By Mark
Responding to Ross’ response to his response to John’s post on abortion last week, Freddie DeBoer writes:
I don’t quite understand believing both a) abortion is murder and b) let’s leave it up to the states. Would even the most ardent federalist not support a national ban on murder? We famously (and at great cost) declared one limit on federalism to be the right to traffic in human lives; slavery was simply too great an evil to be up to the will of individual states. Is preventing murder not a similarly great evil?
While I am in the “mushy middle” when it comes to abortion, I tend to think that abortion represents almost a perfect example of the type of issue for which federalism is particularly well-suited. As Freddie has argued, the issue of abortion is fundamentally a philosophical/moral issue rather than a scientific issue, depending almost entirely on where you define the limits of personhood.
To me, this precisely implicates what I discussed down-blog about the usefulness of federalism as a way of solving problems where there is what amounts to a dispute on the definitional limitations of a concept. The abortion debate is to my mind the perfect example of such a situation – we have a universal or near-universal agreement on a core concept of “human life,” namely that, at a bare minimum, a viable child that has been delivered out of its mother’s womb constitutes “life,” and is thus entitled to the full benefits of legal personhood. But once you start expanding upon that consensus opinion, you have varying definitions at the edges – many, many people would say that a fetus that is viable but still inside the womb constitutes “human life” entitled to some form of legal personhood, with ever-fewer people agreeing the closer you got to conception. At this point, virtually any honest observer will recognize that there are good-faith reasons for just about any conceivable boundary on the definition of human life, as long as that definition recognizes the humanity of human beings who have survived birth.
What federalism achieves is to allow ever-smaller groups to operate under a similar definition of “life” that better approximates the consensus amongst those groups (keeping in mind, again, that our current system admittedly allows for states that are often too large to have a true consensus; nonetheless, consensus at the state level is much easier to achieve than it is on the national level). However, federalism does not require that a group “accept” a different definition of where life begins and ends, except to the extent that definition is imposed directly upon them. What federalism does is to merely require that a group tolerate the existence of a different definition outside of their jurisdiction.
Such tolerance does not require a remarkable amount of compromise, particularly where we recognize that other good-faith definitions exist. In the abortion context, Ireland, despite its restrictive abortion laws, nonetheless joined the quasi-federalist EU. Frankly, we tolerate the existence of behavior that we find not only morally repugnant, but that does not even involve a good-faith difference on the boundaries of a concept; we do not, for instance, go out and invade every nation that we find to lack any regard for basic human rights (nor could we).
As for the slavery question, I would argue that was justified under much different grounds than the justification for federalism, at least from the justification for federalism for which I am arguing. Its explicit allowance in the Constitution was almost entirely a function of simple political reality. Moreover, any system of federalism at this point is (thankfully) subject to the Thirteenth and Fourteenth Amendments, which can – and should – act as safeguards for federal interference with state infringements of universally agreed-upon “core” concepts. Importantly, the slavery issue did not emanate from a controversy over a definitional boundary, at least not a good-faith controversy – after all, it was the slaveholding states that pushed for inclusion of slaves in calculations of representations (in other words, they did not deny the “personhood” of slaves when it served their purposes). Still, any advocate of federalism at this point must recognize the valuable role of the Thirteenth and Fourteenth Amendments in creating a morally acceptable system of federalism.
Filed under: abortion, conservatism, government/law, politics
I think this is entirely consistent with the “Second Founding” thesis we’ve discussed earlier, but I wonder if libertarians are willing to accept a range of communal restrictions on individual behavior at the state and local level.
Will – absolutely. In my opinion, federalism without a rigorously enforced 13th and 14th Amendment is fatally flawed.
