Because I'm not sure how I'd answer Steve's question, I am going to pull the old law professor's trick of re-stating the questioner's question in a longer-winded and high-falutin' way, and then tossing the question back to the questioner:
Is Steve asking about the act of developing a "theory of constitutional interpretation that validates Roe v. Wade"? About endorsing such a theory? Or (and) are we talking about employing such a theory (perhaps in a context that is apparently unrelated to abortion, as in "parents' rights" litigation)?
Are we considering only whether the act in question falls into the category of "material cooperation with evil" (that is, performing an action that itself is not evil, but that helps another perform another evil action)? Or, are we also considering whether the cooperation, if it exists, is licit? (If I remember correctly, the morality of material cooperation with evil depends upon, among other things, the "proximity" of the cooperator's act to the evil action, and whether there is a "proportionate" reason for performing the action.)
Steve's question is, of course, of a piece with the fascinating debate that he, Larry Solum, Randy Barnett and others are waging about Barnett's new book, "Restoring the Lost Constitution: The Presumption of Liberty." (For a taste of this debate, go here, here, and here.
The question is important. After all, there appear to be, in my (still tentative) judgment, good reasons to believe that the Fourteenth Amendment's "privileges or immunities" Clause protects some "unenumerated" rights from state interference. To propose, embrace, or defend this view is, in some sense, to cooperate materially -- if very remotely -- with abortion, in the sense that, because the right to abortion is "unenumerated," a theory or account that authorizes judicial protection of such rights will likely be of use to those asking courts to invalidate anti-abortion laws. Arguably, the embrace or defense of such a theory by law professors might make it more likely (or might not) that courts will be willing to deploy it.
If it is true -- and I still hope that claims like this can be "true" -- that the "P or I" Clause really has this meaning -- i.e., really protects some unenumerated rights -- then it must also be true that whatever cooperation embracing this meaning supplies to the evil of abortion is not illicit. Otherwise, it would be immoral to embrace the notions that legal provisions mean what they were understood to mean when enacted, and that judges should try to locate and enforce that meaning. And that can't be right. Right?
Rick
Resolved, any theory of constitutional interpretation that validates Roe v. Wade constitutes material cooperation with evil.
Please discuss.
Update: I'll offer a hypothetical: You're a constitutional law scholar. You develop a theory of constitutional interpretation, which argues that there are certain unenumerated rights protected by the 9th amendment and the P&I clause of the 14th amendment. Specifically, you believe that those provisions incorporate a strong libertarian form of the harm principle.
Your theory, you quickly conclude, would justify and support Justice Kennedy's decision in Lawrence.
Upon further reflection, you conclude that your theory of interpretation would also justify the result in Roe v. Wade. (Ditto Griswold.)
You did not develop the theory to explain/justify Roe, but you conclude that under your theory there is no way to avoid recognizing a right to abortion more or less on demand.
What are your moral obligations as a legal theorist? Is developing the theory and/or explaining why it supports Roe material cooperation with evil?
The case of Dixie Shanahan -- a horribly abused woman who shot and killed her husband in the head while he was sleeping, and then left his body to rot in a spare room -- has been attracting a lot of comment on talk radio and morning television. As this article describes, the Iowa trial judge who was (apparently) required by that State's law to sentence Ms. Shanahan to 50 years in prison was candid and blunt in criticizing that law: He blamed state lawmakers for rigid laws that are "in my opinion, wrong. It may be legal, but it is wrong." He added, "perhaps, Dixie, your case will make the Legislature . . . take notice and do something to untie the hands of the judges in this state." (The article also notes that Shanahan turned down a guilty-plea deal that would have required her to serve only 10 ten years).
This case raises (again) important questions about mandatory-sentencing laws and about whether the criminal law's definition of offenses and defenses coheres with the experiences of battered women. More generally, the case returns us to those early weeks in Criminal Law, when we talk about the purposes and justifications of punishment, about desert, retribution, deterrence, rehabilitation, etc.
Also interesting are the facts that the final beatings suffered by Ms. Shanahan were precipitated by her refusal to have an abortion, as demanded by her husband; and that she claimed to have acted not only in self-defense, but in defense of her unborn child.
Rick
Monday, May 10, 2004
Mark Movsesian is right to note that the traditional family is breaking down in Europe as well as the United States. That said, Europeans are much less likely than to suffer from the social ills that tend to be attributed to family breakdown (at least in this country). Rates of child poverty, family poverty, infant mortality, violent crime, and penal incarceration, for instance, are typically much lower in European countries at the same level of economic development as the United States.
What is interesting about Gray's work is that he does not limit inquiry to the world's wealthiest nations. He is particularly interested sophisticated developing economies of Asia--places like Singapore, Tiawan, and South Korea. Like Japan, these nations embrace the free market and democratic institutions, but reject American individualism and Anglo-American conceptions of liberalism. This is not to say that they are getting everything right, only that the experiences of these states raise the legitimate question of whether liberal democracy and free markets must always conform to social conditions that Americans find acceptable.
On balance, the American understanding of market and individual freedom undermines the family and other communal institutions by fostering cultural individualism that encourages and rewards selfish, self-aggrandizing behavior, and by rejecting an understanding of government as an extention of the communal life of society. In some instances to the promotion of dignity in community can only be assured at the level of the state. How does a nation as wealthy as the United States justify a health care system denies preventive care to the poor in order to provide the sophisticated extraordinary care to the rich? Why do we accept an educational system that, increasingly, barely serves the middle-class, much less the poor? How do we justify our extraordinary rates of incarceration, particularly of African-American and Hispanic men? Why are we willing to wage "preventive" wars, but unwilling to cut our oil consumption?
Some societies believe in shared sacrifice, and like so many things, it's a value that begins at home.
Vince
Mark Movsesian, a law professor at Hofstra, emailed me to weigh in on the purported tension between free markets and traditional family structure (see earlier posts below). He notes that "European countries tend to be much more socialist, or communitarian, than we are," but that "the traditional family is in a lot of trouble there too -- no less than here, and maybe more." In Sweden, for example, there is widespread talk of the "end of marriage." Professor Movsesian suspects that secularization may have a greater role in the traditional family's demise than commentators like John Gray give it credit for.
The example of Western Europe does seem to suggest that more family-friendly economic intervention by the state is at best a necessary, but not sufficient, measure by which to reverse, or at least stabilize, the decline of the marriage-centered family. Undoubtedly a certain level of desire among citizens to maintain the family must also be present, and that is where the broader forces of secularization come into play. In Europe, the citizenry's inclination toward the marriage-centered family has long since dissipated, apparently. In the United States, perhaps the unfettered operation of the markets makes it more difficult to discern whether that inclination is still with us.
Rob
