When it comes to political argument, you can usually count on abortion to get a response, and it seems that Why We Marched (GT 2004/05/30) was no exception to the trend. Fortunately, unlike most of the
responses that you usually expect to draw by writing on abortion, the responses to my article were thoughtful, carefully argued, and deserve consideration and reply. (I think this just goes to show that pessimism about conversation on abortion is understandable but overly hasty. The problem is not that rational argument on the topic is impossible—just that it is very hard; not that people can’t talk reasonably about it, but rather that they don’t. Here, even more than in other areas, it’s vitally important to elicit just what the structure of the arguments is, and I hope I’ve helped a bit in that direction.)
After reading over my post again, and seeing how the responses sorted themselves out, I do think that I didn’t do nearly as good a job as I should have in marking out the two different purposes that I had in the post—the fact that it had two different purposes, that is; if you got that, then I think what they were is pretty easy to discern. This is important, because I think some of the critical replies to my post seemed to muddle the two different issues together, and I think that muddling allowed people to endorse claims for abortion that they would be hesitant—or, at least ought to be hesitant—about endorsing in other areas.
Well, what were the two points being made? To wit:
… that arguments against pro-choice political strategy as anti-democratic (by
judicial tyrannyin Roe v. Wade-style court decisions as a means to repeal abortion laws) are question-begging: if the basic pro-choice position is correct, then it would be
judicial activismto uphold an abortion bill—because there could be no such thing as a (legimately enacted) law to ban abortion.
… that the basic pro-choice position is in fact both reasonable and correct—and thus that courts do have an obligation to throw out abortion bills.
Both of these points are connected with the deductive argument that I gave in defense of Roe-style court decisions:
- No government body has the legitimate authority to legalize slavery. (premise)
- A legislature can only successfully make a law if they have the legitimate authority to enact that law. (premise)
- Courts can only enforce such laws as have successfully been made by the legislature. (premise)
- Forcing a woman to carry a pregnancy to term against her will is a form of slavery. (premise)
- Courts can only enforce bills that the legislature has the legitimate authority to enact (from 2, 3)
- Courts cannot enforce bills that purport to legalize slavery (from 1, 5)
- Courts cannot enforce bills that purport to legalize forcing a woman to carry a pregnancy to term against her will. (from 4, 6)
Therefore, no court can rightly uphold, or make a ruling based on, a law that purports to criminalize abortion. Q.E.D.
The first point that I was defending (which I had already argued at some length in my comments at Alas, A Blog) is that this argument is valid, and that all of the premises other than (4) are not only eminently reasonable, but also premises that you have to endorse in order to take
judicial activism seriously as a term of critique. And what that means is that if (4) is true, you ought to endorse the conclusion; thus, whether premise (4) is true or not, it is the real issue in the debate. If (4) is accepted, then upholding state abortion bills, not overturning them, would be an act of judicial activism (since no such laws could legitimately have been made by the state legislature). Even if (4) is denied, a charge of
judicial activism against pro-choice political methods without an independent argument against pro-choice political goals just begs the question against the pro-choice
position—much like trying to give a Christian an argument that Christian doctrines stifle social reform, without first showing her that quietistic doctrines are false.
The second point that I was defending, enlarging on the first, is that the argument is not only valid but also sound: not only are premises (1)-(3) true, but so is premise (4) (because a woman has the right to control her own internal organs—yes, even the reproductive ones—and that right cannot be undermined by someone else’s need to use them). It’s important to see here that you can
(indeed, should) accept the first point even if you don’t buy my defense of the second point. If you’re unconvinced by my argument in defense of (4), and remain unconvinced after my clarifications and emendations here, fine—but don’t keep basing your arguments on claims about
judicial tyranny (or, mutatis mutandis, principles of democracy, federalism, etc.). The
real action is in the debate over premise (4).
