Reasonable Laws & Respect for Life
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.
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.
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