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The Question:
1/28/08 email to the CCF from Elisheva Levin:
Hi,
I found your site as I was looking for a
Thomas Jefferson quote, and I found the two essays that I read
by Tim Lewis quite thought-provoking. Do you think it is
possible for one to be in sympathy with your message
aboutconstitutional freedom and at the same time disagree with
you about some of your particular stands?
I have grave concerns, for example, about
amending the constitution to give the unborn fetus the same
rights as a person who has been born. It is not that I believe
that abortion on demand is a good thing for women, families or
society, but rather that I can foresee situations in which, in
order to preserve her own life, a woman might decide that an
abortion is necessary.
It also occurs to me that forcing certain
health-care decisions on a womanby legislative fiat would
deprive her of her right to life and liberty andpursuit of
happiness. It also seems that this would impose a certain
religious view upon people who do not profess that religion. My
religion, for example, although it does not countenance abortion
on demand, does permit it (and even mandates it) in situations
in which the life and health of the mother are in grave danger.
It is interesting that although Professor
Lewis argued that one cannot achieve perfect (cosmic) justice,
and one ought to consider carefully what changes in
constitutional law might do to the benefits of liberty for
ourselves and our children, it seems that conservatives also
believe that they are somehow above the normal limits of the
human race, and ought to legislate in order to deprive others of
the ability to act in their own moral interests. This is no
different than the liberals who believe that they are above the
normal human limitations and ought to legislate in order to
deprive others of the ability to act in their own economic
interests.
At first, upon reading your the essays, I
was overjoyed to find an organization that champions our
Constitutional liberties, only to find that certain ideologies
of force against individuals are argued for the benefit of a
specific religious world view. These are just as dangerous to
our liberties as the use of force against individuals for the
benefit of a specific economic world view.
I write this, not with anger or righteous
indignation, but rather with disappointment.
Sincerely,
Elisheva Levin
http://www.ragamuffinstudies.blogspot.com
Professor Tim Lewis's response:
Dear
Elisheva,
First off, let me
thank you for reading some of the essays. I encourage you to
read the rest for you will find some very interesting and
important materials on American history that you may want to
incorporate into your home schooling curriculum and which is not
covered by most textbooks. Further reading might also clarify
my position in your mind and give you a lot of interesting food
for thought, which, from the sounds of your letter, you enjoy
consuming.
See:
http://www.constitutionalfreedomfoundation.org/Articles/Articles.htm
I would argue that
the issue of abortion is not a federal matter for the reasons
stated in 2nd, 3rd, and 5th
essays. The U.S. Supreme Court has inappropriately nationalized
this issue when it constitutionally and rightfully belongs
within the province of the states. If the Supreme Court were
not willing to reverse its judicial activism and return that
issue to where it rightfully belongs, I would favor an Amendment
that would return the issue to its rightful state domain without
trying to definitively resolve the issue one way or the other.
By allowing it to
reside with the states, political majorities would decide the
issue state by state. People would be free to vote their
conscience one way or the other, be they religiously motivated
or not, in the process.
The benefit of this
approach would be that the political losers in that contest
would have a political escape value, or pressure relief valve,
if they found they couldn’t bear to live with their political
loss. They wouldn’t have to start a revolution to get their way
politically. If the issue were that important and compelling to
them, they could easily flee what they perceived to be a local
tyranny without jeopardizing their American citizenship. They
could pick up and move to a different state where the views of
the political majority better matched their own political/legal
philosophy. In other words, they would consider the relative
balance between liberty and law existing in one particular state
compared to that of another, and consider that along with the
many other things people consider in deciding where they want to
live—things like job opportunities, proximity to family and
friends, the relatively beauty of the surroundings (or lack
thereof), etc.
Whenever free
societies form, they must decide how much liberty they desire
versus how much law—in other words, they must decide (1) what
should remain within the sphere of liberty, freedom, and mere
moral persuasion versus (2) what should be moved from that
sphere over to the sphere of legal mandate or force. Reasonable
minds will often disagree as to where a particular issue should
reside between those two spheres.
While it is true that
it may be presumptuous for a religious majority to politically
force a particular view upon an irreligious minority (or a
differently motivated religious minority), the same could be
said the other direction. But again, that is the beauty of
Federalism where we can have several different experiments
playing out around the country to give us future points of
comparison in deciding which political/legal approaches
ultimately work the best and create the type of civil society we
desire.
