The Mississippi abortion case and the American way of life – Washington Times

Posted: December 15, 2021 at 10:02 am


The Mississippi abortion case (Dobbs v. Jackson Womens Health Organization), like Roe v. Wade, is about abortion, but it is also about much more. It is not a stretch to argue that both cases are about the American way of life, or what it means to be an American.

As with most constitutional cases, the logic behind the ruling is what really matters. In the case of Roe, Justice Harry Blackmun relied on arguments that served his purposes but lacked substantive grounding in the reasoning behind the Constitution itself.

Blackmun construed an unenumerated right of privacy as protecting the right of persons to pursue a preferred lifestyle. This right was deemed to be fundamental (not absolute) and thus subject to restrictions, but only restrictions that can withstand the strictest judicial scrutiny.

As indicated in Roe and later cases, the outer boundary to this right is the threat of harm to a human being. Since Blackmun concluded that a nonviable fetus is not a person under the Constitution, the door was open to abortion on demand during the first two trimesters of pregnancy. Mississippi wants to shrink that period to 15 weeks.

The claim that the Constitution protects a right to pursue a preferred lifestyle in the absence of harm to human beings warrants the closest scrutiny of the Supreme Court and the American people. This language, of course, appears nowhere in the Constitution. More importantly, this construction of a constitutional right to privacy, even if such a right in some form is conceded to exist, is highly problematic.

The Constitution was a means to something larger than itself, that is, a certain type of republic or political community, and that republic, in turn, was a means to something larger than itself, that is, nurturing a people distinguished by a distinctive way of life.

The natural rights reasoning that legitimated the American Revolution has been variously associated with a libertarianism that erodes community-spirit, a rampant egalitarianism that endangers individual liberties and limited government, and a culture that prioritizes physical self-indulgence. None of these dispositions captures the complex way of life that was the end goal of the Constitution. James Madison, the person we call the father of the Constitution, argued in Federalist Paper No. 10 that the new constitutional order was intended to protect persons in the full exercise of their faculties, which should not be confused with a do your own thing way of life.

Protecting persons in the exercise of their faculties, for Madison, was inseparable from his desire to give the American people a real shot at flourishing as individuals and as a distinctive people. He carefully pointed out the connection between republican manners and what he called rational dignity.

Individual rights under the Constitution are only intelligible when examined in the context of the way of life that the Constitution was intended to promote. Not surprisingly, from the Founding forward, the American people have supported regulations that restrict individual liberties to the end of promoting decent and civilized behavior, whether based on appeals to nature as in the Declaration of Independence or to the popular will.

Blackmuns liberal construction that the right to privacy protects a right to pursue a preferred lifestyle in the absence of harm to some person does not take Americans to the same place as the conviction that good habits in addition to fundamental liberties are at the heart of the way of life that the Constitution intended.

Consider, for example, the prosecution and conviction of former NFL quarterback Michael Vick for running a dogfighting ring. If discarding fetal tissue during the early stages of a pregnancy can be reconciled with Blackmuns construction of a right to privacy, then pursuing a lifestyle that endangers animals that will never evolve into human beings seemingly should be protected by his reasoning.

The argument for prosecuting Michael Vick rests in truth on the conviction that a society that values moral decency does not tolerate his behavior. Significantly, this is the same argument used by pro-life advocates who object to Roe v. Wade. Minimally, they argue that civilized societies do not legalize abortion on demand or abortions for the sake of mere convenience.

Blackmun leaves us little basis to critique self-indulgence. Still, an important presupposition of Americas civic culture is that liberty can only lead to safety and happiness if our conduct transcends mere self-gratification or uninhibited self-expression. None of this is accounted for by Blackmun in Roe.

The task of giving meaning to a way of life that is good for human flourishing was entrusted by the Constitution to the people this is the meaning of self-government. In extraordinary cases, the American people may consider something so significant that it deserves to be protected by the Constitution itself. However, in most cases, our judgments about what to praise or condemn are made within the many political jurisdictions that make up our federative republic.

While it is the case that our effectual or everyday republic needs to be constantly inspirited to make our ideals concrete; what does not change each day is the end goal of the documentary republic, that is, a commitment to a way of life that encourages people to acquire rational dignity, to quote Madison.

The debate over abortion regulations should not be separated from considerations intimately connected with what Americans believe constitutes a defensible way of life. These political and moral considerations are hardly synonymous with Blackmuns construction of an unenumerated right to privacy in Roe.

The challenge facing the Supreme Court in Dobbs is to reconcile the right to privacy with the reasoning that underlies the Constitution, which is the same as saying that the right to privacy must be made compatible with a preference for liberty over servility and civilization over barbarism.

David Marion is Elliott professor emeritus of government and a faculty fellow at the Wilson Center for Leadership in the Public Interest at Hampden-Sydney College.

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The Mississippi abortion case and the American way of life - Washington Times

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