It’s all a hypothetical debate point, so who knows?
But, the part of your series of questions which I quoted above parallels, somewhat, exemptions to anti-abortion laws for women whose health is endangered by a pregnancy: exemptions which six states that have enacted abortion bans since Dobbs do not feature.
That wasn’t a freestanding condition, it had two conditions.
citizens who have medical conditions which make it dangerous to appear in the summer sun without clothes, who need to appear in public to exercise a federal right (such as attending a townhall, or federal court)
That being said, I support serious health exceptions to abortion bans as a matter of policy. Just not enough to support the federal government exercising powers not delegated to it by the Constitution.
~Max
I’m glad that you do.
Then, once again, the situation which we now have is exactly what you get. Being conservative about a narrow Constitutional scope for the federal government’s powers means that you will, absolutely, be allowing individual states to democratically enact laws which are – intentionally – injurious, even deadly, to some people, as they have in this case.
I mean yeah, I know. It’s not a good outcome. I admitted that at the very beginning.
~Max
I take issue with the OP’s title that implies the only way to value democracy is by adhering to the Constitution. Even if we were to agree on a particular interpretation of the document, it is but one implementation of democracy. Perhaps it is time for another.
What do you think is a reasonable amount of time for a ‘democratic grind’? Women’s property rights and suffrage were 60-70 year grinds. Do we need to expect to wait until 2085-2095 before we can enshrine an additional human right? When does the clock start for the right to abortion? 1973? 2025?
I appreciate the value of changing core policies carefully and methodically, but we’re well past that point. There’s no way to ratify an amendment – the bar is just too high. There isn’t any policy that 38 states would agree on.
If the Constitution cannot reflect the will of the people, then it undermines our very democracy. This on top of the shock many of us had when we realized just how much our system of checks and balances depended on the constraints of tradition and decorum and on the willingness of the other branches to assert their authority.
Let me try and distill my political philosophy as concisely as possible. It may not look it, but I do try and keep an open mind. Participating on these forums has shaped how I think and even how I vote.
Political order depends on a stable configuration of power.
The sovereign ultimately rests on kratos (power, threat of violence).
Sovereigns are displaced by power, not moral argument alone.
Law is ultimately what the sovereign says it is.
Legal obligations are imposed by sovereign power.
The sovereign embeds moral commitments in its laws.
Law reflects moral judgement on power distribution.
Individuals may condemn laws as immoral.
Moral condemnation does not invalidate laws.
Moral obligation to the law arises via social contract.
Participation in the social compact entails reciprocal moral entitlements and obligations.
Withdrawal from the social compact forfeits reciprocal moral claims beyond basic human decency.
The sovereign of the United States is its people.
The law of the United States distributes some of the sovereign power among the federal and state governments; other powers are reserved to the people.
The power to regulate abortion access is largely delegated to either the states or the people, depending on state constitutions.
Therefore,
When is it moral to reject the law? We have historical precedent to teach us.
The United States is structurally flawed and often anti-majoritarian, yet it remains a functioning democratic republic. It has not always so remained. The institution of chattel slavery fundamentally undermined the political order, culminating in the secession of the Confederate States in 1860. Why was the Confederacy in the wrong, and the Union in the right, in 1860? Though the result was dictated by strength, our moral judgment is not. Neither can the atrocity of slavery provide the answer; the Union allowed slavery. Slavery drove the Confederacy to secede, but the Union did not go to war to eradicate slavery. No, the Confederacy was wrong because it was wrong for those states to secede. There are mitigating circumstances that justify withdrawal from a social compact, but a desire to preserve slavery is not such a reason.