The appropriate degree
of separation between church and state, was originally within
the province of the states to decide for themselves. In the
first days of our nation, some states supported particular state
religions and some even imposed religious tests as
qualifications for both suffrage and elective office. Over
time, as they compared what was happening in their states with
what was happening in other states that did not have such a
close connection between church and state, every state in the
union eventually did away with all such internal religious
tests. Consistent with both the letter and spirit of the
Constitution, the federal government did not force the issue in
a top-down format, but rather, the people within the various
states decided these matters for themselves based upon their own
best judgment. And that is the way it should have been
handled. And that is the way the issue of abortion should be
handled; and that is the way it was handled before the Supreme
Court usurped authority and nationalized this issue and made
themselves the ultimate decider of the issue from the top-down.
In deciding what is
right or wrong, good or evil, better or worse and what should be
legal or illegal, free or forced, people are going to refer to
some sort of internal moral compass to guide their decisions.
One’s moral compass may have religious origins or not. It would
be both inappropriate and impossible to try to squeeze all
religious beliefs out of the political process in making those
decisions—just like it would be to try to squeeze out all
irreligious beliefs from that process.
As food for thought,
let me give you a real case to consider. A few years ago, a
German, Armin Meiwes, wanted to become a cannibal. He placed an
ad on the Internet trying to find “a young, well-built man who
wants to be eaten.” Bernd Brandes anxiously answered his ad.
They met and discussed the proposition and made an agreement.
As a precautionary measure in case the authorities wanted to
prosecute him for murder, Meiwes video-taped a conversation
between him and Brandes wherein Brandes said that of his own
voluntary free will and choice, he really wanted to be killed
and eaten by Meiwes. Meiwes then killed him and ate 44 pounds
of him before being arrested by the authorities and prosecuted
criminally, and later convicted.
What was Meiwes’
defense at trial?-- that both he and Brandes were consenting
adults and that society had no right to interfere with their
freely pursuing what they both deemed to be in their own mutual
best interests. Meiwes argued that no harm was done to Brandes
since he really wanted to be eaten as the video proved. In
effect he was saying that society should not be able to trump
Brandes’ own definition of harm when it came to his own body and
therefore, his decision should be left within the sphere of
individual liberty rather than put into the sphere of legal
mandate or force.
In deciding that legal
issue politically, should only an irreligious person’s opinion
count or should religious people be allowed to use their
religious beliefs to inform their political opinions on the
matter too? Does that question even make any sense?
To explain what I mean consider two possible conflicting
philosophic/religious positions held by parties A and B.
Let’s suppose that A
believes there is a God who has declared that life is sacred and
should not be taken away, even by one’s own self through
suicide, and that people will face serious consequences on
judgment day in the next life for violating this natural law.
Moreover, he believes that to the extent his nation observes or
disobeys natural laws, that it will be blessed or cursed
accordingly. Based upon those beliefs, A politically supports
the passage of a law making it a criminal offense for Meiwes to
kill Brandes under the foregoing circumstances (i.e. taking the
issue out of the sphere of individual liberty and freedom and
putting it into the sphere of legal mandate or force.)
In contrast, let’s
suppose B believes there is no God, nor any hereafter, nor any
ultimate judgment, nor that life is inherently sacred, and
consequently, that a person is free to take his own life, or
that of another, without any moral consequence in any sort of
hereafter. Moreover, he believes there is no such thing as
national blessings and cursings from God based upon obedience or
disobedience to natural law. Based upon those beliefs, B
politically opposes the passage of a law making it a criminal
offense for Meiwes to kill Brandes under the foregoing
circumstances (i.e. voting to leave the issue within the sphere
of individual liberty and freedom.)
Is it really
reasonable and fair to portray A’s belief as religious and B’s
as irreligious? Aren’t they both, at heart, religious beliefs
just differing religious beliefs? Even if you were not willing
to use the adjective “religious” to describe both sets of
beliefs, wouldn’t the winning side of that political contest
effectively be politically forcing a set of mere beliefs
onto the losing side? Hence, it would be impossible to excise
all religion/morals from the political/legal decision-making
process. Most laws have a moral base to them and hence, in a
republic/democracy, the majority usually imposes its moral will
on the minority as a simple fact of political/legal life. In
this process, as argued above, it is unfair to say that only
“religious” people do this unless you were willing to broadly
define everybody as “religious.”
The same could be said
about A or B’s position on the issue of abortion.
