On his blog and on Mirror of Justice, Stephen Bainbridge has turned from the issue of gay sex to that of abortion. Here is what he says:
It’s not just about sex. Barnett’s expansive theory of the 9th amendment is at least as radical as William O. Douglas’ theory of penumbras in terms of its ability for judges to invent reasons to strike down laws. Hence, Barnett’s theory apparently validates not just Lawrence but also Roe v. Wade. Any legal theory that would validate the murder of over 40 million innocent unborn children raises serious moral concerns, because it likely constitutes material cooperation with evil.
Wow! Now this is a serious charge (and a serious rhetorical escalation), but does it hold up? To see, let us compare my approach to the Constitution on this score with his.
On my theory of the 14th Amendment in which all its limitatations on states are justiciable, IF a fetus is a “person” then laws permitting abortion violate the Due Process Clause, and if a fetus is also a “citizen” (and if the fetus is a person, then why isn’t it also an American citizen too?), it also violates the Privileges or Immunities Clause. On this reasoning, state laws permitting abortion should be held unconstitutional, and under Section 5 of the 14th Amendment, Congress has the power to protect fetuses from murder if a state fails to do so.
While I do not consider a fetus to be a “person”–either theoretically or historically–Bainbridge does. Yet HIS theory of the Constitution in general, and of the 14th Amendment in particular, would allow abortion–which he considers evil and murder–to continue unchecked so long as a mere majority of the legislature so vote. Indeed, the pro-life forces repeatedly say that they this is an issue properly to be left to the states.
Now theirs IS a principled position, and the principle is one of fealty to democratic majoritarianism. But it certainly is a theory of the Constitution that protects what Professor Bainbridge thinks is evil, so long as a majority disagrees with him about abortion. This is not hypothetical. At the time of Roe, some states had legalized abortion, a result that HIS theory of the Constitution permits.
To avoid being misunderstood, let me be as clear as possible about the steps in this reasoning.
GIVEN that a constitutional theory of judicial conservatism based on a commitment to democratic majoritarianism entails that courts ought not overturn the results of a state legislative process.
IF the legislative process of a particular state results in legalizing abortion.
Does it not follow from this that:
THEREFORE a constitutional theory of judicial conservatism based on a commitment to democratic majoritarianism would, under this forseeable and realistic condition, “validate the murder of over 40 million innocent unborn children” and therefore “raise[] serious moral concerns, because it likely constitutes material cooperation with evil.”
Does Professor Bainbridge’s commitment to the democratic majoritarian reading of the Constitution trump his commitment to the individual right to life of the fetus? Or would it be “morally” preferable to adopt my view of the Constitution, including the justiciability of the 14th Amendment, and argue either historically or on the basis of evolved understanding that the fetus is a person?
This dilemma, along with the downward spiral over judicial nominations, is what comes of picking one’s constitutional methodology mainly or solely to reach certain results in certain cases.
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