June Medical reminds us how far we are today from Marbury v. Madison’s holding that courts merely “say what the law is.”
It’s time for Supreme Court nominee hearings, and that means it’s time, once again, for politicians to wring their hands about Roe v. Wade. A 2003 email from Judge Kavanaugh, then working in the executive branch, has surfaced in which he was asked if lawyers should regard Roe as “settled law.” “I am not sure that all legal scholars refer to Roe as the settled law of the land at the Supreme Court level,” he wrote.
As an historian I am not sure what, exactly, the term “settled law” means since history seems to demonstrate that no precedent is beyond challenge. Rather than asking if Roe v. Wade is, somehow, “settled,” we should ask if it is good law. As a constitutional matter, that it very much open for debate. We can do better. We should not settle for Roe.
To understand the problem with Roe we have to consider it from a different perspective than the usual one. The question is not “should abortion be legal,” or even, perhaps “under what conditions should it be legal.” The question is who should decide such questions. If we believe that we are “created equal,” then abortion is, in America in 2018 at least, an issue on which “we the people” ought to be able to legislate.
Just about everyone agrees that abortion involves conflicting rights claims—between a woman and a gestating baby. Supporters of legal abortion like to simplify their argument as a defense of “a woman’s right to control her body.” Yet except for a few fanatics, such as Professor Peter Singer of Princeton, who goes so far as to assert that one may even kill a child after it has been born with no moral qualms, everyone recognizes that there are two persons involved. Almost everyone concedes that, barring serious health concerns, abortion ought not to be legal late in a pregnancy.
Most Americans believe abortion should be, as a general rule, prohibited after three months. That would be a common international standard. In France, for example, it is legal at will only for twelve weeks, after that it is legal only is two doctors agree that bringing the baby to term would have serious health consequences. In the U.S., by contrast, late term abortion is, in law, much easier to obtain.
Brain waves begin at roughly day forty. That might square with the idea of a “person” being present once there is a functioning brain that has the potential for consciousness. Basic biology suggests that a baby is an embryo for eight weeks and a fetus for the remaining seven months of pregnancy. That would seem to be a plausible line. The “pro-life” view is that life begins at conception (a unique life with human DNA exists at conception. To kill it is to take a human life.) Many Americans disagree. Many who consider themselves “pro-choice” would suggest that when the baby is viable outside the womb it should enjoy legal protection.
In short, the question, as everyone who is not an intellectual or a fanatic concedes, is about competing rights claims of gestating baby and the woman who is carrying that baby. Alternatively, we might say the debate is about at what point in development a baby rightfully deserves legal protection. The question is, therefore, precisely the kind of question that, in a democratic republic, belongs to “we the people.” When the issue is how one person should life his or her own life, or how they ought to associate with others, our republican premises suggest we should, as a rule, trust individuals. But when we’re talking about the life and death of another person, there is obviously, a case where the law might be involved.
To understand why this issue belongs to “we the people,” acting in our legislative capacity, it might help to ponder the question of human equality. As little reflection shows that if we take seriously the proposition that we are created equal, then this issue is one that belongs in the political arena.
In what sense are we equal? The founders wrestled with that question. It is certainly not in talent, in aptitude, or in other such things. John Adams, who never used one example when fifteen would do, put the question this way, “But what are we to understand here by equality? Are the citizens to be all of the same age, sex, size, strength, stature, activity, courage, hardiness, industry, patience, ingenuity, wealth, knowledge, fame, wit, temperance, constancy, and wisdom? Was there, or will there ever be, a nation, whose individuals were all equal, in natural and acquired qualities, in virtues, talents, and riches? The answer of all mankind must be in the negative.”
How, then are we equal? We are equal in the right to make moral judgments or “to pursue happiness,” as the Declaration puts it. That’s why Adams wrote in the Spring of 1776, “the happiness of man, as well as his dignity, consists in virtue.” And Washington reminded us in his first Inaugural Address, “there is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness.” We cannot be happy, we cannot pursue virtue, unless we are free to manage our own affairs.
