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Monday, October 24, 2005

What does . . . , Part IV

Thanks to Hillel for answering my question about Miers, Roe, proxies, and results-oriented-ness.  Hillel asks if I mean to propose and endorse the following:

Although this correlation [i.e., between opposing abortion and believing that Roe was wrong] exists, we also ought to assume that one's position against Roe is purely jurisprudential and from a different source than her opposition to abortion generally.

I didn't intend to claim that we "ought to assume that one's position against Roe is purely jurisprudential[.]"  My claim was (intended to be) more limited (and less interesting):  "It's one thing -- isn't it? -- to think, based on observations, experience, and anecdotes, that anti-abortion views likely correlate with a view that, as a matter of constitutional law, Roe was wrong.   It seems like another thing, though, to think that the reason Roe was wrong is because abortion is wrong." 

Like Hillel, I do not think I know enough about Ms. Miers to be confident that her opposition to Roe does not depend on her moral opposition to abortion.  But I do think that "conservatives" who are making the move from "Miers opposes abortion" to "Miers thinks Roe was wrong" are not (necessarily) guilty themselves of "confusing policy preferences with jurisprudence."

Hillel also observes: 

I don't for a moment believe that the majority of the people who are interpreting these signals ("she favored a constitutional amendment, so she must want to overturn Roe") have put much thought into these questions either.  Many of them oppose Roe simply because they believe that abortion is wrong.  And that's the very same thing they accuse liberals of, except in the reverse.

I'm not sure.  My own impression -- which could be wrong, of course -- is that the pundits, commentators, and law-types who are "interpreting these signals" actually do believe that Roe is wrong as a matter of constitutional law and not just because abortion is wrong.  (I'm not talking here about politicians or even persons-on-the-street.  For non-law-types, I imagine that -- on both sides -- one's "views" on abortion are entirely reducible to one's "views" about abortion).  What's more, my impression is that there is actually more "separation" between views on abortion and views on Roe among those who are anti-abortion than among those who support abortion rights.

Hillel asks, "Don't many [conservatives] start with the proposition that abortion is fundamentally and morally wrong, and therefore it can't possibly be protected by the Constitution?"  I don't think so, actually.  In my own experience (which certainly could be unrepresentative), anti-abortion critics of Roe concede that the Constitution, properly understood, insulates many "morally wrong" actions from government regulation. 

In any event, though, Hillel and I agree entirely that "conservatives should be careful to note that the question of whether [conduct] is immoral or bad is different from the question of whether it ought to be legal[.]"  I am cheating a bit, I know, and editing "abortion" out of Hillel's question.  This is because it could be that the reason why abortion is immoral (if it is) serves also as a stronger-than-usual reason why it should be (generally) illegal (cf., e.g., lying to a friend).  But, as a general rule, I am happy to agree -- indeed, I believe strongly -- that the law need not, and should not, prohibit every vice or require every virtue.  Thanks, Hillel!

Posted by Rick Garnett on October 24, 2005 at 11:00 AM | Permalink


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