Life Watch: To Amend, or Not Amend—That Is No Question

It has been, as we used to say, the kind of political season that would strain the temper of even the Good Humor Man. How else to account for a recent show of testiness on the part of the editors of the Wall Street Journal, directed, of all things, to the pro-life movement.

The editors of the Journal have been, for the pro-lifers, distant but sympathetic allies. But in an editorial in the middle of February the editors warned about the “McGovern Republicans,” the people who would be so doctrinaire in the choice of a candidate that they would render the party incapable of winning a presidential election.

The editors were particularly vexed by the way in which members of the Christian Coalition had taken out after Steve Forbes during the campaign in Iowa. As a result, they said, the leadership of the “religion right” can claim two principal effects: “It has left the party’s most Reaganite candidate, Steve Forbes, ‘cut off at the knees’ (as one put it), and it has made the party’s only litmus test whether the candidate supports a constitutional amendment to ban abortion.”

But the editors of the Journal quickly acknowledged that the pro-life movement has been willing to support even “pro-choice” Republicans who have found some common ground (as, for example, on withholding the public funding of abortions). They also know that the pro-lifers have been willing to support many modest, first steps well short of a Constitutional amendment. Hence the move for the ban on partial-birth abortions. What then is the problem, and why suddenly all this wringing of hands over a constitutional amendment?

Obviously, something else is at work, and it may be worth raising, in turn, some obvious questions, the kinds of questions that might occur to people who are happily unburdened with subtlety. For example, if it is really such a needless annoyance to have a plank in the party platform on a constitutional amendment—if that plank is so futile—then why are people so impassioned about it? Why do they feel such a pressing need to repeal that part of the platform? Why would they not be content instead to wink knowingly and live with a platform that has only the remotest chance right now of being enacted into law? If we can answer that simple question, we would readily explain the simple motives that lead pro-lifers to come down hard on those overly clever people who would free the party from the encumbrance of this plank on abortion.

As the readers of this column know, I can be counted in that party who have thought it a massive blunder, overall, that the Republican platform on abortion has focused almost entirely on the promise of a constitutional amendment. That arrangement has produced this odd, perverse combination: It has permitted politicians to endorse a pledge that they know has virtually no chance of passing. At the same time, it has relieved them of the need to say anything about abortion in the rest of their campaigns. They find no need then to put on the table any concrete proposal on abortion and defend it. What we have needed from candidates is talk, the kind of talk that brings to the surface the reservations, the points of uneasiness, felt widely in this country even by those who call themselves “pro-choice.” Politics at its best is teaching, and what we have needed here precisely is the kind of teaching that leads the public, step by step, from the uneasiness commonly felt, to the deeper reasons that may form, once again, the ground of the law on the matter of abortion.

In my own reckoning, a constitutional amendment is likely to be achieved only after the public has advanced, in that way, through a chain of moves, firming its convictions with each step. If the elves could come in the middle of the night, and we could awake the next day to find a pro-life amendment suddenly attached to the Constitution, none of that would make much difference if we had not worked our way to that point by learning anew, with each step, the reasons for restraining abortions. If an amendment were simply enacted it would merely be regarded by many people as an act of imposition. For they would evidently be far from grasping the reasons that would make it eminently reasonable and justified to have a constitutional amendment.

Of course, nothing runs deeper in the mission of the law than the object of protecting people from the lawless taking of their lives. As the Founders understood, the purpose of the government was to secure and enlarge the protection of natural rights, and that understanding has already been reflected in the Constitution—most notably, in the provisions that would protect people from the deprivation of “life, liberty, or property, without due process of law.” One of the Founders, James Wilson, recalled the practice, running back to ancient Greece, of exposing newborn infants, or confirming to their fathers the power of life or death. But the common law, he said, marked off a radically different tradition: “With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law.”

In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases from every degree of danger. (Lectures on Jurisprudence, [1790-91]).

It is only in our own day that jurists have found some ingenious devices for talking themselves out of that elementary point. In that event, it could hardly be useless or inapt to make explicit, in the fundamental law, the things that were once understood to be implicit in our law.

But again, we need no amendment for the sake of protecting “life.” What would be needed more precisely is a provision making clear that the lives protected in the law encompass “‘all human beings, including their unborn offspring at every stage of their biological development, irrespective of age, health, function or condition of dependency.” It is an admirable thing, no doubt, to get clear on first principles, but this addition to the fundamental law would also have, at this moment, a deep practical utility. Conservative jurists have favored for years the notion of returning the matter of abortion to the legislatures in the separate states. Yet, we now find in the courts of the states judges who have been tuned to the temper of activists. Many of them would be willing to find, in the constitutions of their states, the same right to “privacy” that produced the “right to an abortion.” And so: we set out to return the issue of abortion to the public arena, to the people and their elected representatives; but we may end up with judges removing the matter once again from that realm in which citizens are free to deliberate and reach a judgment. Or the judges may do that, at any rate—unless we foreclose that move decisively with a constitutional amendment.

Morally, legally, the case for a constitutional amendment makes eminent sense. And politically, the willingness to discard that plank in the Republican platform may be a litmus of imbecility. The passion to remove that plank is tied directly to the understanding that brought it forth: The amendment was a dramatic signal that the composition of the Republican Party was changing, that the party was open to new people, drawn from different circles, and restoring to the party some ancient moral concerns. To put it more directly, that plank marked the Republican Party as the pro-life party. The drive to remove that plank must be understood as nothing less than a drive to diminish the standing of those people in the party, by teaching that their ends are finally, in the scale of things, just not that important. It is a drive, in short, to have the party cease being the pro-life party.

The motives on all sides should be plain enough, and once that is clear, it would not require any special genius to notice the outlines of the settlement. There is no need to jettison the plank on a constitutional amendment. The issue of abortion has always been a net gain for the Republicans, and the plank in the platform did not impair three landslide victories in the 1980s. But the amendment may be described as a fitting, ultimate end: We are seeking to lodge the protection of life securely in the fundamental law as we seek to place abortion, in America, “in the course of ultimate extinction.” In the meantime, the party can make it clear that it means to launch out on that journey now with a series of small steps.

We may avert, with each step, only a handful of abortions or save a score of lives. But those are no trifling measures, and we can say at least this: that the cast of the party will be set in the direction of protecting human lives. How many are saved will be contingent on circumstances. But the character of the party would be, blessedly, fixed, and that character would not depend on contingencies. The party could then plausibly offer this account of itself: It is, in the end, a political party, anchored in this world, seeking to minister to a community deeply divided in its moral judgments. But the party means to move, with prudence, through a series of moderate steps, in extending to all persons the protections of the law and planting again in the country a respect for the sanctity of life. Nothing utopian, nothing borne of political panic. Just steady work.

By

Hadley P. Arkes (born 1940) is an American political scientist and the Edward N. Ney Professor of Jurisprudence and American Institutions at Amherst College, where he has taught since 1966.

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