There is a lot of discussion in conservative circles of candidates’ position on abortion. This is in keeping with the two-front strategy conservatives have adopted over the last thirty-five years, since the odious 1973 “Roe v Wade” decision (which has been accepted by all major players in the debate as de jure forbidding states to regard abortion as criminal). The two prongs are (1) attempting to amend the Constitution, and (2) attempting to pack the court with men that would rule the right way. Both of these fronts have failed. The Christian Right, including the Reformed Incrementalists, still think we must vote Republican in order to accomplish (2). And the Republican Party dutifully put advocacy of (1) into its platform again this year. That nobody except the politicos that influence the writing of them reads or discusses Party Platforms any more is perhaps a reason the GOP sees no problem with sticking such a plank into its back-stage scaffolding.
Both of these tactics fail to realize the true nature of the problem. Indeed, success in either one would actually ensure long-term failure. In this post I will explain the problem with (1), the “human life amendment.” There are two reasons why this is misdirected.
1. Criminal law dealing with “ordinary” crimes such as theft and murder have always been the original jurisdiction of states. That the Burger Court was willing to interfere in this was not so much unconstitutional as a-constitutional. Of course, the Tenth Amendment makes clear that that which is a-constitutional is, for the National Government, eo ipso unconstitutional; but it is important to get the logical order right. By passing a “human life” amendment, conservatives would actually be ratifying this usurpation. The Constitution would then be put into a form such that the Supremes would no longer be a-constitutional. We would play right into their hands. The principle that the National Government has jurisdiction over ordinary criminal law would be written, not just usurped. Instead, the response should have been along the lines that I will outline in a future post.
2. The amendment-solution assumes that the “problem” is an inherent ambiguity in language which can be corrected by cleaning up the language. As if the hands of the justices were tied by some difficulty of the text; they had no choice but to rule one way or the other; we can help them by putting in more explicit words.
But this is clearly not the problem. For nearly two centuries, intelligent men of both the Right and Left had read the Constitution, and no one had discerned the slightest hint that states would be prohibited, as a condition for joining the American union, from outlawing abortion.
The Burger Court did not emerge from a vacuum. It emerged in continuity with the Warren Court, which was a not unimportant player in the American revolution of the 1960’s. The problem was not running astray here and there in a laudable attempt to find the “deeper meaning” of the words of the contract between States known as the U. S. Constitution. Instead, the problem is that they are not tethered to the meaning of words at all. They will find a way to parse any words whatsoever such as to support their agenda. This can be illustrated more clearly by reference to the other major problem today directly involved with morality, homosexual “marriage.”
Suppose the “marriage amendment” were to be ratified. Would this slow down the juggernaut of the left for homosexual marriage?
Of course not. By saying, “marriage is between one man and one woman,” we would be trying to define a concept which is primary. That’s what marriage is; if you have to define it, you have already lost the battle.
“What is a man really, and what is a woman, really?” would be the question. The passive party in the homosexual relationship would simply be defined as the legal “woman.” “After all, surely you are not saying that biology is destiny. The existentialists already exploded that notion. You reactionaries are really throwbacks to the Middle Ages.”
Our naive conservatives would, I suppose, respond to Clinton’s “it depends on what the meaning of ‘is’ is” by suggesting an amendment to define the meaning of “is.”
How can you do that without using the word?
When the discussion reaches this level, the game is over.
The very existence and function of a Constitution only makes sense when you have Christian gentlemen, or gentlemen willing to think and act as if they were Christians, that presuppose a vast domain of fixed meaning, in terms of which an arrangement distributing jurisdiction can be refined and spelled out.
The actions of the Supremes have shown that this is not the case any more. It is over.
When you are dealing with a liar that holds the bigger gun, a written document is completely useless.
At this point, you can either acquiesce as slave, whereby the establishment parties can give or take whatever they want, or you can take up arms. The one thing you can no longer do is argue about semantics. The “written document” is no longer in play at all. A written document only makes sense to argue over if everyone is basically honest and using language the same way, and intends to stick by his word.
An amendment to the Constitution misdiagnoses what the problem was. The other prong of the attack is to think that by getting “good men” on the Court, we can recover what was lost. Exploding that idea will be the burden of my next post on this subject.