Strengthening Constitutional Self-Government

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The American Political Tradition and Abortion

On Principle, v3n5

October 1995

by Dennis Teti

Scott Stripling’s article (On Principle, June 1995) discusses abortion in the context of the founding documents without saying what abortion is: an act intended to result in the death of a "man," to use the language of our premier founding document, the Declaration of Independence. But it is impossible to discuss abortion intelligently without beginning by understanding the nature of the act. Hence his attempt to confine abortion regulation to the states is at best inconclusive.

Stripling considers abortion to be an "issue . . . of sexual behavior," like contraception, homosexuality, or adultery. Sexual behavior falls in the category of morality, which is "inherently prone to incite controversy," and the Founders left morals regulation to the states under their police powers.

But abortion is not a sexual act; it is a separate act performed weeks or months after, and in consequence of, sexual intercourse. A better comparison might be to that of a doctor suffering from a fatal, sexually transmitted disease who out of rage kills others by using contaminated needles. No one would describe the deliberate injection of infected fluid as sexual behavior, even though a prior sexual act was involved, and few would have a problem identifying it as a species of homicide. Everything, then, turns on acknowledging the nature of abortion as intending the death of a human being, and its nature must be understood before appealing to laws, constitutions, or founding documents.

The Declaration of Independence proposes as the end of good government the securing of the equal natural rights of "all men" to life, liberty, and the pursuit of happiness. Indeed, the Declaration argues radically that governments which design to destroy these ends are despotic, and men have not just a right but a duty to revolt against them. What follows from this is that a society ordered by principles of natural rights, whether its political powers are federated or national, must rest on an agreement or consensus as to who is the subject of those rights.

America’s original Constitution, though grounded on the Declaration’s great proposition that all men are created equal, evaded the issue of the humanity of black slaves. In order to achieve ratification in southern states, the authors of the Constitution of 1787 were compelled to allow states to legalize chattel slavery. Nevertheless even the antebellum document provided the federal government with some power to limit slavery, such as the ban on the importation of slaves after January 1, 1808. In legislating antislavery provisions in the Northwest Ordinance and the Missouri Compromise, Congress clearly believed it had implicit power to protect the lives and liberties of black human beings in U.S. territories.

The federal Constitution, says Federalist No. 39, established an incomplete national government. As No. 15 points out, the Articles of Confederation which were superseded by the Constitution did not form a government, properly speaking, because their authority was limited to legislating over the state governments instead of individuals and that restriction is incompatible with the very idea of government. Consequently the Constitution, which establishes a true but incomplete government, may be held to the Declaration’s criterion of good government: securing the equal natural rights of "all men."

From the very beginning the Constitution, so to speak, blushed because it gave the states power to deprive some men of their natural rights e.g., using circumlocutions for the word "slaves" such as "person held to service or labour in one state" (Art. IV, sec. 2), "all other persons" versus "free persons" (Art. I, sec. 2), and "the migration or importation of such persons" (Art. I, sec. 9). The Founders did not miss the fact that the Constitution could not meet the
standard set by the Declaration as long as slavery remained legal.

This constitutional halfway house in which slaves were part man, part property, was the Gordian knot which Chief Justice Roger Taney tried to untangle when he held in Dred Scott v. Sandford–contrary to the standard of the Declaration of Independence–that blacks had no rights which white persons were bound to respect. The consequence of Taney’s imprudent jurisprudence was civil war. That war was inevitable in a liberal democratic polity founded on the moral principle of equal natural rights because such a society cannot long endure disagreement over its most fundamental moral problem: Who is a man and thus the subject of equal natural rights?

By relegating abortion entirely to the states, Stripling has revived Taney’s jurisprudence in a new form, according to which there is a class of human beings (unborn children) whose rights other human beings (abortionists) are not bound to respect. The clue that this is his purpose is his
return to the antebellum "founding documents." Stripling does not explain why the Constitution’s Amendment 5 is a "founding document" but not Amendments 13, 14, and 15.

The three post-war amendments were necessary, however, in order to end the national embarrassment of legalized slavery and resolve the ambiguity of the 1787 Constitution respecting black human beings. The Fourteenth Amendment in particular constitutionalized the Declaration’s natural rights standard according to which every person is entitled to the equal protection of the law.

Stripling correctly points out that natural rights under the Constitution are not unlimited, and that the states "in the ordinary course of affairs" reserve powers over the lives, liberties and properties of the people." The Founders, for example, expected the states to establish rules for trying and punishing murderers and thieves which would accordingly vary from state to state. No state, however, would have constitutional authority to, let us say, refuse to punish anyone who murders persons of a certain religion or skin color.

On Stripling’s reading, however, the states may constitutionally abandon the natural rights of a given class of men to the private control of any other class the old justification for black slavery. All government implies limitations on natural rights, but the limits must be just and equal, not arbitrary. For example, the natural rights of a violent criminal, including his life, may justly be denied because he in effect surrendered them by committing violence against another. An unborn human being, however, has committed no act which would justify the taking of his life and he therefore retains the natural right not to be deprived of his life by other persons.

A myriad of moral contradictions result from a regime in which each state has an absolute right to legalize or forbid abortion. For example, is it morally coherent in a liberal democratic society for an abortionist on one side of the street to be jailed for committing a homicidal act which across the street he will be paid by the government for performing? How can this state-by-state approach reduce "controversy" over fundamental moral issues, as Stripling suggests?

Pro-life advocates like myself have long argued that the moral issues involved in slavery and in abortion are not just similar but the same. George McKenna’s September Atlantic Monthly cover article on "How Lincoln Might Have Dealt with Abortion" is the first intelligent treatment of this question along Lincolnian lines to break into the mainstream media, signaling that the time is ripe for a serious national debate on the contradictory moral principles at issue. McKenna shows that pro-slavery interests, led by Stephen A. Douglas who took the "don’t care" or "pro-choice" position that the question was a matter for private or state concern, kept anti-slavery forces at bay until Lincoln broke the impasse by insisting that the question whether black slaves were "men" was for the nation to decide. Today the abortion debate can only be obscured by pro-life spokesmen such as Stripling who maintain that abortion is an issue of individual m
orality subject only to the state police powers.

There are, though, two major differences between slavery and abortion. First, the original Constitution included compromises which permitted states to legalize slavery, while it includes no language permitting abortion. Second, whereas pro-slavery interests centered in one region and anti-slavery sentiments in another, pro-life and pro-abortion attitudes divide homes and families
across America. That is probably the major reason why, unlike the slavery question, the conflict over abortion has led to scattered violence and not so far to a new civil war.

Dennis Teti is Adjunct Professor of Political Science at Hillsdale College and Special Assistant at the U.S. Commission on Civil Rights. Opinions expressed are not necessarily those of these institutions.

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