True, any attempt to
legally regulate abortion would have an impact on the mother’s
health care decisions (i.e. her individual liberty). Normally
we would be inclined to leave all of those decisions entirely up
to her own free will and choice when nobody else is affected by
her decisions. Only when another life—the developing human life
within her—is affected by her decisions, do we even consider
restricting her freedom of choice for the sake of that other
life. When that developing life should become entitled to legal
protection is a matter of widely varying opinion and belief
throughout society.
At first the Supreme
Court ruled that the developing child gained a legally protected
right to life as it reached the point of viability outside the
womb and that only after that point could a state restrict the
woman’s choice to abort. But then the court effectively said
that up until the point of actual delivery outside the womb, the
mother was free to abort even if the baby was viable outside the
womb. With the legal line being drawn there, one could see how
some could argue that the line should be pushed out even further
from the viable-unborn-life to the born-life. For example, a
“bio-ethicist” from Princeton, Peter Singer, argues that we
should allow parents so-many days after a live birth to decide
whether or not to kill their handicapped child.
Singer’s moral
framework for decision-making, which differs quite radically
from other people’s moral frameworks, is:
“I do think that it is sometimes
appropriate to kill a human infant. For me, the relevant
question is, what makes it so seriously wrong to take a life?
Those of you who are not vegetarians are responsible for taking
a life every time you eat. Species is no more relevant than
race in making these judgments.” (Federalist No. 05-16, April
20, 2005)
Along the same line of
thinking, might not somebody else argue further that until a
person is capable of independently taking care of all his human
needs himself, he should not yet be legally recognized as a
person entitled to any sort of legally protected right to life?
Under this argument, parents would be legally entitled to
terminate the life of their child through sometime in his late
teens—a tempting thought, no doubt, to some parents, but rife
with moral implications, as are all of the potential points
along the way at which legal lines could be drawn. Are you
willing to say that a person’s religious/moral beliefs should
have no impact on his political decision as to where he thinks
the line should be drawn? If you could successfully squeeze all
religious/moral considerations out of the legal line-drawing
process, what would be left to consider?
Most people would
agree that harmless things should remain in the sphere of
individual liberty and that only harmful things should be the
potential focus of legal regulation. In deciding what type of
harm should be sufficient to move something from the sphere of
individual freedom to the sphere of legal mandate, should we
only consider harm to individuals or should we also look more
globally at harm to society as a whole as well? Should we only
consider direct and immediate consequences? What about indirect
and delayed consequences and general societal tendencies? Let
me illustrate what I mean.
Moral/social norms
fall along a continuum. As their acceptance evolves among
society, certain points must be passed first before others can
be reached. For example, is there any doubt that Singer’s
proposition described above could never have any chance of
garnering widespread political support unless society could
first be made to morally and politically accept the idea of
abortion for convenience?
A Jewish Rabbi named
Ken Spiro wrote an interesting book entitled World Perfect.
Many of the following quotes come from his book.
“Infanticide during
antiquity has usually been played down despite literally
hundreds of clear references by ancient writers that it was an
accepted, everyday occurrence. Children were thrown into
rivers, flung into dung-heaps and cess trenches, ‘potted’ in
jars to starve to death, and exposed in every hill and roadside,
‘a prey for birds, food for wild beasts to rend.’ (Euripides,
Ion, 504) (Lloyd DeMause in his essay “The Evolution of
Childhood” quoted by Ken Spiro, in World Perfect.)
This was done by an
immediate member of the family, usually the mother or father.
(Spiro)
None other than
Aristotle argued in Politics that killing children was
essential to the functioning of society:
“There must be a law that no imperfect or
maimed child shall be brought up. And to avoid an excess in
population, some children must be exposed. For a limit must be
fixed to the population of the state.” (Politics VII.16)
A callous letter from
a Roman citizen named Hilarion to his pregnant wife, Alis, dated
June 17th, circa 1 CE read:
“Know that I am still in Alexandria. And
do not worry if they all come back and I remain in Alexandria.
I ask and beg of you to take good care of our baby son, and as
soon as I receive payment I will send it up to you. If you
deliver a child [before I get home], if it is a boy, keep it, if
a girl discard it....” (Ken Spiro, World Perfect)
How far is it from
there to the coliseum craze of watching people torn to shreds
for mere entertainment?
“On a typical day when the Coliseum was
playing to a full house, the place was crowded with men, women
and children – yes, the Romans thought nothing wrong with
exposing children to this kind of grotesquerie. Admission was
free, and a pillow for your seat, meat and wine were provided,
also for free....
“During intermission, giant fountains
sprayed perfume in the air to reduce the stench of death.