Equal citizens cannot abdicate the responsibility to think seriously about the great questions of right and wrong. But we humans are not isolated individuals. We tend to live in communities and those communities have laws. When it comes to making laws with regard to, say, the engineering standards for bridges, we are not equal. Most of us would be unable to do the math. But when deciding how to negotiate competing rights claims of two people, things are different. To deny that the average citizen can be trusted to participate in discussions about difficult moral questions, and to deny that such questions ought to be in the political arena, and have legislative consequences, is to point back to the world of aristocracy—where the “better sort,” academics, judges, or some other distinct class, have the right, even the duty, to tell the rest of us how to behave.
The brute fact underlying the argument here is a politically incorrect one. The same “Creator” who “endowed” us with our rights, created a human species that, to state the obvious, does not lay eggs. An embryo and then a fetus gestates inside an adult human being. As just about everyone agrees, at some point in time that fact becomes legally relevant. The question is who decides when that is the case.
In a famous passage, Thomas Jefferson quipped, “State a moral case to a ploughman & a professor. The former will decide it as well, & often better than the latter, because he has not been led astray by artificial rules.” Elsewhere, he noted that each of us has a “moral sense,” the ability to distinguish right from wrong. Of all peoples a republican one is the last kind which may assert that any class or group has a monopoly on virtue or the ability to make moral judgments. Aptitude for moral judgment, we presume, is distributed equally, or equally randomly across classes and professions. To deny that proposition is to assert that we the people are unfit for both liberty and for self-government. It points us back to the Old Word where, as Jefferson put it, “every man here must be either the hammer or the anvil.” Adams put it this way. Men are not to be “ridden like horses, fleeced like sheep.”
It is usually a bad idea simply trust one person with the choice regarding the life and death of another. As Madison noted in Federalist 10, “No man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” And women are no less (presumably no more) liable to take the easy way out, or to act in a self-interested manner than are men. We have checks and balances in our system because, as Madison noted in Federalist 51, we humans are not angels. We have a tendency to be self-interested, to take moral short-cuts, to trample on the rights of others if given the chance—as history documents so well.
John Adams put it this way: “It is weakness rather than wickedness, which renders men unfit to be trusted with unlimited power.” We are, he noted, prone to deceive ourselves, to mistake the convenient for the just and/or reasonable. Adams was quite willing to admit he might be the one who was deceiving himself when he emphasized the need for checks and balances: “I may be deceived as much as any of them, when I Say, that Power must never be trusted without a Check.” That is why the public has the right to regulate when and under what conditions abortion may be legal. It is the job of we the people, acting in our legislative capacity, to find answers to questions where rights claims come into conflict.
Because of the abomination that was Jim Crow, and some of the legal means that were, in the event, necessary to bring it to an end, we Americans have become all too comfortable with the proposition that moral issues are, ultimately, for the Supreme Court to decide. To take that case as the norm, rather than the exception, is to abdicate our rights and responsibilities as citizens. But few issues are Jim Crow. Abortion certainly is not. In 1973, the Supreme Court made the mistake of treating abortion as if it were such a case. The result has been the culture war.
A restoration of legislative rights to the people, might restore a measure of moderation to our politics. Only by having such discussions, often heated and even contentious, can we have the ability truly to get to know and understand our fellow citizens, and to recognize them as fellow citizens. Only then can we follow Lincoln’s advice that we act “With malice toward none” and “with charity for all.” By taking moral issues out of the political arena our Courts have allowed us no options other than shouting and community organizing. We don’t truly have to listen to the other side when the legislative power is null, for neither sides words have any practical impact.. The result is growing ugly. It is making us a nation of tribes.
Allowing us, forcing us, to work to pass legislation can open things up. The laws that result, perhaps, at least at first, fifty different sets of compromises, will satisfy few entirely, but only by restoring our legislative rights can we hope to be forced truly to listen to each other’s arguments and forge the compromises that can steer us away from Civil War. Once we begin to resurrect our legislative rights, then we can begin to focus on what answers to the moral debates of our times are themselves most congruent with the proposition that all men are created equal.