Counterrevolutionary Meditations

I will not make so bold as to venture any predictions as to the future of the abortion issue in American politics. Well, not quite. I am, being a pessimistic sort of person, skeptical that all of the efforts of conservatives and pro-lifers to secure the nomination of certain types of jurists to the courts will eventuate in the results we expect - or merely hope. The law is a complicated thing - perhaps unnecessarily so, yet necessarily unnecessary, if my meaning may be grasped - filled with many idols. Public opinion is an uncertain thing, manifesting movement away from the sacred totem of Roe yet seemingly unbending in its attachment to unprincipled exceptions, such as those for rape and incest. Public opinion, alas, appears favourable towards that grim, Moloch-like (Because it combines the elements of both sacrifice and commerce, in which the Phoenicians excelled.) research involving the destruction of embryonic life, on forthrightly utilitarian grounds; and that research is an article of religion among its advocates largely because in its presuppositions, externalities, and ambitions, it reposes upon the substrate of the abortion culture. Inconstancy, thy name is democracy.

Even so, I am willing to allow the optimists their due. In an essay published in the inaugural edition of The Critical this past Summer, The Abortion Moment (I, alas, cannot recall whether or where Ben may have posted this piece online..), Ben Domenech discusses the positive movement registered by recent polling on the subject, and the increasingly strident - and ghoulishly off-putting - rhetoric of the party of death, and writes:

The Abortion Moment is coming. It is almost upon us. And it has a great deal more to do with the Elizabeth Andersons (a young women whose mother Ben’s mother dissuaded from having an abortion sixteen years ago) of the world, the members of a generation who could just as easily not exist, than it does with courts and lawyers and C-SPAN cameras.

Should those inclined to a more optimistic assessment of the prospects of the pro-life cause be proven correct, I think that this will be the reason, that a great, subterranean shift in public opinion and sentiment will have be wrought over the years, and that this body of opinion will not forever be denied public expression in the law. And yet, one can enumerate all too many issues in our public life on which the preponderance of public opinion fails to move the political class to corresponding action. The moment for pointed political and legal advocacy has not yet passed.

In this vein, writing in the October issue of First Things, Hadley Arkes provides a synopsis of the legal background to, and potential outcomes of, the current challenge to the constitutionality of the federal partial-birth abortion ban, a ruling on which is pending. However, in the course of his disquisition, towards the end of a consideration of the potentially pivotal role of Justice Thomas in the eventual decision of the Court, Arkes delivers himself of the following precis of the attempt, on the part of some scholars within the pro-life ranks, to ground the pro-life argument in the logic of the Constitution:

Some of us in the pro-life ranks have sought to make an argument that runds back to the axioms of the Constitution and the separation of powers. It involves a slight reworking of an argument offered by Chief Justice John Marshall in Cohens v. Virginia (1821), and it may be condensed in this way: if the Supreme Court can articulate new rights under the Constitution - if it can find, in the Fourteenth Amendment, the right to an abortion - then th legislative branch must be able to act on the same clause in the Constitution in vindicating those same rights. And in filling them out, it may also mark their limits. Congress could plausibly say, for example, that whatever was established in Roe v. Wade, a right to abortion could never be taken to mean a freedom to kill a child at the very point of birth. What cannot be tenable, under the logic of this Constitution, is that the Court can articulate new rights - and the assign to itself a monopoly of the legislative power in shaping those rights.

If, I say, this is the legal and philosophical foundation of our argument against the abortion regime, we would be well advised to raise the white flag and adopt a stance of quietism on this momentous question, for this argument concedes everything of consequence to a usurpative judiciary, only to receive a rich recompense of political failure. The adoption of this argumentative strategy is unlikely to have offspring other than failure, on grounds both structural and, let it be said, mythological.

In precisely what sense this argument is a ’slight reworking’ of an argument advanced by Chief Justice Marshall in a case summarized as concerning the jurisdiction of the Supreme Court to review the proceedings of state criminal cases is a matter best left to lawyers and legal historians. What is salient insofar as the argument is invoked by pro-life advocates is that it is intended as a regrounding of the discourse surrounding a controverted subject in the foundational logic of the Constitution. How, though, can the discourse on the subject of abortion be brought back to the fundamentals of the Constitution when, by the nature of the case, the original act whereby abortion was constitutionalized was itself a corruption of the Constitution, an exercise, as anyone who has ever troubled to read Roe and the cases upon which it built, particularly Griswold, will recognize, in rank textual conjuration? If the Supreme Court can articulate new rights under the Constitution… - if, that is, the Supreme Court may arrogate to itself rights reserved to the people, namely, the right to amend the Constitution and to specify rights to be accorded protection thereunder, by acting through state and federal legislative bodies in accordance with a procedure detailed in the Constitution itself - then the legislative branch must be able to act on the same clause in the Constitution in vindicating those same rights, which, of course, do not actually exist under the actual Constitution, as indicated by the adjective, new, which is applied to them. The reason that the legislature must be permitted a role in vindicating and delimiting the grand conjurations of shifting majorities of the robed eminences of the Supreme Court is, of course, the separation of powers; without such a role for the legislature in acting upon the same clauses in the Constitution - upon which, strictly speaking, the Court, in the type of rulings here at issue, has not acted, inasmuch as the clauses of the Constitution possess determinate meanings which the Court violates in positing new, as in novel and hitherto unknown, rights - the Supreme Court becomes a de facto superlegislature, a privy council wielding as absolute a power as is conceivable under our system behind the facade of republican forms.