Entertainment did not stop, however. In between the spectacular
killings were held run-of-the-mill executions by burning,
beheading, and flaying (that is, skinning people alive.)...
“Trajan...held a major tournament in which
10,000 gladiators and 3,000 animals fought. This meant that
whoever sat through that spectacle watched at least 5,000 people
die....
“...Commodus (emperor from 180 to 192 CE)
organized fights between crippled people and finished them off
himself.” (Ken Spiro, World Perfect)
While we might
disagree as to the specific order of the components and perhaps
even want to add some more, we can see from the foregoing that
the moral continuum regarding the protection, or taking, of life
looks something like this:
Abortion---> Partial Birth--->
Assisted----->Euthanasia—> Infanticide---->
Infanticide---->
early stages abortion
suicide (Terry Schrivo) of the abnormal
for population
(late term) (Dr. Kavorkian)
(Peter Singer) control
Infanticide---------> Killing off
the------->Consensual---------->Death for sport---------> ?
for
convenience aged and infirm
Cannibalism (Roman Coliseum)
for convenience (Miewes/Brandes)
& control of costs
Is it appropriate for
society to see the logical progression of things and draw a line
beyond which it will not allow itself to go regardless of
individual consent and the desired exercise of individual
liberty like the case of German Cannibal Armin Meiwes discussed
above or even regarding abortion? It may be a slippery slope
taking only a very short time to move along the continuum from
left to right or it might not be so slippery and take several
generations to move from one point to another. But is it
appropriate for us to foresee the eventual logical extensions of
our tendencies and, by the force of law, apply the brakes to
channel the direction of civil society? Do we want to promote a
culture of life or a culture of death in our society? Where we
decide to draw the legal line along that continuum will tend to
telegraph our answer.
Either a legal line
must be drawn somewhere along that continuum or nowhere at all,
which, in the latter case, would grant unrestricted individual
liberty to the killer but no protection (and hence, no liberty)
to the victim resulting in terror, anarchy and chaos. Whether
one thinks it appropriate or not, I think it is inevitable that
people will consider their own personal religious/moral beliefs
in politically determining where to draw that line. And
certainly, they may ultimately turn out to be right or wrong in
the process.
Of necessity, any line
drawing, or none at all, by the political majority, will impose
some sort of moral or immoral position upon the political
minority. So even though some people say “you can’t legislate
morality,” it happens all the time on both the right and the
left of the political spectrum—in our Constitutional form of
government, the political majority is supposed to effectively
decide whose sense of morality serves as the basis of law and
not the courts.
As you indicate, the
mother’s health is an obvious concern when it comes to drawing
any line regarding abortion. I read into your letter that you
might be inclined to legally prohibit abortion so long as
certain exceptions applied. I wouldn’t be surprised if a
majority of people in your state politically agreed with you. I
think the majority of your state should draw the line in your
state and a majority of my state should draw the line in my
state. That is what the Constitution allowed before the U.S.
Supreme Court usurped authority over the issue.
Also, we must realize
that wherever we choose to draw legal lines between liberty and
law, there will always be some occasions where we don’t think
the outcome is just or proper. This does not necessarily
mean that our legal line is drawn in the wrong place. Of
necessity, in order for the law to be understandable and
predictable (which are both necessary pre-requisites to
fostering respect for the law and general willingness within the
populace to voluntarily comply with it) we must primarily deal
in generalities and allow some injustices to occur along the way
without rushing after the ever-elusive mirage of perfection by
trying to carve out exceptions for every possible contingency.
In other words, we must construct general rules with few
exceptions lest we gobble up the general rule with a
multiplicity of exceptions and make the law totally
unpredictable and disrespected in the process.
Rather than trying to
maximize (or perfect) any particular societal goal or
objective, we should seek to optimize all of them as a
group realizing that in trying to perfect our achievement of any
particular goal will force us to sacrifice other worthy goals
and objectives in the process. We must condition ourselves to
be able to accept a certain amount of imperfect legal
applications as a type of unavoidable background noise. Of
necessity, we must learn to live with that problem even though
it seems that most people find that proposition to be
unacceptable and are constantly demanding that the law be
impossibly fine-tuned to perfection.
Some might be inclined
to say: “unless we could be assured of its perfect application
in all possible settings, we shouldn’t have the proposed law in
the first place and should leave the matter in the sphere of
individual liberty.” But since few, if any, laws could possibly
have perfect application in all possible settings, that would
mean that we would have no law and total liberty, which would
eventually lead to anarchy, chaos, and terror as bad people
exercised their liberties upon the rest of us.
