It’s safe to say that all the nations fighting in the world wars of the last century – except the atheistic Soviet Union – did so convinced that God must be on their side. For Pagans, however, matters aren’t so simple, since we presume there will be Divinities on every side of every argument. In other words, good things – and Gods and Goddesses basically are good things – can, and do, come into conflict. Pagans aren’t inclined to see political issues in simplistic, Manichaean terms.
In my last blog posting, I noted that the American political system is founded on two notions that aren’t wholly compatible: (1) classical liberalism, which affirms that all human beings possess inalienable rights, and (2) democracy, which requires all political questions to be settled by a majority vote of the people. The difficulty, of course, simply is that a popular majority could trample on the rights of a minority. The Framers of the American Constitution were aware of the danger and did what they could to mitigate it. Still, it’s a problem that won’t go away.
In the United States, the function of identifying rights and protecting them from populistic damage is assigned to the courts, who do their best to interpret the relevant Constitutional phraseology. Because every assertion of a right diminishes the sphere of democratic decision-making, this is a crucial task. Yet the results often appear arbitrary. Here’s one particularly contentious example.
The 1971 Roe v. Wade decision of the U.S. Supreme Court stated that women have a Constitutional right to an abortion. The Constitution doesn’t, in fact, specifically say anything on abortion, so the Court derived this right from a woman’s more basic “right to privacy.” Yet there’s no right to privacy in the Constitution, either. So where was the Court coming from on this?
The Roe v. Wade ruling was based on the Ninth Amendment: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” In other words, Americans may have rights that aren’t listed in the Constitution, and if they do, those rights will be safeguarded.
In other words, the Supreme Court can call anything it wants to, a right.
The operative philosophy here is the theory of natural rights. That is, Americans don’t have rights because the Constitution says so. Every human being, automatically, intrinsically, has rights to life, liberty, and property – no matter what their government might say. Rights have been itemized in the Constitution merely to assist the courts in defending them. But what if a natural right has inadvertently been left off the list? In that case – as the Ninth Amendment makes clear – such a right will receive every bit as much protection as the rights that have been listed.
In the case of Roe v. Wade, the natural right to privacy had already been asserted in previous Supreme Court decisions, so the Court simply extended that right to cover abortion. The ruling was applauded by liberals – I’m now using the term in the current American political sense – who regarded it as an essential step in freeing women from patriarchal social controls, and in the achievement of gender equality. Considerations of human dignity require a woman to be in control of her own body, and the decisions regarding pregnancy should be hers alone. It’s entirely appropriate for this issue to be made a matter of right, not subject to the whims of voters.
That’s the liberal perception, anyhow.
Opponents of abortion – generally Christian conservatives – will see things very differently. In their view, the alleged right to privacy is a latter-day judicial invention, never contemplated by those who wrote the Constitution. And stretching this bogus legalism to apply to abortion is nothing more than a left-wing power grab. Abortion is murder, conservatives insist. Privacy concerns must yield to a higher morality – as the voters in many states, in fact, have recognized.
If Trump has a chance to make some more Supreme Court appointments, Roe v. Wade could possibly be overturned. Abortion could then become a completely political issue, as it was before 1971. The people would decide, on a state-by-state basis, whether to permit abortion, and how to regulate it. Majoritarian democracy would be enhanced, and we could expect to see a range of state policy choices.
This isn’t the outcome the right-to-life faction truly wants, however. Their real preference would be to engineer a judicial test of the contention that the Constitution creates an affirmative duty for the government to oppose abortion – an argument based on the requirement, in the Fifth and Fourteenth Amendments, that “no person shall … be deprived of life, liberty, or property, without due process of law.” Since life begins at conception, they’ll argue, the state must protect the unborn.
Were the Supreme Court to make such a ruling, I’d expect liberals to object that the authors of those Amendments never meant for their words to apply to fetuses, and also that voters in California and Massachusetts should be able to permit legal abortion if they want to. And I wouldn’t be surprised to hear conservatives responding that the Constitution is a living document that must be interpreted in light of the evolving moral standards of a nation that has “woke” to the evils of abortion.
And nobody would detect anything ironic here.
Blessed be.
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