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by Phillip E. Johnson
Ronald Dworkin, University Professor of Jurisprudence at Oxford, and Professor of Law at New York University, wants to unite constitutional law with liberal moral philosophy. To that end he argues in Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press, 1996) that the correct way to read the United States Constitution is to recognize that the Framers enacted certain broad principles—due process, equal protection, freedom of speech, and so on—rather than specific rules. Contemporary judges should interpret those principles not necessarily as the Framers themselves may have understood them, but according to the best understanding available today. The justices of the Supreme Court should even read new principles into the Constitution, if that is necessary to bring the Constitution into agreement with the best moral philosophy of our time. Under this “moral reading,” the Constitution is not the document we usually associate with that term, but a set of philosophical principles related only in a very general way to anything specifically anticipated by the Framers.
Dworkin has received severe criticism for his seemingly limitless enthusiasm for rule by judges, meaning judges who rely upon professors like himself for advice. I agree with the critics, and yet there is something to be said for thinking of “the constitution” neither as a specific text nor as whatever the justices say in their opinions, but as the set of living principles of shared rationality that set the outer boundaries for public debate. The point of having a constitution, after all, is not to ensure fidelity to the words of a document written for another era, but to ensure that a temporary majority does not go too far beyond the bounds of reason. Most conservatives would agree that such boundaries need to be set and that setting them is a much more complicated process than simply interpreting a document. But what are the bounds of reason? And what institutional arrangements are most likely to ensure that reason prevails?
The perennial debate over the distribution of wealth and the role of government in relation to the market illustrates how it can be valuable to think of “the constitution” as a set of rational principles shared by competing political factions. Conservatives have stressed the need to protect markets and property rights, to guard against the irresponsible tendency of politicians to buy votes by promising to give away other people’s money. Liberals and radicals have countered by arguing that a stable democratic society requires an activist government dedicated to achieving economic justice.
Both sets of arguments are constitutional, in the sense that they state rational boundaries that are respected regardless of which political party wins the elections. There are libertarians who argue that the distribution of wealth is none of the government’s business, and classical socialists who want the government to run the economy directly and pay everybody a salary, but these positions are marginalized as outside the mainstream of public debate. Conservatives in power know that they won’t stay in power long if the results of their theory outrage the public, and liberals in power know they will be in trouble if they threaten to kill the goose that lays the golden eggs.
The constitution of reason is enforced not primarily by judges, although they have an important voice, but by an intangible process that resembles the way the British constitution is maintained while being occasionally revised. This process sometimes creates new institutions, like the independent Federal Reserve Board, to protect the economy from the politicians. The constitution of reason fairly effectively excludes overt racism from the public square, although Supreme Court decisions say that the First Amendment protects racist and anti-racist speech alike. Louis Farrakan and David Duke can say what they like, but at the price of uniting the reasonable people against them. The borders of the constitution of reason are continually being challenged, in debates over subjects like affirmative action and multiculturalism, but the center holds firm. It is this firm center of shared reason that keeps the constitutional order intact, not a document stored in the National Archives building, or the justices in their Greek temple.
Middle Ground on Abortion?
The burning question today is whether we have a constitution of reason with respect to issues like sexual freedom and the right to life. The alternative is a culture war, and this prospect is what creates the crisis of legitimacy that was so hotly debated in the pages of First Things recently.
Let’s just address the question of abortion, because that is the most publicly contested issue and one about which Dworkin has written at length, both in his current book Freedom’s Law and in his 1993 book Life’s Dominion. Dworkin argues that we do have a constitutional solution to the abortion controversy, if we assess the moral status of the fetus correctly. A fetus, he argues, is not a “constitutional person,” but also it is not merely a bodily part of the mother, which can be discarded as casually as a tumor or a defective appendix. It is something in between, a human life that should not be extinguished casually but not a person whose deliberate killing would be murder.
Dworkin attempts to establish this middle position by showing that most people implicitly accept it regardless of their rhetoric. He points out that the majority of pro-lifers would allow abortion in some extreme circumstances. If the fetus were a person, however, deliberately killing it would be murder even to save the life of the mother. Moreover, the pre-Roe law never treated abortion as murder, but as a separate crime with a much lower penalty. Finally, if the unborn were persons it would be unconstitutional for a state to authorize killing them, but even the Reagan Administration conceded in the Supreme Court that state legislatures were free to permit abortions. Thus the effective boundaries of public debate (which are not necessarily congruent with the will of God, or with truth in a more absolute sense) define the fetus as something less than a constitutional person, and allow abortion as morally permissible when the interests in favor of abortion are compelling.
On the other hand, Dworkin says that the pro-lifers are right to think of the fetus as something that is “sacred,” because human life is the finest product either of divine creation or of biological evolution. His reasoning is complicated, but the basic point is that the law deems many things worthy of protection that are not “persons.” Great works of art and historical landmarks are examples. Hence it is rational for us to regard the wanton destruction of an unborn child as a terrible shame, and to condemn the destroyer as we would condemn the perverted art collector who buys up Rembrandts in order to burn them.
So far it sounds as if Dworkin were trying to establish a constitution of reason, defined by a solid center that would reject the two extremes of “abortion on demand” and “abortion is murder.” The resulting public debate might lead towards a compromise resembling the Therapeutic Abortion Acts that many states passed during the 1960s. These statutes retained a general prohibition of abortion but allowed a range of exceptions for pregnancies resulting from rape, for severely deformed fetuses, and sometimes even open-endedly where continued pregnancy would endanger the “physical or mental health” of the expectant mother. The Therapeutic Abortion Acts were unsatisfactory to pro-life advocates because they allowed many abortions, and to pro-choice advocates because they made abortion-seekers satisfy burdensome requirements, but they avoided the culture war that the Supreme Court provoked when it took the issue away from the political process and imposed a one-sided solution.