Again, letting the
various states wrestle with these issues and draw their own
legal lines, would allow us to see many different
approaches/experiments play out and help us to fine-tune our
legal line-drawing over time if necessary—just like the various
states did regarding religious tests.
After all, the
“Constitutional liberties” you mention in your email include our
rights of local self-determination of these, and other issues
requiring the drawing of lines between liberty and law. For a
people to call themselves “free” does not mean that they are
subject to no law, but rather, they are subject only to those
laws they themselves have given their government the power to
make. At any time they can withdraw previously granted powers
or grant more. Ultimately, the people are free to choose their
own collective limits on their freedoms for the sake of
achieving the type of civil society they want. When this is
done from the bottom-up as per John Locke’s Compact Theory of
Government and our Constitutional form of government derived
therefrom, then political majorities rule. When this is done
from the top-down through judicial activism, then often times
political minorities rule.
I am willing to let
the people in states different from my own, make their own
tradeoffs and moral judgments and draw the various legal lines
on things like abortion the way they want to, no matter how
foolish or wrong I might think their decisions to be, so long as
those decisions weren’t forced on me and they would allow my
state the privilege of the same type of political autonomy.
Wouldn’t you be willing to do that too, or would you be so sure
of yourself that you were right and they wrong, that they should
be denied the right of local self-determination regarding how
things should be done legally within their own states?
I am not sure if I
read you correctly, but it almost seems as if you are saying
that a decision for more freedom and less law is always
the right decision to make. But then it seems you are not
saying that by implying you might be in favor of prohibiting
abortion so long as appropriate exceptions are included in the
package. Although individual freedom is a very compelling and
important human desire and need, isn’t it possible that a vote
for more liberty and less law regarding a particular issue might
actually turn out to be wrong, or at least sub-optimal, when all
things are considered besides just the individual liberty of the
actor or even the collective liberty of everybody involved?
Certainly I would think so, but would tend to be very careful in
my analysis before making a judgment to impair liberty.
To reiterate, I think
that rendering moral judgments—even those derived from
religion—is not only appropriate, but necessary, in making
political decisions. Of necessity in the process, the
conceptualization of morals held by the winners in the political
contest will be forced upon the losers in that political
contest. Were that not so, how could we have ever abolished
slavery in this country? In closing out this discussion,
perhaps it would be interesting to compare the issue of slavery
to the issue of abortion.
Those who argue for
abortion rights often say “you can’t force your morals onto
everybody else by outlawing abortion.” Following that line of
argument, were we wrong to outlaw slavery? Weren’t we, in
effect, forcing a set of morals onto the slave owner population
that they disagreed with? We never had any laws forcing people
to become slave owners – couldn’t people back then say:
“Personally, I think slavery is morally wrong, but I’m in favor
of pro-choice – if somebody else wants to be a slave owner, that
should be a product of his own voluntary choice without any
interference from the law.”? But the immediate follow-up
response would be: “What about the free and voluntary choice of
the slaves themselves? A slave owner has no right to impair the
freedom of another human being. That is why we can
appropriately prohibit slavery as a matter of law. After all,
more than one person’s liberty is at stake here.” But back
then, some pro-slavery advocates argued that black people
weren’t human beings and hence, were not entitled to enjoy what
everybody else considered to be basic human rights.
That pro-slavery
argument would seem preposterous to us today, but isn’t it the
same argument being made about a fetus by those of the
pro-choice camp? When should the fetus be considered to be
human thus entitling it to human rights? When should its
liberty become important and worthy of legal protection even to
the point of trumping the liberty interests of its mother? As
mentioned before, effectively the Supreme Court has ruled that a
fetus is not a human being, and hence has no human rights to be
protected by the law, until it is born. But isn’t that an
arbitrary dividing line between being non-human and human? A
baby is helpless and cannot survive on its own for many years
after birth, so should it not be considered human until it later
becomes fully independent of his parents? This was already
discussed earlier when I mentioned Peter Singer. But aren’t
those questions pregnant with moral implications as was the
issue of slavery? How could it reasonably be argued that all
moral implications should be politically out of bounds in
drawing our various legal lines?
Anyway, after that
lengthy (and rambling) explanation, I don’t know if we are
closer together in our philosophies or farther apart. In any
event, I respect your willingness to think these things through
carefully and hope that I have given you some valuable food for
thought.
Sincerely,
Tim Lewis
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