Well, just saying that you should accept the first point is not the same as demonstrating it, and apparently some of my interlocutors aren’t yet ready to buy in. Thus, for example, Otto Kerner wrote:
Charles, the flaw in your QED is in an implicit assumption that it is relevant to Roe. It is not. The US Supreme Court has no business enforcing or not enforcing state laws, except in a few specific cases. It was acting outside of its jurisdiction.
The question, of course, is why the Supreme Court has no business upholding or nullifying state laws; and there are a few different reasons that you might hold that. You might, for example, base it on a view of the powers delegated by the United States Constitution; or maybe on a prior notion of state sovereignty (perhaps as recognized by the Constitution); or on a strategic concern for political decentralization. Far be it from me to impute an argument to Otto without his consent—but since I’ll discuss the decentralist concerns in greater detail below I’ll take a moment to deal with the Constitutional claim here whether that’s Otto’s claim or not.
Now, I don’t recognize the authority of the U.S. Constitution in the first place; but since most people seem to think it matters, we can set aside my views on the nature of legal authority for the moment for a bit of immanent critique. The first of the common-sense premises I introduced for my argument was (1) that no government body has the legitimate authority to legalize slavery. I think that (1) is always and everywhere true, under principles of natural law. But whether I’m right about that or not, it’s certainly true of governing bodies if they derive their authority from the United States Constitution—since that reads, in part:
Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate legislation.
Note that it says
within the United States, or any place subject to their jurisdiction; if that doesn’t make state slavery bills the Feds’ concern, I don’t know what could. So if the Supreme Court were ever to hear a case concerning a state bill that purported to legalize slavery, what possible basis could it have for devolving the issue to state courts rather than applying the clear text of the federal Constitution? (Again, since under the Thirteenth
Amendment no state legislature can have the authority to make a law that authorizes slavery, it follows that any bill that a state legislature passed to that effect would not be a law; it’s a dead letter just as surely as some “bill” that I wrote on a napkin and passed around to my friends. Thus, any Court which upheld the bill would, in fact, be engaging in an astonishing act of judicial activism, since it is purporting to effect a law where no law had
been made by the legislature.)
Of course, this leaves open an additional question (which, I suppose, Otto is right to chide me on) of whether the Supreme Court should hear these cases in the first place. But I can hardly see any way that one could argue that (given the scope of the Thirteenth Amendment) a case over a state slavery bill would not be within the category of
cases, in law and equity, arising under this Constitution (Article III).
Of course, you might argue that forced childbearing is not slavery. You might even think it’s outrageous to even compare the two. But if so, your issue is with premise (4), not with the other premises. (Acid test: would you say the same thing if, say, South Carolina’s legislature were to pass a bill authorizing the enslavement of all Blacks, and the Supreme Court proceeded to strike it down? If you would, you’re nuts. If you wouldn’t, your problem is with (4) alone.)
You might also give me a thwack on the noggin and point out that the Court did not base its decision, in Roe, on the Thirteenth Amendment. True; and that’s too bad, because I think the reasoning would have been much stronger and the ruling much better if they had relied on the Thirteenth Amendment rather than on
privacy rights that Griswold claimed to find hanging out in the penumbra of various parts of the Bill of Rights. But you can defend the outcome of a Court case (and the fact that it was decided by the Court) without defending the reasoning behind that outcome. And besides, aren’t the rights protected in the Bill of Rights also the U.S. Supreme Court’s concern (mutatis, mutandis), under the Fourteenth Amendment’s provision that
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States? (If not, then what in the world does that provision do?)
the decision allows the judiciary to literally create rights out of thin air — that in the end, creating a right to privacy and having an institution that is allowed to do this will be destructive of liberty. It isn’t that many libertarians think that abortion should be illegal. It’s that Roe should be repealed and the battle fought in a different way. That’s the reason I’m against Roe; it increases statism by centralizing power.
