat into something else. If a drowning person tries to pull me down with him and I save myself by extricating myself and thereby letting him drown, I have not devalued his life but simply protected my own.

3. The public confusion you speak of is no accident. It is the result not only of a reluctance to think about abortion but a deliberate deception carried out by the pro-aborts. Many people also have trouble believing that Islamic fanatics really do want to kill us infidels or that homosexuals really do want to turn the moral code upside down, but we must tell them anyway because great evils will befall, or continue to befall, us if we do not.

We do not damage our political standing regarding abortion or other issues by emphasizing the interconnectedness of all the issues that you mention. That constitutes the agenda of the left. We may not wish to press our entire position all at once, but we should understand the principled basis on which we stand as the only way to accomplish even limited objectives. What we should be mindful of is that the more we win on the allegedly peripheral issues, the more the nation moves toward a tipping point that eventuates in reaffirming the fundamental principle that "all men are CREATED [not born] equal."

Richard, I would suggest that the Supreme Court inventing a new right from whole cloth is no snoozer. It did not merely crimp the style of lawmakers (federal as well as state), it withdrew power from the voters without contitutional warrant. The rule of law and democracy are no small things. They are also part and parcel of people's natural rights. Pro lifers had every right to be outraged that their (perfectly constitutional) right to elect representatives to regulate and even ban abortion was snatched from them by lawless court intent on imposing its policy preferences. That is enough to be outraged about without having to believe that the Founders or the drafters of the 14th Amendment thought that their constitutional provisions secured political or procedural rights for the unborn. Not only is there no case that I am aware of, but there is also no writing by any of the drafters of any of the relevant provisions regarding the legal status of abortion. Its a significant silence. In their abscence, and in the abortion regimes that existed at the time of their drafting (some abortions legal, some not) it seems most reasonable to assume that they left the issue up to legislatures to sort out. After all, that is where the issue was from the Founding until ROE.

A reversal of ROE would return abortion to its constitutional place pre ROE. That is not a partial reversal, it is a full reversal. This approach also has the benefit of not replacing pro abortion judicial activism with pro life judicial activism. Abortion goes back into the democratic politcal arena - which is where the drafters seem to have wanted it (to the extent that they thought about abortion at all).

An amendment as you suggest would indeed be a boon to the pro life cause (though highly unlikely in the forseeable future, but who knows?)It would also have the salutatory effect of expanding the protection of the 14th Amendment to the unborn through constitutional means rather than through judicial activism.

DJF, a word (actually quite a few words)on your points.

1. A principled and democratic constitutionalism would not be afraid to put the abortion issue before the voters. After all, thats where the Constitution puts it.

2.Doesn't it tell us something that pro abortion radicals are so desperate to keep abortion out of democratic politics? They know that in any argument over the humanity of the late term fetus, they are likely to lose. And not just lose on policy, but on the principle that at some point the unborn attain rights that the government has an interest in protecting. Pro abortion radicals also know that this creates a potential slippery slope. They suspect that once this principle is established,the public argument over the nature of the fetus (does it have a heartbeat? does it react to pain? does it cry?)will push the frontiers of public opinion in a more and more pro life direction. I suspect that the fears of the pro abortion radicals are well founded.

3.You are of course right that pro lifers would do well to adopt a gradualist politics and check any utopian expectations. The nature of the US federal system alone makes it unlikley that a uniform and national pro life abortion policy would be adopted in the forseeable future. If Roe is ever reversed, pro lifers would have the task of convincing majorities of their fellow citizens to adopt pro life policies. But putting abortion policy in the democratic sphere would probably be more help than hinderance to the pro life cause - if the pro life side responded to such an event with skill and prudence.

Richard - I think we may be reaching the point of going in circles, but here's a few brief responses:

1. My first point was not about Roe. It was that one need not accept the absolute moral equality of pre-birth and post-birth human life in order to oppose abortion as a method of birth control. Further, one can logically take the position that the moral status of the unborn human life rises as the pregnancy develops. This happens to be what I think; I may be wrong, but I suspect most Americans believe something like this. I understand that this is not your view, but you should acknowledge that the NARAL/Obama position is not the only logically coherent alternative to your own.

2. I don't accept your analogy to the drowning person pulling down another person. The drowning person is still engaging in voluntary conduct that threatens the other person's life. I would also note that your view of the equality of pre- and post-birth life would seem to require a rape victim to carry a resulting pregnancy to term.

3. I'm well aware of the propaganda carried out by the left and the MSM on the abortion issue. What I think you overlook is that this propaganda has become conventional wisdom in much of the country, and cannot easily be displaced, especially since everyone in their mid-40's or younger has reached puberty under the Roe regime. I don't know what percentage of women in the country know of at least one friend who has had an abortion, but I suspect it is rather large. Even if we want to press for overruling Roe as a matter of self-government, I believe - I can't prove, but I believe - that announcing an intention to do away with abortion altogether is simply a bridge too far at this point. You seem to grudgingly acknowlege this when you say that maybe we won't wish to "press our entire position all at once." This would leave conservatives open to charges of deceptively seeking to advance a hidden agenda. While I respect the principles that motivate you to seek to ban nearly all abortion, I don't think that these principles are, as you claim, "the only way to accomplish even limited objectives."

Pete - Again, I wish I could share your optimism about how the overruling of Roe would play out politically. I could be wrong, of course, but, as I've said before, I think there would be a hysterical negative reaction throughout the country (fueled, of course, by ignorance and demagoguery) that would sweep away the possibility of any effective opposition to leftist judicial authoritarianism on any issue. I'm no expert on the Supreme Court, but I suspect that concerns similar to mine will keep Roberts and Alito from voting to overrule Roe outright, as opposed to limiting it.

DJF, I agree that Alito and Roberts will continue to take a gradualist approach to eroding the ROE regime. I suspect it has more to do with the balance of power on the court than a desire to avoid enflaming pro choice opinion. We simply disagree about the potential for a democratic politics of abortion post ROE.

It has been a pleasure conversing.

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