Cooperation with Evil, Roe, and the Constitution

Returning to Steve’s question on cooperation with evil, Roe, and the Constitution, I find Randy Barnett (Originalist Sacrifices, Volokh Conspiracy) helpful as a preface to my post:

“A commitment to a written Constitution, however, requires either that one put the law represented by the Constitution ahead of one's even deep-seated desires, or that one candidly reject the Constitution as so morally deficient as to lose its status as binding authority. What is improper is both to jettison the written Constitution AND to wrap oneself in its mantle.”

In Steve’s hypothetical, does the constitutional theory justify Roe’s outcome as a reasonable (but not required) interpretation of the Constitution or does it require or compel the result in Roe?

In either case, I would not think that developing the theory and/or showing how it can be used to justify Roe is in itself cooperating with evil. If I conclude that the Constitution, as written, allows for or requires the result in Roe, then I am merely stating the conclusion derived from my interpretative theory. I go down a dangerous path (as Robert Bork has pointed out on more than one occasion) if I mangle the Constitution to achieve what I think is a good result.

The relevant inquiry for me is how do I respond to the Constitution, which I have hypothetically concluded must be interpreted to allow or require Roe’s result?

If my constitutional theory merely validates but does not compel Roe’s outcome, then I do not think I cooperate with evil in promoting my theory. From my limited understanding of moral theology and philosophy, I am not engaged in formal cooperation or immediate material cooperation with those who promote the pro-Roe reading of the Constitution using a similar interpretative theory. The moral object of my act (promoting a constitutional theory that has the effect of preserving a sphere of authentic freedom for the individual) is distinguishable from the moral object of the other's act (promoting a constitutional theory that has the effect of creating a sphere for the disordered use of freedom, i.e., killing one’s offspring). Lest there be any confusion about my position, I could disentangle myself from any association with those who intend the evil end (Roe’s result) by developing and promoting arguments as to why Roe’s result should not be adopted under my theory, even if it is a permissible but not necessary result under my theory.

If, however, my constitutional theory compels the result in Roe, then while I may develop it, and argue its logical conclusions (the validation and requirement of Roe’s result), I do not think that I can promote such a constitutional regime without illicitly cooperating with evil. It is at this point that I would be required to take Professor Barnett’s second path and “candidly reject the Constitution [or that part of the Constitution that requires Roe’s result] as so morally deficient as to lose its status as binding authority.”

If I cooperated in and promoted a constitutional regime that required Roe but also allowed (maybe even required) other freedoms, i.e., parental choice in education, I would be, if I understand the terms correctly, engaged in cooperating illicitly with the evil of abortion. Depending on my intent, this cooperation may be implicit formal cooperation or immediate material cooperation. Either way it remains morally wrong.

My cooperation would be implicit formal cooperation if I made a bargain with the devil: “I’ll promote this constitutional regime even though it requires Roe’s result because it also protects my interest (i.e, parental educational choice) in return for you (the abortion advocate) promoting this constitutional regime, which protects the freedoms that I care about.” This is formal cooperation with evil because I am joining the abortion advocate in his intention to promote a constitutional regime that requires protection for abortion. In other words, by my compromise, I intend the evil consequence, albeit for my own good reasons.

My cooperation would constitute immediate material cooperation with evil if I continued to promote this constitutional regime despite the fact that it requires Roe’s result. Although I do not intend the evil consequence (an abortion regime), my actions in promoting a constitutional regime consistent with my constitutional theory for good reasons (protection of authentic freedom) has the direct and immediate effect of aiding those who desire the evil object (protection of a disordered freedom that will allow for the killing of one’s offspring).

Now that I have hazarded an answer, I welcome comments, criticisms, and corrections from readers and co-bloggers.