As for whether libertarians are willing to accept state and local restrictions, the issue is fundamentally one of the question “how local?” Paleo-libs are most certainly willing to accept local restrictions on individual behavior – but they have a tendency to lose sight of individual rights in the process. But the vast majority of libertarians I know would likely be ok with local restrictions – but only so long as residents could be said to have voluntarily consented to those restrictions, and only so far as those restrictions do not infringe upon core, universal (or near universal) conceptions of human rights. On the one hand, the emphasis on localism allows for greater consensus underlying relevant government policy (which provides greater legitimacy to that policy); on the other hand, it also provides individuals who are unsatisfied with their government with a relatively easy opportunity to move to a government they find more acceptable (which again gives greater legitimacy)….it’s a lot easier to move from, say, county to county than it is to move from state to state.
Probably the closest thing to an ideal that exists would be something similar to the Swiss canton system, in which the “states” are barely the size of American counties, but have far more autonomy from the Swiss federal government than do American states. A few months back, I wrote a couple of posts that discussed how Switzerland is without a doubt the closest thing in existence to Libertopia (a conclusion that, as it turns out, is now supported by various rankings of social and economic freedoms), although it is far from perfect.
The enthusiasm for leaving abortion questions up to the states mysteriously vanishes when pro-life legislation has enough votes in Congress to pass a bill. See partial-birth abortion. I didn’t see a single pro-life group or prominent spokesperson denouncing the bill as a usurpation of states’ rights. Did you, Mark?
Thrax:
My argument is about how the abortion issue is a good example of where an improved form of federalism can be helpful as a manner of solving good-faith disagreements. I, frankly, am relatively disinterested in the specific issue of abortion; instead, I am extremely interested in the broader issue of applying more consistent federalist principles, particularly on issues for which a true national consensus is inconceivable/impossible.
While certain groups may be less than consistent in their application of federalism, I do not pretend to speak for those groups (with whom I probably disagree far more often than not, I might add). Indeed, as I say above, I personally fit well within the definition of the “mushy middle” on the abortion question.
Pointing out the potential hypocrisy of someone else does nothing to address the actual arguments I make here.
I’m not doubting your commitment to federalism, but I think the example of partial-birth abortion shows that, in the context of abortion, federalism commitments go approximately one inch deep. As Freddie says, pro-lifers aren’t, in fact, willing to tolerate what they consider murder simply because it happens in another state. People talk a good game about federalism, but in practice it never seems to trump any other principle.
Whether it should is, of course, a separate question, and I understand that you’re arguing that it shouldn’t. Realistically, though, as long as each side is pushing abortion policy on the federal level, the other side isn’t going to refrain from doing the same.
Er, rather, you’re arguing that it should.
To be sure, the commitment of many pro-life groups to federalism is weak, at best. . . and don’t get me started on the way in which certain “pro-family” groups fight to infringe all sorts of rights on the federal level when something happens that they don’t like on the state level.
Ultimately, though, where Freddie’s argument falls short is in assuming that there is no one who is pro-life who could tolerate legalized abortion in a co-equal jurisdiction. I think there are quite a few who could find that as a happy compromise, recognizing that there are good-faith differences as to when life begins.
One problem with Roe, though, is that it has effectively federalized a debate that is much more appropriate on a local level, where consensus is much easier to achieve. In so doing, on the specific issue of abortion, I think John is exactly right to argue that Roe has made amicable compromise virtually impossible.
To my knowledge, before Roe, there was virtually no federal legislation on the subject – it was entirely a function of state law.
The big problem with Roe is not that it invented some sort of “right” out of thin air, as some conservatives argue (it doesn’t), but that it attempts to decide an issue that simply is not within the competence of the courts, much less the federal courts, to wit: when does life begin for purposes of determining personhood.
One thing that is particularly frustrating about Roe (again, keeping in mind that I do not identify with either the pro-choice or pro-life side of this question) is the way in which pro-choicers hold it up as some sort of a paragon of impeccable jurisprudence. It simply isn’t, and there are many prominent legal scholars who are in fact pro-choice as a matter of policy who have found the decision extremely lacking and inappropriate, even going so far as to argue for its overturning.
I follow this a fair amount, and I’ve never seen anyone “hold up” Roe “as some sort of a paragon of impeccable jurisprudence.” Some agree with the reasoning; some think it should have been reasoned different (e.g., as an equal protection issue). As a piece of legal reasoning, it’s nowhere near the best decision the Court has made; it’s nowhere near the worst, either. I don’t believe I’ve ever seen a pro-choicer argue otherwise.
