I was at my wife's grandmother's
place in New York when I saw a news flash on my phone that Roe vs. Wade had
been overturned. Even as I had been expecting this result ever since the
opinion leak, this still came as a shock to me. Throughout my life, Roe was one
of those facts about American political life. Yes, Republicans dreamed of getting rid of Roe, but there was no way it could actually happen. As someone who has moved
around a fair bit along the choice vs. life spectrum over the course of my
lifetime, I have long found the passions aroused by abortion to be mysterious.
Consider the no longer hypothetical situation we are in now with the end of
Roe, what has actually changed about abortion law in America now that the
Supreme Court has overturned Roe? In truth, almost nothing. Here in California,
abortion is as legal as it ever was. For those women living in states that are
now banning abortion, what has changed for them is that they might have to
spend a few hours on a Greyhound bus. Getting rid of Roe is not going to stop
anyone from having an abortion so why did liberals and conservatives spend
nearly fifty years fighting over Roe?
The key to understanding the
importance of Roe lies in thinking of it in terms of an "unwritten
constitution." No one ever interprets a text without a set of assumptions
that serve as interpretive lenses for how to read the text. Conservatives are
certainly correct in pointing out that, unlike the right to guns which the
Court just protected, the Constitution never says anything about a right to
abortion. That being said, this does not necessarily mean that it should be easier to buy a
gun than to get an abortion. It all depends on what sort of unwritten
constitution you believe in. If one does not approach the Second Amendment with
the assumption that gun ownership is essential to citizenship in a free society
then the right to bear arms becomes nothing more than a quaint text that should
not be allowed to get in the way of public safety. From there it is easy to say
that the Second Amendment only refers to members of militias carrying Eighteenth-century-style muskets.
On the flip side, if you assume
that the purpose of the Constitution is to allow people to pursue their own
happiness in defiance of established sexual mores, then it does not matter if the
Constitution never actually says this, this is what the Constitution really is.
(Note that the Constitution says nothing about a right to pursue happiness.
That is in the Declaration of Independence.)
As strange as it may sound, it
is the unwritten constitution that carries the greater authority. You can argue with a
written text and attempt to limit it in all sorts of creative ways. The
unwritten constitution is meant to be so thoroughly embedded in the thinking of society
that it should be impossible for members to think in any other way. In fact, what is not written can serve as bait to draw out the heretic into revealing
that they do not share the fundamental assumptions of the rest of society. For
example, do you believe that the First Amendment establishes a "Separation
Between Church and State?" If you said yes, you are factually incorrect.
The Constitution says no such thing. As with the pursuit of happiness, that was Thomas Jefferson, who was not
even part of the Constitutional Convention. If you are of
a liberal disposition, this fact should not matter. On the contrary, the
conservative who points this out has simply demonstrated that fail to
appreciate the "soul" of the Constitution, i.e., they do not accept
the unwritten liberal constitution.
The battle over Roe was never
really about abortion but the unwritten sexual revolution constitution that, following in the footsteps of Griswold, it furthered. In essence, the Court was
saying that it was an essential right for young women pursuing college and a
career to be able to have pre-marital sex without having to worry that, if
something were to go wrong, they might have to choose between marrying the
father or becoming single mothers. If you are
committed to building a society where there is no stigma attached to women
pursuing careers and having pre-marital sex then it is going to be necessary to
remove the stigma attached to abortion by not just making it legal but
enshrining it as a constitutional right in a similar sense as being able to
stand outside the White House waving signs.
When I last visited DC, I made a point of taking my son to see the wide variety of people protesting. It did not matter that I personally disagreed with many of these people. I accept that all of them, even the "smelly weirdos," were doing something positive. It is essential for me that we live in a country where it should be thought of as perfectly normal and uncontroversial to stand outside the White House and say bad things about the president. Note that if you were to tell me that none of this is in the Constitution, which only says that people can assemble to seek redress but not to insult politicians, you would be correct but you would also be demonstrating that there is a larger "soul" to the Constitution that you do not comprehend.
Being able to publicly say bad things about elected officials (as opposed to strongly implying that you would not be particularly bothered if they were murdered) is part of my unwritten constitution. The idea that the secular state must be backed by a broadly religious society with strong families and a conservative sexual morality is also part of my unwritten constitution. By contrast, the sexual revolution is not part of my unwritten constitution.
An easy way to see the role of
the sexual revolution constitution in Griswold and then Roe is to consider what
should be an obvious question. If people have the right to make decisions with
their own bodies and in consultation with their own doctors, why is there no
constitutional right for drug use or to sell their organs? To accuse people on
the left of hypocrisy is, in a sense, to miss the point. There is no deep
narrative entrenched within the mainstream left where drug use and organ
selling become essential to who people are and to take their place as citizens.
By contrast, birth control and abortion have this larger narrative that is more
important than any technical legal arguments, which only serve to justify the
sexual revolution constitution after the fact.
Similarly, one can point to the
claim of protecting women's rights. The Constitution does not offer special
protection for women. The sexual revolution constitution, by contrast, does. In
the narrative of the sexual revolution, women are a group oppressed by
traditional sexual mores. In order for the Constitution to remain legitimate,
it must be read in terms of the sexual revolution. Anyone who argues that the
Constitution has no category of women's rights may be factually correct but
they have also demonstrated that they are not embedded within the assumptions
of the sexual revolution.
It should be noted that it is
possible to want abortion to be legal to a large degree without wanting it to
be a constitutional right. I would consider myself to be within this camp.
There are lots of things that I want to be legal but not to be expressed
directly as constitutional rights. For example, I want adultery to be legal and
oppose any attempt by the government to punish infidelity. Similarly, I want
marijuana and even heroin to be legal. That being said, I do not wish for them
to be declared constitutional rights. To do so would be to accept an unwritten
constitution where extra-marital sex and drug use are accepted as positive
actions in the same sense as peaceful protesting.
I am fine with the Supreme
Court saying that the federal government has no authority over what people do
with their bodies as long as they are not causing physical harm to others. The
right of people to pursue their own good in their own way as long as they are
not causing physical harm to others is part of my unwritten constitution. This
will lead to the de facto legalization of adultery and drug use. Once this has
been accomplished, we can discuss whether this constitutional right to bodily
autonomy includes abortion or whether fetuses, in some sense, count as living
beings with a right to not be murdered.
Certainly, in the short run, I
do not expect the number of abortions nationally to drop. The importance of the
Dobbs decision is that it takes away the moral high ground from the left. They
no longer have the grounds to claim that abortion is a constitutional right.
That being said, I do not expect leftists to back down and soften their
rhetoric. On the contrary, we should expect an all-out attack on conservatives
for daring to not accept the constitution of the sexual revolution and upon the
legitimacy of the Supreme Court for acknowledging that there can be another
framework for reading constitutional law. With the overturning of Roe, the
stakes have been raised over the sexual revolution constitution. Either we must
accept that a group of Gileadists has conspired to take over the Supreme Court
and destroy the Constitution in order to enslave women into marriage and
motherhood or that the Supreme Court was taken over in the mid-20th century by leftists who rewrote the Constitution in order to enshrine the sexual revolution and that this unwritten constitution has now been rejected. Either way, I expect that there will be little room to
make the practical good-faith compromises that might create a workable legal
framework for abortion
.
No comments:
Post a Comment