Individuals oppressed by state abortion laws may be morally justified in resisting them, for the same reason slaves were morally justified in revolting. They are not immune from legal consequences. But fidelity to the law is morally required for those who participate in the system, particularly those who wield authority or reap benefits under it. Judges who cannot in good conscience enforce the law should resign; citizens who cannot in good conscience abide by the law should consider emigration, if possible; otherwise weigh fidelity to the law against the moral consequences of withdrawing from the social compact. Thus, Socrates drank hemlock; the slave attempts escape; the citizen either harbors a fugitive, turns him out, or reports him. The United States’s refusal to recognize a federal constitutional right to abortion does not, in my view, fundamentally undermine the political order in the way slavery did. Therefore, the only moral course available to me is to work within the system and live with the consequences. I acknowledge that I am privileged; women who face injury or death confront a different moral calculus.
A fundamental difference between many of us involves how we understand state-level authority. If the Constitution does not delegate abortion regulation to the federal government, then that authority resides with the states or the people. I do not view state-level deprivation of a claimed right as categorically more illegitimate than federal-level deprivation. Once constitutionally authorized sovereign power settles an issue, the moral fork is the same: work within the system to change it, or reject the system and accept the consequences.
If a constitutional amendment banned abortion nationwide, I would see only two coherent paths: pursue repeal through amendment or abandon the system entirely. Many seem to believe we reach that fork only under a federal ban. I believe we reach it whenever sovereign authority–federal or state–resolves the question within the constitutional framework.
History reflects this pattern. The institution of chattel slavery was embedded in the constitutional order and ultimately destroyed only after a decisive shift in power forced the ratification of the Reconstruction Amendments. Prohibition was imposed through law and later repealed through the same constitutional mechanisms. The system can entrench grave injustices. Change comes only when power shifts–either expressed through the structure or forced upon it.
~Max
Slavery ended because the Right lost a war, and were forced to officially abandon it. Just as they were forced to allow women to vote, and forced to end segregation, and force to allow same sex marriage. Slavery would still be the norm in the South if democracy had been permitted to settle the issue. The Right responds to nothing but force.
Your “leave it to democracy” plan means that women permanently lose the right to abortion, probably end up losing the vote and legal citizenship, and are reduced to subhuman chattel for as long as the nation endures. Because in a right wing nation like the US, all that matters is who has the power to clamp an iron fist around the throat of the other side. “Democracy” here is a lie and a joke.
I think you just said that it’s right and moral to judge whether an action is moral or not by whether it directly affects you. I disagree with that. You should be using the same “moral calculus” as someone directly affected.
I’m not sure if we disagree. In a previous debate about abortion, I argued that if you agree to supervise a friend’s child, your promise creates a stronger obligation to protect that child than your own. But in an emergency situation, I can’t blame you for following instinct.
That being said, a woman may be justified in rejecting the social compact that forces her to risk death. If she has rejected (or been pushed out of) the social compact, she is no longer morally obligated to follow the laws. I can recognize that her actions are moral even though her actions do not directly affect me.
This approach helps me, for example, reconcile civil disobedience and a law that I think is moral. Or the failure in practice to redesignate evil laws as void.
~Max
Using the terms of “the Right” and “the Left” as they exist in the present day and imposing them onto the past isn’t very useful or applicable. Just as a reminder, the Republican Party
The Republican Party was founded in 1854 by anti-slavery activists who opposed the Kansas–Nebraska Act and the expansion of slavery into U.S. territories. It rapidly gained support in the North, drawing in former Whigs, Free Soilers, and former Know Nothings. Abraham Lincoln’s election in 1860 led to the secession of Southern states and the outbreak of the American Civil War. Under Lincoln and a Republican-controlled Congress, the party led efforts to preserve the Union, defeat the Confederacy, and abolish slavery. During the Reconstruction era, Republicans sought to extend civil rights protections to freedmen, but by the late 1870s, the party shifted its focus toward business interests and industrial expansion.
And if we’re going to apply Right and Left to the past, the Know Nothing Party was about as Right as you can get. So, if we’re going to just use Right and Left as you seem to want to, the Right was anti-slavery, and the Left was pro-slavery.