As for whether there are consistent federalists in the pro-life camp, there may be. But if any of them spoke up when abortion was being federalized in a pro-life direction, I missed it. The relevant question in a poll would not be “could you live with abortion being illegal in Texas but legal in California?” but rather “would you vote against pro-life legislation in Congress on federalism grounds?”
(For what it’s worth, the challenge to the federal partial-birth abortion ban–at least, the challenge that made it to the Supremes–did not include a federalism challenge, suggesting that the hypocrisy is not fully symmetrical.)
As for the courts deciding when life begins: sure, not really in a judge’s job description (state or federal; I don’t see how state judges are better equipped). Not really in a legislator’s job description either, though, in my view, since there’s no good way to sort out the various scientific and philosophical issues, and the limited experience of the bunch of people who happen to be serving in the legislature at any given time does not necessarily afford them superior insight. Hence, it should be a matter of individual conscience. That’s why I’m pro-choice. Not that you asked.
And just to be clear: I’ve never seen a judicial decision on abortion that says “life begins at such-and-such event.” Several have used various points (trimesters, viability of the fetus) as a triggering point for more intrusive regulation, but I’ve never seen one that said “we pronounce this point the beginning of life.” It’s a rough approach to balancing the interests at stake; it’s far from perfect, but let’s recognize that courts didn’t get into it because they’re power-grabbing jerks. They got into it because they viewed the abortion decision as triggering privacy rights that (arguably) are part of the Constitution. Reasonable people can disagree about every step of that, of course, but if you grant for these purposes that there’s a constitutional right at issue, I don’t really see what else the courts were supposed to do.
In other words, the question is not whether courts should have made a rough stab at approximating when life begins for purposes of establishing a limited right to abortion. The question is whether courts should have established a limited right to abortion. Given the latter, I don’t see a serious argument for not doing the former.
Thrax:
While attorneys and people with a legal background will rarely hold up Roe as a cornerstone of American jurisprudence, the political debate, with its “Save Roe at all costs” theme, is very much colored by this ideal.
I agree that state judges are likewise ill-equipped to define the beginning of life, and I’m not arguing otherwise – just that it’s particularly inappropriate at a federal level. Where I disagree with you, however, is this:
“Not really in a legislator’s job description either, though, in my view, since there’s no good way to sort out the various scientific and philosophical issues, and the limited experience of the bunch of people who happen to be serving in the legislature at any given time does not necessarily afford them superior insight.”
I actually think this is a fundamental, core responsibility of the legislature. At a bare minimum, a legislative body must define in some manner who is and is not within their jurisdiction, ie, who is and is not entitled to legal “personhood.” Also, the fact that there is no good way to sort out the various scientific and philosophical issues is precisely why it should be within the realm of a legislature to define – in areas where there is no clear-cut scientific, constitutional, or legal answer, but where some sort of rule of law is nonetheless necessary, the legislature is uniquely qualified to provide that rule of law.
It may, of course, be necessary for Congress to define “personhood” at some point, anyways, but it’s worth remembering that in a truly federalist system of governance, the effect of that definition would be quite limited to such issues as taxes, census calculations, etc. Arguably it would have an effect on federal murder charges as well – but only to the extent it occured on federal land. Of course, we don’t live in a truly federalist system anymore, which is why pro-life organizations have been able to push for federal restrictions on abortion.
For what it’s worth (not much), my arguments would largely still leave issues like SSM in the courts under equal protection jurisprudence, since there is no dispute that gays are persons under any definition. Of course, since I think SSM is a fundamental right, I might be a little predisposed to that conclusion.
