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September 23, 2005

A Dark Cloud over Our Society

It's a curious gain that David Gelernter suggests conservative pro-lifers would make should they back a constitutional amendment making abortion legal:

How can democracy reassert itself given American political reality? Congress could propose, and the nation could ratify, a two-part constitutional amendment.

Part one would legalize abortion with suitable restrictions. Part two would nullify Roe and reaffirm that only Americans and their elected representatives have the power to make law in this nation. All courts would be implicitly instructed by this slap-in-the-face clause to butt out of law-making.

Obviously, pro-abortion liberals would gain if such an amendment were ratified. Anti-abortion conservatives would too — not in their fight against abortion, perhaps, but as Americans. They can live in a nation where abortion is legal and democracy is under a cloud, or a nation where abortion is legal and democracy has been resoundingly reaffirmed.

What then for we who believe that "a nation where abortion is legal" is a democracy "under a cloud" by definition? Professor Gelernter's intended audience mustn't be conservatives, because he makes absolutely clear that we would have to sacrifice a state of affairs in which "supporters of abortion rights have been nervous... with good cause" for one in which "abortion rights would... be backed by the legitimate authority of the people." And for our part, we would experience the peace that comes with surrender.

Posted by Justin Katz at September 23, 2005 10:37 PM

It's funny when liberals don't even pretend to have any principles. For decades they've been horrified at any implication that Roe was based on the "Make-a-Wish theory of jurisprudence." Now one of them wants to admit that they've been wrong for all these decades, and they want a new direction.

The libs can keep on dreaming; the rest of us can keep on voting.

Posted by: Ben Bateman at September 24, 2005 5:26 PM

There can be no legitimate constitutional right to abortion until that right is assured to ALL citizens. That means fathers must have equal rights to kill their unborn children as mothers.

As it stands, we have a regime of gender inequality that simply cannot stand.

Posted by: Marty at September 24, 2005 8:08 PM

PS: in exploring the above referenced gender inequality on another blog, it occurs to me that if men and women do not have equal reproductive rights, then under any same-sex marriage regime, lesbian couples would have MORE equality than traditional man+woman marriages, while unions of gay men would have considerably less.

Just something to mull over, maybe for a future post. This gender inequality enshrined by Roe simply cannot stand.

Posted by: Marty at September 24, 2005 8:14 PM

Gelernter is generally regarded as a conservative, I think. But his suggestion is a bizzare one. I don't understand the premise that we have to capitulate on abortion in order to assert democracy. Why does one imply the other? And why does the amendment have to have both parts - why can't it just be the second part? And why can't we just overturn Roe (most likely in a stepwise fashion), and let the states regulate abortion? As I said, bizzare...

Posted by: Mike S. at September 24, 2005 9:20 PM

As I indicated in my post on the topic, I think Gelernter's proposal is a non-starter, anyway. It also falls short in that, as Justin indicated, it asks for abdication of moral principles with decidedly little in return. In addition, it is a rather nebulous assumption to think that, once "the people" decide, the decision will be final. That "misunderestimates" the power of the ideologies on both sides of the issues. (BTW, I view ideologies as good, not bad as so many others imply when they rail against the "ideologues.")

Posted by: Marc Comtois at September 25, 2005 7:39 PM

Its like someone about to throw the baby out with the bath water, and someone else suggesting a compromise - keep the bath water and just throw out the baby.

Posted by: c matt at September 27, 2005 12:35 PM

I don't see why it would need to be a two-part amendment. If our representatives in Congress would ever develop the fortitude to overturn the case with a single part amendment that should be the same as giving notice to the Oligarchy that overstepping its bounds will not be tolerated further. Heck, if they even had the fortitude to turn the whole question into a nationwide referendum one way or the other, that should do the trick.

Posted by: smmtheory at September 27, 2005 6:03 PM

Unless I've lost all sense of logic, Gelernter's two amendments are contradictory in nature. Roe v. Wade, in my view, is unconstitutional since it took authority away from the states and assigned it to the federal government. That's not something you can do in legislation but only via a constitutional amendment. So repealing Roe v. Wade would return the abortion issue to the individual states.

Gelernter's second amendment, however, effectively does what Roe v. Wade is doing today. It takes the abortion issue away from the states and hands it back to the federal government in the form of a constitutional amendment making abortion legal.

It seems to me that Gelernter is simply trying to avoid the constitutionality of Roe v. Wade first by irradicating it (which doesn't need an amendment) and then by amending the constitution to legalize abortion.

Where I really take exception to Gelernter, however, is in his assumption that the legalization of abortion resoundingly reaffirms democracy. He completely ignores the fact that for those of us that are pro-life, the legalization of abortion would constitute the legalization of first degree murder. That's not my definition of democracy.

Posted by: Ron at September 30, 2005 9:38 PM