"An Originalist Victory"

 From City Journal

Roe v. Wade and Planned Parenthood v. Casey are no more. Like Plessy v. Ferguson before them, Roe and Casey were constitutionally and morally indefensible from the day they were decided, yet they endured for generations, becoming the foundation of a mass political movement that did all it could to prevent their overruling. Thus, like the overruling of Plessy, the overruling of Roe and Casey was by no means inevitable; it was the result of a half-century of disciplined, persistent, and prudent political, legal, and religious effort. The victory in Dobbs v. Jackson Women’s Health Organization was earned by the coalition of teachers and students, priests and parishioners, lawyers and politicians, who, through efforts as humble as parish potlucks and as prominent as federal litigation, brought about the most important legal and human rights achievement in America since Brown v. Board of Education.

The analogy I would have thought more proper is to Dred Scott. The twin abortion decisions adopted a similar logic, after all: that there was a class of human beings, X, whose rights or interests another class of human beings, Y, did not have to respect. Rather, Y as a class was entitled to dispose of a member of X in whom they stood in the right kind of ownership relation in order to further their own interests. "My body, my choice" as a slogan disposes of the idea that there is another body to be considered, or another being: it asserts that only the one kind of being really exists or really matters.

All my life I have heard versions of the argument that only women should really be consulted about abortion: "No uterus, no opinion." Yet to accept this is to make a core philosophical error, one warned against since at least Aristotle: no one should serve as the judge in their own case. Women are of course very deeply interested in the disposition of this question of abortion rights. It is that very interest that makes it hard for them to render a just verdict, which by the nature of justice ought to be disinterested. The Viking-age hero Egil Skallagrimsson, offered the opportunity to judge in his own case, settled everything in favor of his family; here, everything was settled by class Y in the interest of class Y, and the interests of class X were completely obliterated. Abortion was acceptable all the way to the moment of birth, and arguments were increasingly being offered that it really ought to be acceptable even after. 

Now the matter remains unsettled, but it is at least open to the people -- all the people, and not only the interested class -- to debate and consider how to proceed. This seems to me to be right and proper. In this matter I have no more say than any other citizen; I can offer philosophical accounts of what seems right, but each of you will have to judge and vote and advocate accordingly. It will doubtless be done in ways I think wrong, as is usually true on every question, because democracy depends on a common opinion and the opinions of most people are not generally given to philosophical rigor. 

Yet at least it will be the common sense of communities that decides this question, and not that of an interested class or an elite among the judiciary. Perhaps few will prove to be truly disinterested; likely different communities will arrive at widely different judgments. Such is life. Justice is more likely, all the same, now that the matter is before the people broadly and not only the few.

10 comments:

  1. I recall that at least as of a decade ago, if only women were consulted about abortion the percentages for support and limitations would not change much. An Inconvenient Truth.

    I have decided that the captchas asking to find things in the photos are not regarding bits and edges as legit. The want the 3 o4 obvious ones only.

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  2. Are you having to fill out captchas here? I hate to hear that. I would certainly turn them off if I knew how, but I didn’t know they existed. I don’t have to fill them out to comment.

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  3. I don’t have to fill them out to comment.

    Well, that's obviously your Blogger Privilege.

    I get the captchas, too, here. What's interesting to me is that sometimes I have to check the three, or so, items called for, and other times I just get the green good-to-go check mark and my comment gets posted. I've seen no pattern to that.

    It's not the end of the world to do, and it discourages bots.

    Regarding your post, I like Justice Thomas' view of Supreme Court precedent, as he wrote in his Gamble v United States concurrence:

    In my view, the Court's typical formulation of the stare decisis standard does not comport with our judicial duty under Article III because it elevates demonstrably erroneous decisions [whosever view of erroneous, I add]…over the text of the Constitution and other duly enacted federal law.

    And [emphasis added]

    This view of stare decisis follows directly from the Constitution's supremacy over other sources of law—including our own precedents.

    By their nature, no precedent can be the final word, else we'd have neither Brown nor Citizens United nor Janus, and we'd have only war to which to resort regarding rulings like Dred Scott.

    Eric Hines

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  4. According to the settings page, captcha is turned off. I turned it on and off again in the hope that would reset it to the off position. Let me know.

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  5. Test to provoke a captcha

    Still got the captcha doofer, and on "proving," got the green check without proving anything.

    Eric Hines

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  6. The Wikipedia entry on the Dred Scott decision includes this which, with the appropriate wording changes, could well apply to the Roe v Wade decision:

    Although [Chief Justice]Taney and several other justices hoped the decision would permanently settle the slavery controversy, which was increasingly dividing the American public, the decision's effect was the opposite. Taney's majority opinion suited the slaveholding states, but was intensely decried in all the other states. The decision inflamed the national debate over slavery and deepened the divide...

    That last sentence ends "that led ultimately to the American Civil War." I sincerely hope that part of the description does not apply as well.

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  7. I don't think abortion will, by itself, lead to war. Slavery differed in that the entire economic system of the South was based upon it, while the North's was not. While there are also significant economic interests at stake for women who seek abortions, they are not nearly as fundamental to the whole economic order of society as was slavery to the Antebellum South's; and these women are distributed across the whole society, so that there is not an obvious regional split.

    However, when coupled with the other major divisions in our society on the most basic issues of right and wrong, good and evil, justice and injustice, it may be that this issue is one of the straws that breaks the camel's back. The Supreme Court is now being called illegitimate by much of the left; some of the center is arguing that SCOTUS justices who were confirmed with pledges to support precedent may have been deceptive and need to be impeached; and the right has reason to reject the Executive Branch and much of the legislature as illegitimate for reasons of its own.

    I don't know if there remains much of our institutions that enjoy broad confidence. I would have said 'the military' before the Afghanistan debacle and subsequent refusal to accept or enforce any responsibility; now all the branches are having enlistment troubles as young Americans reasonably doubt that service is a wise decision. I might have said 'the police' a few years ago, but between the Defund the Police movement on the left and the concerns about politicization of the DOJ on the right, I can't think that's true either.

    The Fire and Rescue Service, I guess, but that's local.

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  8. Anonymous9:01 AM

    Supreme Court has another opinion day that might lead to war.

    We are still waiting on West Virginia vs EPA, which could eliminate Congress’ ability to give the power to make law to agencies through regulatory authority. If that goes our way it will be like detonating a MOAB in the middle of a regulatory jungle. It will significantly reduce the size and scope of government, including ATF’s ability to declare things legal and not.

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    Replies
    1. Anonymous9:02 AM

      Greg wrote the above comment.

      Delete
  9. Agreed, Grim. As for WV vs EPA, I've said before that I would be happy to see a curtailment of Congress' ability to leave the pesky details up to unelected bureaucrats. Like Dobbs, however, such a decision would be de-stabilizing and instability is always a tricky place for a country and society to be.

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