At this particular point in the election season, undecided voters are a puzzlement. They have all the information to make a choice between two candidates bearing little resemblance to Tweedle-dee and Tweedle-dum. They may not have the judgment to go with it. Not long ago, an NPR program interviewed undecided voters. One could not make up his mind between his disapproval of Trump’s authoritarianism and his approval of Trump’s anti-abortionism. I cannot compute any equivalence between democracy and the welfare of hundreds of millions in this country alone, and a matter controversial for decades, seemingly unresolvable forever, yet affecting a small fraction of the population.
Obviously, others think and feel differently. I can understand that they loathe the idea of terminating their pregnancy, but I cannot understand that they loathe the idea of others’ terminating their pregnancy. I find their impulse to intervene in others’ lives as repugnant as they find abortion. I hate their moral imperialism. I hate their arrogance in using the legal system to impose their beliefs on others in a country presumably as committed to liberty as to life. “Give me liberty or give me death,” Patrick Henry once famously said. I hate their ignorance about the history of diverse beliefs and practices which are part of the issue of abortion. And I hate the misogyny of women as well as men seeking to control women’s bodies.
Amy Coney Barrett may be one such woman; we shall soon find out. She may be as ideological as Trump and Republicans hope and everyone else fears. But I am not going to demonize her because of my concerns about her jurisprudence. I take some comfort in the respect which she gets from all quarters. If she is as thoughtful as her colleagues say that she is, I expect her to square the circle of her views on precedent and abortion.
Let me begin with a few remarks about Judge Harry Blackmun’s majority opinion in Roe v. Wade. First, most people concerned with the abortion issue have not read it. As a result, those who advocate abortion rights and support his opinion, modified by later court decisions, are ignorant of its flaws. Yet they need to know them to develop a replacement if Roe v. Wade continues to be undermined or is overturned. Second, many legal scholars on both sides of the issue have long criticized his opinion as poorly reasoned. Barrett is not alone in criticizing it as a miscarriage of legal thinking.
Blackmun’s opinion makes three radical mistakes. The first one is its failure to draw the obvious inference from his historical summary of diverse moral, philosophical, and religious beliefs and practices about life and abortion. Blackmun says that the Court cannot do what moralists, philosophers, and theologians cannot do, namely, define the beginning of life. But he fails to see that beliefs and practices about life and abortion are religious beliefs and practices, and are or should be protected by the First Amendment.
The second radical mistake is its belief that science, with knowledge about gestation and viability, can provide a neutral, objective, and operational rule of thumb to guide decisions on abortion. Blackmun does not know that science cannot answer or supplant religious beliefs and practices, and that any stipulated legal rule, scientific or not, would violate the religious beliefs and practices of those whose religious beliefs and practices do not align with it.
The third radical mistake is its acceptance of arguments that abortion rights emanate from the words and wording of sundry Constitutional articles. These “penumbras,” or shadows, are visual metaphors to which critics, not all “originalists,” respond by saying, in effect, that they are in the eye of the beholder, not in the text of the Constitution.
Although I am a left-leaning Independent, I am less alarmed than left-leaning media would have me be on two subjects on Barrett’s views on precedent and abortion. Barrett recognizes the importance of legal stability and continuity which the principle of stare decisis (let it stand) reinforces. She also recognizes the importance of correcting flawed precedents or creating new precedents to accommodate changes. On this point, she agrees with the justice whom she replaces. As shown in “On the Basis of Sex,” Ruth Bader Ginsburg argues against precedent when it no longer addresses current conditions. “We’re not asking you to change the country; that’s already happened without any court’s permission. We’re asking you to protect the right of the country to change.”
Though both Ginsburg and Barrett would depart from precedent to support change, the difference between them is one of direction. Ginsburg looked forward and worked for the evolution and expansion of rights for all. Barrett looks backward and works for the regression and contraction of rights for some. Her legal doctrine of originalism looks primarily to the Constitution and the Bill of Rights, secondarily to the dozen and a half amendments since 1791. It implies that those who drafted and ratified the Constitution and Bill of Right possessed a wisdom which those living after them in quite different conditions and circumstances do not have and cannot achieve.
One question is how Barrett conceives of the law’s relationship to society if the Court reverses long-established legal positions. If she wishes to reverse precedents and the trajectory of law which they have described and to attempt to restore past arrangements, she must persuade the public that the law should not accommodate changing conditions and circumstances. She is not likely to succeed. Item: federal and state laws have been moving to eliminate barriers of race, gender, sexual orientation, physical handicap, and the like and advancing full rights of all citizens. It makes neither social nor humane sense to use the law to re-erect those barriers—dissolve marriages, disrupt families, discharge employees, etc.—on an originalist understanding of the law as conditioned by custom and culture in late eighteenth-century America. Were it not for the “Civil War Amendments,” Barrett’s originalism would imply legal permission to resume slavery and revert to a fractional value of black lives.
Another question is whether Barrett acknowledges and respects non-Catholic moral and religious beliefs and practices. Item: arguments about abortion hinge on definitions: what is human life and when does it begin. Her Catholic belief is that life begins at conception. That religious belief conflicts with her legal originalist philosophy. For an originalist position must admit that, back in that day, Christians thought that life begins at quickening or birth, and Jews thought (and still think) that it begins at birth. So there is nothing “originalist” about the belief that life begins at conception.
If Barrett is as honest about her legal philosophy and her religion as she wants us to believe, she could vote in good conscience against the defective Roe v. Wade precedent. And, if so, she would propose or support an opinion recognizing abortion as a religious matter entitled to protection by First Amendment provisions for freedom of, and from an establishment of, religion. But these hypotheticals assume a rational consistency in a nominee whose legal and religious commitments are conflicted.
No comments:
Post a Comment