Despite their opposing positions on abortion, John Tierney and George Will each subscribe to some version of the never more popular view that abortion is not or should not be a question of constitutional rights. What better way to circumvent those pesky constitutional questions–questions about which, suprisingly, people seriously disagree–than to deny the relevance of the question to constitutional law. At least, so Tierney argues:
The abortion debate, unlike the civil rights debate, can’t be resolved by appealing to any widely held moral or legal principles. In Roe v. Wade, the Supreme Court discovered a right in the Constitution for pregnant women to be left alone by the government. But that just ducked the question – what about the fetus’s right to be left alone? – and angered huge numbers of Americans.
For starters, *Roe v. Wade* doesn’t duck the question at all; it (rightly or wrongly) clearly maintains that the fetus has no legal rights (at least in the first two trimesters). Second, evidence of a conflict of rights (mother-fetus) or sincere disagreement of a vocal number of Americans does not mean that it (1) is not, or should not be, a civil rights issue, or (2) that the justices were wrong. Finally, a conflict of views about the status of the fetus does not demonstrate that the issue “cannot be resolved by appealing to any widely held moral or legal principles” unless by “resolved” Tierney means “subject to wide consensus” in which case he would be saying the abortion issue cannot be resolved (subject to wide consensus) until it’s resolved (subject to wide consensus). But that’s nonsense. Supreme Court cases, whatever their outcome, resolve (answer for some span of time) legal questions concerning constitutional rights; they do not, so it seems, end moral debate about the same questions.
The idea that abortion might constitute a right entailed by the Constitution appears so ridiculous to George Will, that he can muster only a barely intelligible drunken parody of the “Ride of Paul Revere.”
Judging by the river of rhetoric that has flowed in response to the court vacancy, contemporary liberalism’s narrative of American constitutional history goes something like this:
“On the night of April 18, 1775, Paul Revere galloped through the Massachusetts countryside, and to every Middlesex village and farm went his famous cry of alarm, ‘The British are coming! The British are coming to menace the ancient British right to abortion!’ The next morning, by the rude bridge that arched the flood, their flag to April’s breeze unfurled, the embattled farmers stood and fired the shot heard round the world in defense of the right to abortion. The Articles of Confederation, ratified near the end of the Revolutionary War to Defend Abortion Rights, proved unsatisfactory, so in the summer of 1787, 55 framers gathered here to draft a Constitution. Even though this city was sweltering, the framers kept the windows of Independence Hall closed. Some say that was to keep out the horseflies. Actually, it was to preserve secrecy conducive to calm deliberations about how to craft a more perfect abortion right. The Constitution was ratified after the state conventions vigorously debated the right to abortion. But 74 years later, a great Civil War had to be fought to defend the Constitution against states that would secede from the Union rather than acknowledge that a privacy right to abortion is an emanation loitering in the penumbra of other rights. And so on.”
It’s hard to know what to make of this. On the one hand, it seems like a version of the obtuse constitutional originalism that claims there are no other rights in Constitution than those explicitly mentioned by the framers or somehow consequent upon the attitudes of the founders.
On the other hand, it suggests that opponents to the Roberts nomination can think of only one thing. That’s true of some opponents–but geez Louise–that’s true of some of his supporters. But in any case it doesn’t absolve Will of the need for an *argument*. If Will wants to use the pages of the *Washington Post* to lampoon *some* liberal groups, rather than argue against them, then we suggest his purpose would be better served on the Rush Limbaugh show, where no one will fault him for not having any good reasons for his conclusions. Granted a slight difference in vocabulary, the level of discourse is about the same.
The exhibits at the National Constitution Center can correct the monomania of some liberals by reminding them that the Constitution expresses the philosophy of natural rights: People have various rights, including and especially the right to property and self-government. These rights are not created by government, which exists to balance and protect the rights in their variety.
But such bland truisms about the constitution don’t resolve anything. Whatever the source of rights–nature, God, or social contract–there always remains the question as to what is entailed by them. Determining their source doesn’t resolve this question; it only pushes it back one step further.