My friend Paul Seaton comments thusly about my previous post on "law and/or order":
"I liked this particular post by Dr. Pat very much. He laid more of his cards on the table than is normally the case. I can't help but think that his Carey McWilliams-inspired view of the Constitution (and Publius) blinds him to certain things that can -- and should and must -- be done: teach proper constitutionalism. In Peter Lawler's formula, instruct any and all why Roe was wrongly decided. In mine: critique "privacy and autonomy" jurisprudence. That's a political-cultural need that all we polisci (and fellow-travelling) folks can assume, isn't it?"
Implicit in this view, a golden age of lawfulness and constraint was undermined by nine men in black robes who ushered in the era of "privacy and autonomy." The result of such decisions as Griswold, Eisenstadt and, above all, Roe v. Wade was the replacement of lawfulness with autonomy, of communal norms with individualism. Our current cultural miasma is the direct result of bad jurisprudence, and many contemporary Republicans are content to purchase any bill of goods peddled by any of the candidates so long as they can promise x-number of Justices who will rule to reverse the decisions of the late-sixties and early-seventies. Many Republicans will be voting beginning in about a month's time for a pro-choice candidate whose only bone to social conservatives is a promise to appoint justices like Scalia, Thomas and Alito. For many, this is enough.
Let's say that President Giuliani (::shudder::) nominates the Justice who overturns Roe and sends abortion policy to the States. President Giuliani would overnight become our new Stephen A. Douglas, being able to do little more than encouraging the States to set their own policies in accordance with their own values. Not having the foggiest idea of why he would even be appointing such Justices other than to appease the right wing of the Republican Party, Giuliani would have nothing to say other than acknowledging the right of each state to "vote up or down" as they pleased. In this sense, Giuliani would be not really be any different from all the Republican presidents since and including Reagan, for whom the issue of abortion is an issue to be resolved by the Courts and went no further. By understanding this as an issue of jurisprudence they have accepted the playbook of the liberals who taught them to fight all the discrete battles of the cultural wars in the Supreme Court. It's a lazy man's battle in which we eschew the hard work of working in the fields of politics and culture - since, let's face it, most "conservatives" like the libertarian culture just as much as the liberals - and put our money on the symbolic victories of winning judicial nominations and court cases. All the while, no one has pointed out that you don't really need to reverse Roe v. Wade to "win" the abortion battle if you persuade people that the language and philosophy of choice needs to be replaced by the language and philosophy of duty and obligation. Has any "pro-life" Republican President been preparing the ground for a post-Roe future, much less seeking to repair the culture of our Roe-governed present?
I am reminded of the egregious case a few years ago of the man who ran a crematorium whose incinerator was broken. Rather than paying to fix the incinerator, he began scattering unburied bodies all over his property and giving mourners fireplace ashes posing as the remains of loved ones. When his horrific deception was discovered, the state of Georgia sought to prosecute him only to find that there was no law on the books forbidding the non-burning of corpses entrusted to crematoria. As a result of this, at least 26 states passed laws banning what this man had done. Do we really think that it was the absence of this law that encouraged him to commit this horrible deed, or that it will be presence of the law that will discourage most people from leaving corpses unburied? In this case we can see that the law very often functions as a means of prosecuting lawbreakers, and in many fundamental ways is not the source of a deeply shared set of cultural norms. Mitt Romney has recognized as much in saying that he would support a Constitutional Amendment banning abortion as an "apsirational" goal - since he full recognizes that a constitutional amendment would require widespread support that would need to exist before its passage. If the norms are widespread, the law becomes an endorsement and encoding of those norms and a means to prosecute the few outliers who disobey them. That's hardly where we are on this issue that purportedly is one of THE central concerns of the Republican party.
It's quite certain that if Roe were overturned, many many States would continue to have liberal abortion laws. Its overturning might result in some fewer number of abortions among lower income women who couldn't travel to a more liberal State (anyone want to celebrate limiting abortions only to the wealthy?), but in the main little would change. What would then be the arguments that would need to be made to discourage the practice not now as part of a judicial strategy, but as the encouragement of a set of cultural and moral norms? Not a single Republican (nor, of course, Democrat) could tell you, because not a single one has ever made a compelling argument. Instead, for more than thirty years we have dutifully heard candidate after candidate tell us that they oppose abortion and will seek to appoint certain kinds of justices.
Thomas Frank argued in his book What's the Matter With Kansas? that Kansans were being hoodwinked by Republican power players to vote on social issues that they would never see fulfilled, all the while supporting a party whose main interest was the advancement of economic advantages for the wealthiest. While I disliked the argument about "false consciousness" in his book - i.e., that the Kansans were voting against their true interest, which was economic - I found it hard to disagree with his analysis of the cynicism of the Republican party use of social conservatives. Should Giuliani be nominated, it will be proof positive that Frank's thesis was correct - that those social issues were never really at the heart of the party's agenda (duh). But, even should he not be nominated, the jury is still out (as it were) whether any candidate is prepared to use the bully pulpit and educative role of the Presidency to move the polity away from our half-century of libertarian self-indulgence and to urge self-governance in all its forms. Such admonishment will have to encompass not only "social" issues but "economic" issues as well, since the two are ultimately deeply and intimately connected. I don't imagine for a moment that such a change will occur quickly or easily, and much of modern life militates against a transformation to a polity of self-governance. But, it's high time to move beyond the banal simplicity of our prevailing assumption that the resolution to the culture wars are the province of the courts or sound jurisprudence (necessary, yes, but hardly sufficient), and to begin doing the hard work of cultivation.