Now, I don’t doubt that this is an argument against Roe, but I have trouble understanding it as a libertarian argument. I take it to be absolutely vital to libertarianism (as a theory of justice, not as a region on the Nolan Chart) that rights can be recognized or ignored, respected or violated, but they cannot be created or destroyed by anyone—not by judges, not by legislatures, not by executives, and not by constitutions either. A corollary of this is that when a piece of jurisprudence claims to recognize a right, the important question to ask is not whether the judge has the authority to make or unmake the right (no-one does), but rather whether the judge’s claims are true or false. Do you think that a woman’s right to control her own body includes the right to seek an abortion? If so, then you think Roe was rightly decided (although perhaps for the wrong reasons). And if you think that Roe recognizes a legitimate right, then what’s the problem with enforcing it?
That’s not to say that there’s no legitimate issue worth raising here: aside from the question of whether defending Roe is just, there is also the question of whether defending Roe is prudent. As I’ve argued elsewhere (concerning the Violence Against Women Act), it’s perfectly reasonable to be concerned about the strategic value of vesting our hopes in the tender mercies of a highly centralized federal court. It’s something worth worrying about on libertarian grounds—and, for that matter,
on radical feminist grounds too (anyone who thinks that a bunch of old white dudes with black robes and government pensions are the source of, or a reliable bulwark for, women’s liberation needs to get their head checked). But I think it’s no less foolish to put our hopes in highly centralized state courts, or state legislatures. When it comes to matters of strategy in playing the two off one another, we have to ask ourselves which of these pompous outlaw gangs is likely to commit or sanction fewer rights violations in the long run? I think any honest appraisal of the past couple centuries of American history has to show that the answer is
Well, it depends. Reactionary states have been the primary agents of tyranny no less than the Feds (see: Crow, Jim; see also: race slavery), and choosing which to side with in a conflict is not something to which I think there is any good answer other than ad hockery based on historical precedent. And if we look at the history of cases decided under the Supreme Court’s doctrine of
privacy rights, I have to say that the record looks pretty positive: Griswold (1965) abolished state laws banning married couples from obtaining contraceptives, Eisenstadt v. Baird (1972) struck down all state laws banning consenting adults from obtaining
contraceptives from a doctor, Roe (1973) nullified most state abortion laws, and Lawrence (2003) did away with state sodomy laws. If you’re pro-choice (mildly or otherwise) and libertarian, that looks like a pretty solid record!
Broadly speaking, it’s very difficult for me to understand the charge that the Court’s
privacy doctrine is a harbinger of statism. Whatever the hell the penumbral right of
privacy is supposed to mean (and I’m not at all clear on this myself), it is certainly privacy from government interference. It’s no accident that every landmark ruling on the doctrine has curtailed the power of government over the individual rather than enlarged it. How, exactly, is a ruling based on such a principle, even such an admittedly vague one, supposed to give the State more power over people’s day to day lives?
Now, again, I suspect that a lot of the worry that seems to be directed against premises (1)-(3) actually has more to do with discomfort with (4)—and with my failure to adequately put asunder the two questions in my last post. If forced childbearing is slavery, then how could we possibly let the modest rhetorical gains that statism might make in delivering a Supreme Court decision outweigh the massive victory for women’s freedom from government control over their own bodies that the abolition of state abortion bills wins? If, on the other hand, you’re not willing to defend the rightness of the Roe decision, isn’t that just an indicator that you think forced childbearing is different from slavery in some salient respect?
What about the second point of my post—that premise (4) is true, and so that the argument for defending Roe (or similar court rulings) is sound? Well, there’s plenty to say about that, too—but not, alas, tonight. I hope, for now, that I’ve cleared the ground for approaching what I take to be the real issue in the debate.
For further reading
- GT 2004/02/05: Because of assholes like this guy… — the decentralist justice case for VAWA
- In a Blog’s Stead 2004/08/26: The Stone Idol — Roderick Long on ex-Chief Justice Roy Moore his battle against Federal jurisdiction
- In a Blog’s Stead 2004/06/26: The Constitution of Liberty — Roderick Long on the Lawrence decision
(Standard disclaimer: People other than myself may or may not agree with everything I have to say here; and while they certainly ought to, my act of linking shouldn’t be taken as a claim in either direction.)