An Empty Middle Ground
Dworkin’s talk of the “sacred” nature and “intrinsic value” of life turns out to be so much empty rhetoric, however, at least as far as law is concerned, because in the end he insists that the expectant mother has an absolute right to an abortion regardless of her reasons. This absolute right comes from the concept of moral autonomy, which was most famously articulated in the “mystery passage” of one of the opinions in Planned Parenthood v. Casey, the 1992 decision that enthusiastically reaffirmed the right to abortion. As Dworkin himself summarizes the logic of the mystery passage ( Freedom’s Law, pp. 120–121), “It would be wrong… for a state to form official, collective convictions about essentially ethical and religious issues… , and to impose those official convictions on individual women, forcing them to suffer great personal hardship for particular metaphysical beliefs, about the meaning or inherent value of life, that they do not share.” The “moral reading” paradoxically ends in the assertion that the state may not decide tough moral questions.
To get an idea of how broadly Dworkin defines “great personal hardship,” here is what he says about the alternative of putting an unwanted infant up for adoption: Adoption is no solution, “because many women would suffer great emotional pain for many years if they turned a child over to others to raise and love.” ( Life’s Dominion, pp. 103–104) If Dworkin thinks there is anything morally dubious about preferring to kill an unwanted child in the womb rather than to turn it over to loving parents who are eager to adopt, he gives no indication of it.
Indeed, it’s not clear how any choice can be wrong if every individual has a right to act on his or her own metaphysical beliefs. Human life (or whatever) is just as sacred, or just as trivial, as any individual wants it to be. The logic of liberal theory probably wouldn’t allow us even to teach in the schools that human life has more intrinsic value than, say, animal or plant life. Wouldn’t this amount to establishing an official decision about essentially religious and ethical issues?
A Troubled Pro-Choice Conscience
The feminist Naomi Wolf takes a pro-choice position much like Dworkin’s, but at least she states the moral problem in a way that convinces me that she is genuinely troubled by it. In her article in The New Republic (October 16, 1995), Wolf provides two moving paragraphs about a woman named D. Redman, who published an account of her own chemical abortion (in Mother Jones, January 1994):
Having become pregnant through her partner’s and her own failure to use a condom, Redman remarks that her friend Judith, who has been trying to find a child to adopt, begs her to carry the pregnancy to term. Judith offers Redman almost every condition a birth-mother could want: “Let me have the baby,” she quotes her friend pleading. “You could visit her anytime, and if you ever wanted her back, I promise I would let her go.” Redman does not mention considering this possibility. Thinking, rather, about the difficulty of keeping the child—“My time consumed by the tedious, daily activities that I’ve always done my best to avoid. Three meals a day. Unwashed laundry . . .”—she schedules her chemical abortion.
The procedure is experimental, and the author feels “almost heroic,” thinking of how she is blazing a trail for other women. After the abortion process is underway, the story reaches its perverse epiphany: Redman is on a Women’s Day march when the blood from the abortion first appears. She exults at this: “Our bodies, our lives, our right to decide… . My life feels luxuriant with possibility. For one precious moment, I believe that we have the power to dismantle this system. I finish the march, borne along by the women… .” As for the pleading Judith, with everything she was ready to offer a child, and the phantom baby? They are both off-stage, silent in this chilling drama of “feminist” triumphalism.
There is even more to the story than Wolf relates. The reason D. Redman chose a chemical rather than a surgical abortion is that, at age 40 with scars on her cervix, she feared that surgery “might impair my future fertility.” She also describes her ambivalence in the days immediately before the abortion: “I’m haunted by the vision of a small face that I love beyond imagining. . . . Almost as a bystander I watch as my body and my psyche do what they are programmed to do, honing down to the single focus of sheltering this new being. I find myself scrupulously avoiding alcohol. Am I eating enough vegetables?”
Like many other women in her position, Redman has viable alternatives to abortion, including both adoption and changing her way of life. She knows instinctively that her body is sheltering a new human being that she wants to “love beyond imagining.” She has had a lot of help in learning to deceive herself, however, some of it probably from tax-supported educational institutions that promote the radical feminist line. The same logic that inspired the mystery passage inspires her to think of abortion as a heroic act of rebellion. What we are seeing in this story, to put it bluntly, is a form of moral insanity that is socially encouraged. I’d like to ask Ronald Dworkin: doesn’t even your own theory point to that conclusion? For that matter, I’d like to ask D. Redman what she thinks about abortion a few years from now. Like Norma McCorvey, the real-life plaintiff in Roe v. Wade, she may change her mind.
An unlimited right to abortion fits the ideology of the cultural left and of the economic right, and so any significant change in the law is unlikely. For those on the pro-life side, the only encouraging news is that even Ronald Dworkin understands that there is a difference between what is legal and what is right. Dworkin himself doesn’t take the difference seriously, but maybe some other people will. If and when they do, Dworkin’s idea that the Constitution should be given a moral reading may suggest that the intrinsic value of human life should be given more than nominal respect.
Phillip E. Johnson is Professor of Law (emeritus) at the University of California at Berkeley. He is the author of Darwin on Trial, The Wedge of Truth, The Right Questions (InterVarsity Press), and other books challenging the naturalistic assumptions that dominate modern culture. He is a contributing editor of Touchstone.