Life Watch: Encounter in New Orleans

Not too long ago, a group of jazzmen were doing a parody of the “Folk Musician,” the kind of fellow who tunes his guitar while he explains, with folksy pretentiousness, how he happened to write this next song. And so the saxophone player explained to the audience that “This next number was inspired by an airline pilot down South who completely overshot his runway and landed in the Gulf. It’s a tune that asks the question, ‘Do you really know what it means to miss New Orleans?'”

I can report now that I wish I did. Last year some writers familiar to this journal managed to set off tremors in the land when they participated in a Symposium on “Judicial Usurpation” in the pages of First Things. And now, a year later, some of us were invited to the law school of Loyola University in New Orleans by its engaging new dean, John Makdisi. We were invited to offer a restatement of our position and respond to our critics. In turn, some fresh critics, recruited from the local faculties of law, would respond to us. In the middle of October, then, I joined Fr. Richard Neuhaus, Russell Hittinger, and Robert George in restating—and sharpening—our arguments. But what we received in response, hardly any of us could have anticipated.

I have had the occasion to summarize, in these pages, the concern of that symposium in First Things. The writers contended that we were faced with nothing less than a crisis in the political regime, and we were urging our readers to take seriously the argument made by Lincoln during our “crisis of the house divided”: that we could have a regime that was republican in its outward forms, but altered in its substance into something gravely different. We contended that through a series of decisions on abortion, euthanasia, and gay rights, the federal courts were imposing on the American people premises that were simply incompatible with the logic of “natural rights” and the moral foundations of this constitutional order.

Lincoln had argued that the doctrine of self-government had been perverted to mean just this: “If any one man chooses to enslave another, no third man shall be allowed to object.” And now we contended that the doctrine produced by the courts on abortion amounted to just this: that there is a new private right to use lethal force for wholly private reasons. One person may now claim to kill a second person, a second being, for reasons that do not rise above convenience, and under those conditions a third person may not object. That third person, or the rest of the community, may not object, because this is now, as we are told, a matter of “privacy.” Whether the laws on homicide will be extended or contracted, to protect children in the womb or leave them unprotected, is not to be considered any longer as part of the legitimate business of the polity.

Our contention was that this new right to kill for private reasons could not be cabined. It could not be confined to children in the womb, because it was quickly converted into a license to withhold medical treatment from newborn infants with spina bifida or Down’s syndrome. Neither has it mattered, in the grisly case of partial birth abortions, that we are at the point of birth, with about 70% of an infant’s body extruded from the birth canal. The partisans of abortion themselves insist that no restrictions may be made on abortion at these points, because any restriction at all would call into question the full corpus of rights created under Roe v. Wade. And as we have seen over the past several years, judges have not been shy about moving from the rights of privacy in Roe to the “right” of grownups, well outside the womb, to order assistance in their suicide. This “right,” then, to take life will not be cabined. Or so at least we contended—and we waited for the counterarguments.

But no counterarguments came forth. Instead, the dean of a nearby law school (not Loyola) insisted that the pro-life movement had no interest in protecting children after they were born. The pro-life leaders in Congress, Henry Hyde and Chris Smith, he denounced as Republicans more committed to the interests of corporations than to the lives of the unborn. Father Neuhaus, in his incredulity, turned to the speaker and asked whether he actually knew these men. The speaker reported that he had made their acquaintance. Neuhaus asked then whether, in good conscience, he could offer that construction of the motives of these men. And the dean, without a flicker of hesitation, responded firmly that he could. As for the Constitution, this dean, educated at Harvard, was content to offer the audience the understanding of the Constitution held by Chief Justice Taney in the Dred Scott case: that the Constitution was tainted from the outset, for it held blacks and women as beings with no rights that the rest of us were obliged to respect.

An audience that included several black students and professors apparently found nothing odd or alarming in this construction, for it is the construction routinely offered up these days by the Left. That this understanding had been thoroughly refuted by Lincoln, at least in regard to blacks and slavery, was a matter that had wholly escaped their studies. But beyond that, Lincoln himself and his teachings had clearly run beyond their comprehension. As we invoked Lincoln’s arguments, and drew out, precisely, their powerful bearing on our situation, we were met by looks of puzzlement, even on the faces of black people. As one black student remarked, “Lincoln was then; this is now. What has Lincoln to do with abortion?” Indeed, what has Lincoln to do with the willingness to remove the protections of the law from a whole class of beings through the simple expedient of claiming that they are something less than human? As Harry Jaffa once remarked, in restating the teaching of Lincoln: A free people should be obliged to respect, in the first instance, the premises on which their own freedom rests. We found, in New Orleans, a group of students of law who were utterly uninformed about the premises on which their own freedom rested.

One respondent was a senior professor at the law school at LSU and the holder of a chair in law. He managed to surprise Robert George by announcing that the Court, in Roe v. Wade, had created a right of abortion only in the first trimester. Professor George, who is the soul of kindness, had been willing to suffer a string of inanities and patronizing comments at the hands of this man, but now even he had reached his limit. He reminded his interlocutor that in the companion case of Doe v. Bolton, the Court had declared that a woman could nevertheless order an abortion at any stage of the pregnancy if it were necessary to her “health.” At the same time, health encompassed “mental health”—which is to say, that an abortion could be ordered at any time if the absence of the abortion could cause distress to the pregnant woman. In the face of this correction, the professor of law refused to be corrected. Professor George had to appeal then to the members of the audience who had actually read the cases. (I hold back here from mentioning names, for even good people may have their “off days” and say things they would not say with deeper reflection. Still, what was revealing, in the encounter, were the things that came flowing out, as people spoke what they apparently believed.)

At another moment, a pleasant young woman, a member of the faculty at Loyola, challenged my argument by asserting that the womb of a woman was involved. That cardinal fact, she thought, would offer a limit to the principle I was pressing. That principle had to do with the claim that it was unjustified to take the lives of innocent beings. In response to her challenge I remarked that the principle must be indifferent to location: If we are dealing with an innocent being, whose life we cannot be justified in taking, it hardly matters that the life is to be found in a bus station—or a womb. To this she responded, “Are you saying that my womb is like a bus station?” A former student of Robert George’s at Princeton, present that day in the audience, left the room with a minor quivering of disbelief: “Haven’t these people ever heard of analogies, of principled argument or moral reasoning?” He seemed to be shaken now, in the style of one removed to a strange land, somewhere outside the domain of reasoning that the rest of us inhabited. But we are quickly learning that what we took for granted in the past, as part of the understanding of our people, we can no longer so casually assume. The discipline of principled reasoning is apparently a rare experience, confined to certain enclaves in the country. And as we move to the end of this century, so destructive of life and of reason, those enclaves seem to be contracting ever more—and diminishing in their number. They cannot be counted on any longer in the places we call universities, and we delude ourselves if we suppose that they survive in those universities that call themselves Catholic. What can we do? As the late Joseph Stanton instructed us: We persist. But even the most hopeful among us will find it useful to have a sober view of that curious tribe of Americans, growing stranger by the year in this once-familiar landscape.

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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