Oh, and the man who drafted what ultimately became verbatim the 19th Amendment granting women the right to vote, Aaron A. Sargent. Do you want to make any guesses on what party he was? A Republican Senator from California. “Republican” and the “Right” aren’t synonyms for “people in favor of things I don’t like”.
Der_Trihs was clearly referring to right-wing (conservative) politics, that is, the Confederacy and Southern Democrats.
~Max
Which, again, is using modern Right/Left terminology and imposing it onto the past. The Know-Nothing Party, which was one of the founders of the Republican Party, was about as Right as Right wing or conservative as conservative can get. They were an extremely xenophobic, nationalistic, anti-Catholic, anti-Irish, anti-German, anti-immigration, Right-wing populist party. They also happened to be pro-abolitionist. Just like the Whigs.
And as for women’s suffrage, I hate to break it to you, but it was the Republicans in favor of it and the Democrats who opposed it. In 1920. Quite a while after the Confederacy has ceased to exist.
Nineteenth Amendment to the United States Constitution
Between January 1918 and June 1919, the House and Senate voted on the federal amendment five times.[42][51][52] Each vote was extremely close and Southern Democrats continued to oppose giving women the vote.[51] Suffragists pressured President Wilson to call a special session of Congress and he agreed to schedule one for May 19, 1919. On May 21, 1919, the amendment passed the House 304 to 89, with 42 votes more than was necessary.[53] On June 4, 1919, it was brought before the Senate and, after Southern Democrats abandoned a filibuster,[42] 36 Republican senators were joined by 20 Democrats to pass the amendment with 56 yeas, 25 nays, and 14 not voting. The final vote tally was:[54]
- 20 Democrats Yea
- 17 Democrats Nay
- 9 Democrats Not voting/abstained
- 36 Republicans Yea
- 8 Republicans Nay
- 5 Republicans Not voting/abstained
What is your point? Der_Trihs may not always be precise, and you’ve shown that some of the “Right” did not favor slavery, but his point seems clear enough.
~Max
And long before they changed sides, during the civil rights movement. Parties are just brand names; it’s always the same people, the bigoted Southern-dominated faction that ran the Confederacy, once ran the Democrats, and now runs the Republicans.
And they want everyone who isn’t white to be eliminated, and women to be tormented and subjugated.
@Dissonance I do not see the distinction you are trying to make. I think most people here are aware that Democrats and Republicans switched the names they labeled their ideologies. That doesn’t mean that right leaning ideas are not right leaning ideas they’re just called republican/conservative now. The same goes for left leaning ideas they are now democratic/liberal maybe progressive ideas. I don’t think der tris implied republicans of that time were right leaning.
It’s a standard rhetorical tactic the Right likes to use, to ignore the fact that the parties switched sides in order to pull a “gotcha” on their opponent. And to claim the modern Republicans aren’t as evil as we can all see they are by using pre-1960s Republicans as cover.
I hate to break it to you, but your cite makes it clear, it was Southern Democrats who opposed it. In other words, conservatives.
We’re veering into “No True Scotsman” territory here.
No, we’re/I’m pointing out a presentism fallacy.
The Republican and Democratic parties of 1920 are not the Republican and Democratic parties of 2020.
Anyone familiar with them is aware that the party and ideological distinctions are no longer the same. I.E. up until very recently, in our lifetimes, both parties had ideological wings that had more in common than those wings had with their respective parties in general. Simply, there were conservative Democrats, usually referred to as the Southern Democrats, and liber Republicans, referred to as Rockefeller Republicans in their last iteration.
IOW, pointing to the past and claiming ‘the Republicans were in favor of it and the Democrats opposed it!’ is disingenuous as best.
No, we’re simply noting that the parties are, as I said, just brand names that have no innately held political positions. And that historically the far-right Southern Conservatives has managed to seize control of whichever party they are a part of; originally the Democrats, now the Republicans.