Defining who is a *citizen* is absolutely a core responsibility of the legislature, and well within its competence. But defining who is a *person*? When exactly potential human life becomes actual human life? Unless we start electing scientist-philosophers, I don’t see any reason to think that the legislature has insights superior to mine. This probably isn’t the only instance where legislators have to weigh in on difficult philosophical questions arguably beyond their ken, but it’s certainly one of the more striking examples. We don’t ask legislators for their views on the existence of immortal souls or afterlives, or on whether human nature is intrinsically good or evil. I wouldn’t be any happier with a 50-49 vote in the state house that purported to resolve those questions.
I’m not saying the other branches are better equipped, or that the state system is more or less prepared to address these points than the federal system. I’m saying that this is a matter that is best left to individual conscience. Admittedly, a digression from your original point.
As a broad matter, I agree with you – a 50% plus one vote does not in any way justify infringements on individual rights. On the other other hand, to the extent legislators act as delegates of the people they represent, they are capable of representing consensus opinions.
The big problem with returning to a traditional federalist approach, though – and as I suggested in my previous post – is that modern states are far too large to possess much legitimacy or, in many instances, to build a true consensus. There is simply no rational reason, for instance, for a voter in Orange County, CA to vote on legal standards that will disproportionately affect people in the San Francisco are. For this reason, I also argue for drastically empowering governments on the municipal and county level while reducing powers on the state level.
In essence, my argument amounts to an argument for less-powerful state and federal governments, and significantly more powerful municipal and county governments, with the primary responsibility of the federal government to enforce fundamental rights.
The problem, in the case of abortion, is that, depending on how you define “life,” you have two potentially competing fundamental rights – the mother’s right to privacy, and (if you determine a fetus to be a legal ‘person’) the fetus’ right to life. Regardless, at some point, you have to draw a line between what is and is not ‘life,’ which as a matter of law must necessarily be an arbitrary line that, as you correctly note, is fundamentally tied up in philosophy, science, and, yes, religion/morality. The problem with the courts drawing this line is that it makes the line a permanent one, even though there may not be any consensus on where that line should be drawn. Courts, unfortunately, are poorly equipped to overrule precedent, which means that they do a terrible job of being informed by philosophical and/or scientific developments, as well as by changes in national/local consensus.
Legislatures, while still often slow to respond to changes in science/philosophy and consensus, are much better-equipped to do so, depending as they do on the support of their constituents.
One final caveat – I want to make extremely clear that none of this is to show any disrespect to the judiciary, which I think on the whole does a magnificent job. Indeed, I would argue that most of the truly bad precedent that exists is when the courts were simply not activist enough in protecting individual rights. The abortion issue is one of the only instances (maybe even the only instance, but I’d have to think about that more) where I think the Court actually did “legislate from the bench,” perhaps the most overused phrase of ideologues everywhere.
One last, very important point. A legislature must define not just who is a citizen, but who is a person for purposes of its murder statutes. At some point, the dividing line between a legal person and a nonentity for purposes of murder statutes becomes extremely blurry. For rule of law purposes, that line must be defined. I think legislatures are far more capable of defining that line, primarily because where you draw that line is so necessarily arbitrary.
I don’t disagree that, to the extent governments (at whatever level) are taking sides on abortion, the legislature is the least bad place to do it. I just don’t think the legislature should be doing it either, and I view the additional badness of the courts getting involved as marginal. Legislatures are somewhat better than courts at undoing mistakes, but they’re still not very good, owing to major biases in favor of the status quo that make passing legislation much, much harder than blocking it.
As for devolving the decision down to local government–in large part, that’s the system we already have. If you’re in a conservative rural area and you need an abortion, generally you travel to a large city; abortion clinics in most rural red states are few and far between. Support for abortion rights, miraculously (as with liberal views generally), is strongest in urban areas. Giving small towns or large cities the power to ban abortion wouldn’t make a tremendous amount of difference in practice. Yet that doesn’t seem to stop a lot of those same small-town conservatives from jumping in the car and driving to Wichita, Omaha, or wherever to protest an abortion clinic.
All this is to say, as Freddie said, that those who feel strongly about the issue won’t be satisfied simply because abortion is or isn’t happening in their hometown. The chances are pretty good that the availability of abortion in their hometown already matches their preferences.
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