The argument from the sepration of powers possesses a certain plausibility: surely, it cannot be that under our system of government, an unelected body of jurists with life tenure should exercise any final authority over the meaning of our fundamental law; and so, as a matter of fidelity to the ‘logic’ of the Constitution, the legislature must be able to check the actions of that body. Nevertheless, the argument places the form of a government characterized by the separation of powers before the substance of the law, the process of intragovernmental balancing before the Constitution itself. For the argument invites us to accept the proposition that, under that Constitution, a Supreme Court which has purposed to violate the Constitution and exceed its own authority under the Constitution in order to vindicate rights not identified as such in that document, must, by the nature of the Constitutional system itself, accept limitations imposed upon the perpetuation of that violation by the legislature. That is to say, the argument asks us to accept that it is of the character of a usurpation of authority under the Constitution that it must be limited by the Constitution itself. Which, of course, is to say no more than that the Court, having exceeded its entrusted authority, must limit its illigitimate power when the legislature acts to place limits upon the usurpations of the Court, particularly when cases challenging the authority of the legislature so to act come before the Court. Succinctly stated, it is to say that a Court which acts as though there exist no limits upon its authority must yield to a countervailing authority, merely because it “must” observe the constitutional forms it has already purposed to violate. Which is to pass perilously close to speaking gibberish in the form of mere wishes and hopes.

This is the structural, logical flaw in what is proposed as the basis of much pro-life advocacy. It is a concession of the power, if nothing else, of the Court to alter the rules of the game, and an acceptance of those unjustly revised rules as the new groundrules going forward. Why, though, would a Court bent upon changing the rules, acting beyond the scope of its constitutional prerogatives, willingly limit itself merely because another branch of government has made utterance of its objections? There is another flaw, however, and it concerns the mythos which has been built up around the Court over the generations since the Second World War. That mythos depicts the Court as the guarantor of liberty, the protector of the rights of the people always liable to be trampled by factional passions expressed through the legislature, and it appeals to its great, dramatic narratives of redemption, beginning with cases such as Brown, which all but the staunchest of reactionaries accepts as legitimate. That mythos is not something that can be dislodged by talk of the separation of powers, for the myth itself posits, or at least presupposes, that the Court found it necessary to, ahem, fudge the separation of powers and the authority of the states in order to vindicate the rights of the people; and I would venture that the hold of this myth upon the public mind is stronger than many activists have reckoned. In fact, so deeply lodged in the public mind is this myth that even those who execrate certain of the rulings of the Court still hope to appeal to the Court to limit the scope of its rulings upon a number of controverted issues. They are asking the Court to limit its performance of a role with which the people are quite comfortable, generally speaking. The question of the Congress limiting jurisdiction seldom arises, and when it does, it is seldom accorded more than perfunctory attention. Still less does the possibility of declaring a naked act of usurpation null and void, and declining to carry it into effect.

Finally, there is the practical matter of the vast and metasticizing body of law and precedent, which ramifies throughout the system, and our society, in ways far more complex in the cases of privacy than we are likely willing to admit. Pro-life strategy has emphasized the nomination of a certain type of jurist to the Court, and it is at least plausible that jurists of that stripe might be disinclined to undertake the radical pruning of putrefying precedents necessary to any restoration of the meaning of the Constitution and the separation of powers. As Arkes observes at the conclusion of his essay,

…it has been confirmed now, in the circles of conservatives, that judges will show their fitness as judges by honoring a notion of law utterly detached from substantive judgments of right and wrong. The voters who have backed two Bushes and Reagan, expecting something dramatically different, may discover once again that the judicial world is fixed in a mold that will persistently break their hearts.

Asking the Court to accept real limitations upon its authority in areas of law where its precedents are long established and implicated in thousands of other cases and lesser precedents is perhaps to demand a bit much in the way of the requisite iconoclasm. Is it easier, in the long run, to play a game which depends upon persuading the Court to limit itself, or simply to defy the Court? The pro-life movement has gambled on the former; where the payoff is incalculable, but the probability of success all but imperceptible.